A little over a month ago, the question arose: how long before the anti-revenge porn advocates would go after the Safe Harbor provisions of Section 230?  The answer appeared, via a post by Josh Blackman, in an article in U.S. News & World Reports:

Activists seeking to criminalize “revenge porn” say they are working with a member of Congress to prepare federal legislation that would force Internet companies to take down the sometimes X-rated content.

The proposed law has not be [sic] finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

And what’s at the heart of this effort?

Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.

“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”

The Communications Decency Act, however, doesn’t trump federal criminal law, she said, pointing to child pornography.

Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet.  After all, what’s free speech when compared to their feelings?

As noted in the article, Matt Zimmerman of the Electronic Frontier Foundation explains why this could be a disaster:

“Going after intermediaries is a really bad idea,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation. “The entire speech ecosystem ends up suffering because those service providers [would] decide what people can and cannot post, even if it isn’t illegal.”

Zimmerman says EFF doesn’t have any sympathy for posters of the offensive content, but considers criminal law a “dangerous” way to pursue culprits.

“Frequently, almost inevitably, statutes that try to do this type of thing overreach,”  he says. “The concern is that they’re going to shrink the universe of speech that’s available online.”

Behaving in their best corporate interests, Zimmerman says, Internet companies would likely respond to such a law by removing content any time there’s a complaint, to reduce their liability and to save time.

Not to let facts or truth stand in the way of her zealous advocacy, Franks pretends this never happened:

I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.

Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.

But she doesn’t stop there:

It is unfortunate that neither of the two anti-criminalization articles that have received attention so far (the Wired piece you link to and Cathy Reisenwitz’s piece at TPM) addressed the specific laws that I have helped draft (Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work.

Her comments at Co-Op were an insipid exercise in deflection and ad hominem.  Notice here that she cherry picks her detractors, mentioning (and dismissing) “Professor” Bennett only because Blackman mentioned him in the post. Not to call Franks disingenuous, but rather willfully seeking to conceal commentary that doesn’t support her. Intellectual (not to mention, basic) honesty must be for tenured lawprofs, not babies like Franks who have never seen the inside of a courtroom, who are free to artfully spin as hard as they can.

Lawprof Danielle Citron joins the fray in Blackman’s comments, adding their “Eugene Volokh approves” spin.  Not even Josh Blackman is buying that crap:

Eugene Volokh (by my count) last blogged about revenge porn in April 2013 [well before Franks and Citron began their campaign to rid the internet of things they don’t like]  (http://www.volokh.com/2013/04/…. His endorsement of the law was with some reservations.

But the wheels continue to grind, and politicians continue to see the opportunity to grab some love from ending the blight of revenge porn at the expense of free speech (which they aren’t all that thrilled about anyway).

It’s happening. Up to now, most lawprofs have sat silently on their hands, many thinking that this is sheer madness but unwilling to come out and call bullshit on their fellow academics for fear of being labeled misogynists.  What do you plan to say or do about it after the damage is done?

Update:  Mark Bennett replies to Mary Anne Franks’ claim at Josh Blachman’s blog that she  responded to all his questions:

Ms. Franks, your claim that you responded to my critique of your rationalization of your proposed statute is untrue, given that when I pointed out in comments on Concurring Opinions that you hadn’t responded to it, you replied, “I do not have endless amounts of time to read everything that people write about me or my ideas.”

I am just a simple small-town lawyer, lacking in the elaborate manners of the academy, so I hope that Josh will forgive me for any lapse in decorum. You know what we lawyers call someone who claims to have done things that she knows she didn’t do? “A liar.”

That is, indeed, what we simple small-town lawyers call people who lie. Liars.