Follow The Money, Revenge Porn Edition

Adam Steinbaugh broke the news late yesterday that a third revenge porn “king” was arrested.

Meyering is the second revenge porn site owner to face extortion charges in California.   Kevin Bollaert, who operated YouGotPosted, was arrested on thirty-one felony counts in December and is awaiting trial.  Revenge porn kingpin Hunter Moore was arrested on federal ‘hacking’ charges in January. Nobody, including Meyering, has been charged under California’s new revenge porn law, at least in part because the Communications Decency Act prohibits many state-level criminal charges against website owners.

Despite the rhetoric of how it’s critical to make sacrifices to “soft” constitutional rights like free speech in order to rid society of a blight like revenge porn, it turns out to be false.  As with most outrageous conduct with a financial incentive, strip it of its motivation and you can eliminate the manifestations.

There was never any question that revenge porn was a blight on the internet and caused terrible harm to its victims.  The self-proclaimed saviors like Mary Anne Franks appeared incapable of grasping the distinction between condemning the conduct and not supporting hare-brained new laws that swept constitutionally protected speech within its ambit.

They stomped the country seeking weak-minded legislators who wouldn’t understand that you don’t fix one harm by causing another.  And they faked their way through arguments against them by lies and distortions, betting that their supporters were too stupid to realize it or too blinded by hatred to care.

This reflects a far broader message than just revenge porn, which has hopefully taken its last breath and will never again darken anyone’s life.  After all, if there is no money to be made in the scam, and the risk of prosecution is sufficiently high that no greedy miscreant will try his hand at being the next Hunter Moore, it will die a painful death, and no one will mourn.

But the message goes to the wealth of “new crimes” that have become a trend, and new laws being regularly proposed to stop them.  One can either focus on the symptoms or the disease.  Trying to design new laws to specifically address an evil, real or perceived, almost always focuses on the symptoms, the particular manifestations that give rise to our new-found outrage.

It appeals to the public, who are more inclined to focus on the sexy details rather than the core conduct that renders it criminal.  The fact that it happens screams that something must be done to stop it.  Of course, we have laws prohibiting murder, yet murder happens. It’s not for lack of criminalizing the conduct, but the fact that crimes occur despite the existence of laws to address them. It’s no different with revenge porn or many other new-found “crimes.”

The compulsion to do something about this specific wrong drives many to demand action.  We are a people of action, and adore the idea that if we do something, we can fix anything.  It’s unacceptable to acknowledge that people will engage in wrongdoing despite it’s being illegal, just because that’s how people roll. While revenge porn was financially motivated, other crimes are driven by passion, stupidity, selfishness and hatred, all forces that don’t tend to be affected by disincentives created by laws.  In other words, the law won’t stop them. The best it can do is punish them afterward.

Creating new crimes is a huge undertaking for society, even if it’s just a few amorphous lines on a proposed bill to a legislator.  The legislator gets a headline and some publicity for the guy who fixes whatever problem has recently made the evening news. His constituents, who appreciate nothing about vagueness or overbreadth, and instead focus only on the symptoms, applaud the legislator’s bold move.  And the unintended consequences are left for lawyers to sort out later, when the real impact of an unnecessary law hits the streets.

This isn’t to suggest there should never be a new crime, a new law, although I would argue that no law should ever be enacted under the name of a dead child or with a cool and grossly misleading acronym designed to fundamentally mislead the public into believing that the law does something entirely different than it in fact does. But laws should be passed very sparingly, and only after deep deliberation.

Like punches thrown, laws should never be passed in the heat of passion. Unfortunately, that’s where they get their best play, the most bang for the buck for legislators who propose such laws for the express purpose of soothing the public outrage. Strike while the iron is hot, or whatever cliché suits your fancy.

We’re left with the task of sorting out the vagaries of language in these hastily written laws and then trying to salvage the blameless who are swept into it because they fall within their broad rhetoric even though they were never supposed to be the intended target and engaged in conduct that no rational person would have thought to be criminal.

But hey, that’s the price of “getting” the bad guy du jour.  And, of course, it’s not like nice, regular folks could ever find themselves accused of one of these cockamamie crimes, and nobody really cares about the other guy anyway.

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