The Wrong War (Update)

A number of interesting questions/comments have been posed over the past few days about the Greenfield-Franks War, as Bruce Godfrey called it.  I responded by telling Bruce that there was no such war, at least on my part.  My fight is against laws that chill free speech and sweep in the innocent with the guilt due to their poor and overbroad wording.

This was just one of them, as there have been many others.  While criminalizing revenge porn may be Mary Anne Franks’ world, it’s just one more bad law in mine. What’s made this appear differently is her avoidance and deflection of issues by resorting to attacks and name calling.  She’s done this to everyone who has challenged her, Marc Randazza, Lee Rowland, Mark Bennett, Time Cushing, Mike Masnick and, of course, me.

I’ve been treated to particularly harsh attacks. When Sam Glover noted her cries that I’m a “pervert” at the Puddle, she responded on twitter to inform him of “the facts.” He suggested she leave a comment, but she refused:

But comments sections too often turn into launchpads for personal attacks. Just wanted you to know the facts.

Ironic, but that’s what she said.  Presumably, Franks’ “facts” prove that I’m a pervert, stupid and perhaps a few additional other words, that will harm me, damage my reputation and credibility and diminish me as an “adversary” of her quest.  As a public service, since Franks is disinclined to make her “case” in a straightforward manner, I will provide her “facts” against me in as neutral a manner as possible.

First, the Greenfield is a pervert attack.  This first “fact” is the title to this post from last October, New York to Revenge Porn: Any Selfies of Lawprof Mary Anne Franks?  Franks contends that this proves I am soliciting revenge porn against her by this title.

The second fact is my twit in this series of twits, which lives on in her screencap.

Franks Twit

Godfrey characterized it as “boorish,” which is a fair statement. Franks contends this proves I “muse about what she is like in bed.”  While she claims “there’s more,” it remains a mystery. If there is, perhaps someone will let me know and I will be happy to give it a full public airing.

But then, it’s not just that I’m a pervert, as “[h]is disgraceful conduct is exceeded only by his ignorance.” (Franks does not use my name, for reasons that are unclear.) Proof of my ignorance is offered by this post at Franks’ Tumblr, Never let facts get in the way of hysteria: Techdirt falsely claims AZ revenge porn law requires registration as sex offender.

To the extent this applies to me, it is an apparent reference to a sentence in my post on the Arizona law where I wrote that it required sex offender registration. Had she pointed out to me (rather than assume I would read her post which obliquely refers to my mistake), I would have changed it to “may require” rather than “requires.”  Now that I realize what she was talking about, I have corrected this detail.

Franks’ second “fact” proving my ignorance is a twit from last October:

Franks Twit 2

Mary Anne has been very kind about preserving my every twit, so they are available for use later. In this twit, I inadvertently write “state” rather than “federal.”   Mea culpa.  This, I believe, constitutes her proof that I’m a pervert and I’m ignorant, which has justified her attacks and failure to address any substantive issues.  Now that her “proof” is before you, you can decide its merit.

The impetus for this post comes from two queries, one by David Ziff on twitter, and another by Marc Randazza by email. Ziff asked:

just seems like given RP is bad, effort would be better spent devising 1A compliant law, rather than war of words.

I responded by twitting:

My effort is spent protecting Const. and innocents from bad laws. That’s what I’m doing. All bad laws, not just RP.

Randazza also asked whether I would be willing to work with Franks to help end the blight of revenge porn in a way that wouldn’t do harm to either innocent people or chill First Amendment rights.  I told him of course I would help to that end (aside: there has never been any question, except perhaps to Franks, that revenge porn is despicable, as was made clear from the outset), but the goal was producing good, effective law that would not produce devastating unintended consequences.

I doubted that Mary Anne Franks could untether herself from her pride of authorship or suffer any connection to anyone (specifically me) who didn’t appreciate her as she appreciated herself.  Yet, just as criminal defense lawyers work with prosecutors, we rise above pettiness for a more important goal. My goal was to protect the 1st Amendment and the innocents who would be swept into an overbroad, poorly conceived law.

Randazza also asked this question of Franks on twitter.  Here’s their twits:

Franks twit 3

franks twit 4

If sunlight is the best disinfectant, it’s now aired publicly so that anyone who wants to can draw whatever conclusion they deem appropriate.  As for me, the enormously sad and disturbing takeaway is that there is a wealth of interest in spurious attacks and no interest whatsoever in coming up with a means to end revenge porn while protecting against harm to innocent people and chilling First Amendment rights.

This isn’t about Franks, except to Franks. This isn’t about me, except to the extent Franks spends her time informing people of the “fact” that I’m a pervert. This is about law and harm, and to the extent I’ve been complicit in diverting attention from this important issue, it’s now over.  Real people will suffer the consequences of bad law, and my attention will be focused on protecting them.

Update:  As if on cue, following this post, twitterer @Alpharia challenged Franks.  This is what transpired:

Twitter _ mafranks_ @alpharia My actions are to ..._Page_1

The “conversation” speaks for itself.  She is the mother lode of righteousness, and anyone who disagrees is, well, you can read it for yourself.

 

 

 

42 comments on “The Wrong War (Update)

      1. Kathleen Casey

        You’re an alpha male with a rational argument and that threatens her, apparently. So Franks is responding emotionally, like a child, not with her intellect, not rationally. And her tactics of censorship and thought control don’t work around here. You won’t stop speaking freely!

        Part of this goes back to an old problem. Too many law schools. Many get accepted who shouldn’t be, because they haven’t the brain power to carry a rigorous argument. Or the self-discipline.

  1. Aelfric

    To be fair, as you admitted, some of your behavior can be classified as “boorish,” but my word–her self-righteousness is simply off the scale. This always seems to me to be something found in law professors, rather than actual practitioners. Practicing attorneys with any experience tend to understand the benefit of compartmentalizing the person from the argument (even where the arguments are personal in nature). While there are plenty of awful practitioners in the world, their sins tend not to include the absurd high dudgeon displayed by Professor Franks. It strikes me that Professor Franks sounds like someone who has never had to work to a conclusion within a truly adversarial system–those of us who do tend not to be able to afford the sort of absolutism on display here. Then again, I might be wrong. Unlike Professor Franks, apparently.

    1. SHG Post author

      Franks is not only new to academia, as an associate professor, but also isn’t a lawyer despite her 2007 degree from Harvard Law School, which is reflected in both her metacognitive abilities as well as her rhetorical skills. Even among refined law professors, she stands out.

      1. Don

        Is it common for law schools to have teaching professors who have a JD but have not passed any bar? That seems… bad to this non-lawyer. Not that such people couldn’t teach some subject well, but given the surplus of law school grads over the last decade it seems like it would be a good way of further weeding out candidates for positions.

        I can certainly imagine some reasons for exceptions but they seem like they should be exceptions, not the norm. If for no other reason than that presumably the majority of your students intend to attempt to pass a bar exam so it would be nice to have some understanding of their future challenges.

        1. SHG Post author

          I don’t think it’s “common,” but it’s not unheard of. And it makes no sense to me either.

  2. Turk

    This reminds me a bit of the juror who stakes out a sharp position at the beginning of deliberations, and, because of ego is unable to listen to others and re-consider the arguments.

    Ego has probably exacerbated more fights than any other concept in the history of the world. Including religion. Which says a lot.

    1. SHG Post author

      I think that’s particularly true in this case, where Franks’ pride of authorship in her model law caused her to take outside criticism personally, as well as being unable to consider its merit. It’s another case of telling a new mother her baby is ugly. It’s more than a mother can stand.

      While her law may have passed muster with those who were part of the choir, and thus predisposed to think it swell, it has been viewed less kindly by others. She hasn’t taken it well at all.

  3. Anon Lawprof

    One of the most striking aspects of this blog is your fearless transparency. Regardless of whether I agree with your view or not, I am consistently astounded by how open you are and how you own your views.

    As to @Aelfric, we academics may tend to be a bit insulated from the nastiness of the trenches, but Franks’ refusal to address substance and constant resort to ad hominems isn’t typical of law professors, but of one individual untenured law professor. Franks can call SHG a disgrace all she wants. No one is fooled.

    1. SHG Post author

      Transparency is the price of doing what I do here. If I was to engage in such passive/aggressive attacks as a criminal defense lawyer, my peers would laugh me off the internet.

    2. Turk

      I don’t think there’s much issue here in that trial lawyers have thicker skins than academics. We have to, or we are failures since that ego problem will hinder entering into settlements and pleas when the time comes.

      When someone tells me my baby is ugly I recognize it for what it is: standard argument.

      Does emotion sometimes get the better of folks in the heat of litigation/trial? Yup. But the wise practitioner knows that a course reversal is oft times the best course in the service of the client.

      It ain’t personal. It’s business.

    3. Aelfric

      @Anon LawProf–I honestly didn’t mean to condemn academics in general; I am not a full-time prof, but I have a toe in the academic world, so to speak. I am more just fascinated by the very different worlds occupied by practicing lawyers and the scholarly elite. I also didn’t mean to generalize Professor Franks’ approach or actions to all law profs. I simply found it interesting that it seemed to me that this kind of silly indignation is much more likely to come from a prof than from a practitioner. Practitioners have our own problems–both groups have our sins, I just think they’re different sins. And I find that an interesting dichotomy.

  4. nidefatt

    This looks a lot like every conversation I’ve ever had with a prosecutor about why a particular position they are taking doesn’t make any sense. If you figure out how to get Franks to see things from your point of view, you should write a book.

  5. Wheeze The People™

    Time to update the AWARDS section of your AVVO profile: “The 2014 Petulant Ignorant Pervert Award, bestowed to Scott H. Greenfield, Esq. by the the esteemed Associate Professor of Unconstitutional Law, Dr. Mary Anne Franks, J.D. . . .”

    Frankly, that award would make me want to hire you over say, a less decorated criminal defense attorney . . .

      1. Wheeze The People™

        I take it that you like being decorated, as your high fashion sense never fails to astound me . . . Good work, counselor, you belong on the Runway . . .

  6. Richard G. Kopf

    SHG,

    I have previously certified myself as a “dirty old man.” With that in mind, I must ask: why is revenge porn bad? I AM NOT SERIOUS. However, I am mystified that someone would propose a criminal law for what is at best a tort that, so far as I can tell, causes no physical harm. More specifically, and this is the primary motivation for bothering you with this comment: Does anybody have any good empirical data on the frequency of this invasive behavior? I would like some metric to gauge the size of the alleged problem.

    All the best.

    RGK

    PS I am aware of the guy who is in prison and whose cite was shut down during the 2009 time frame. I am talking about more recent data.

    1. SHG Post author

      I thought of your “dirty old man” post when this started.

      I’ve heard from a professor that he will be an article coming out soon that addresses this question, and he brought me up to date on the current state of the statistics. At the moment, the only data is that collected by the Stop Revenge Porn group from visitors to its website, and another by McAfee. The former, which is used by the group in its claims, suffers from about every empirical flaw conceivable. The latter is slightly better, but hardly scientific. They both suffer from not just self-selection, but a dearth of definition.

      So the answer is that no statistically viable empirical evidence exists at this time. It’s all anecdotal, even when wrapped with an empirical bow.

      1. another prof

        The best stats on this issue are the McAfee Study in 2013 (SHG, pardon the link, but perhaps you’ll allow it in this case): http://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx

        These aren’t the best stats one could hope for, but they are a start that any honest social scientist would respect. They are from a randomized, national stratified sample (which means they follow the kind of groups of people that the census identifies, not simply who wants to take that survey, all victims, just one race or gender, etc.). The Cyber Civil Rights people (CCRI) seem happy with their own survey of the people who willingly visit their website and willingly volunteer to take their survey in 20112/13 (btw, that’s not the best design for top-level social science for easily agreed-upon reasons of sampling bias, etc.); they then selectively use parts of the McAfee study in their own infographic, although curiously not the parts that dispute their “90% of all victims are female” stat from their own survey. But these stats as presented/filtered by CCRI (the amalgam from CCRI’s survey and the McAfee stats CCRI selectively uses next to their own) are the ones you will see all the lawmakers cite. This should worry those with social scientific intuitions; are we making laws with an honest grasp on the strength _and_ weaknesses of our data? More research is needed for some of these empirical claims, but no one seems to have the patience for real science on this matter.

        Don’t get me wrong, there are many cases where the consequences of revenge porn (and, in many but not all cases, the accompanying stalking and cyber/real life harassment) are awful and life-affecting in a very negative way. But what else is swept into the realm of “criminal activity” with these laws? How prevalent is the problem compared to what it might cost us through eroding free activities online with criminal laws? Will these laws target those who we want them to target (vs. overly broad laws that criminalize people sharing pics–without overt harm or intent to harm–they found somewhere online and getting caught up in “not having overt, written consent for such sharing”)? Lots of complexity here that simple narratives gloss over.

  7. Anne-Marie Krone

    I am at a loss to figure out what your supposed perversion is. The appellation pervert has always implied to me some degree of abnormality, but in forty-years-plus (how much plus is a carefully guarded secret) experience with my fellow human beings, speculation about the sex lives of others appears entirely normal.

    1. SHG Post author

      Since no normal person could think the offending twit was anything more than a quip, it never occurred to me or anyone else to ask this question before. Apparently, if it was serious, and someone speculated at Franks’ sex life, that would be abnormal in her mind. Unfortunately, I can’t explain her reasoning, if there is any. My thought is that the twit was just an excuse to call me the name and nothing more.

  8. bill

    I worked with several victims to help minimize their exposure through technological means. Today, one of them wrote me asking “What happened with Mark & Scott? I thought they were on our side, why did they flip?” – It was heartbreaking to read and in the discussion, she said two of the other victims she stayed in contact with pointed her to Frank’s blog. They had fallen for the hype and completely lost track of the fact that in each case, it was Mark that pretty much fixed their problem. I pointed out that even if the law was good, even if it wouldn’t end up catching a lot of innocent people in the mix, the law is reactive – the damage will be done. And RP is such a slimy thing that even with all this exposure, we’ve only had a handful of people willing to sink to those depths. The sickest part of this whole thing is that if you are against a bad law, you’re somehow for the behavior it was supposed to curtail. The more I read Franks, the more I think she’s seriously nuts, not jokingly so.

    1. SHG Post author

      This gets to a very serious issue: Franks’ conduct isn’t about RP, but about defending Franks’ ego. While she will no doubt deny it with the same vehemence as she attacks, she will sacrifice the very victims she claims to fight for to save her pet law. For the rest of us, this is about the issues. For Franks, this is about Franks.

      In a very real sense, it’s not a fair fight. Marc and I are constrained by reality and integrity. Franks has no similar constraints. This is why so many law professors have shied away from calling her out publicly, despite their private views that she’s intellectually deficient, dishonest and a disgrace to the academy, as they know she will attack them this way.

      When I first broached the subject, I heard from a renown male lawprof who told me to anticipate that she will call me a misogynist or a racist, and that if I didn’t want to be the target of Franks’ mudslinging, I should walk away. I stayed and fought, and this is what came of it.

  9. bill

    Please forgive the OT comment and delete away if you deem it off base, but I have a question and I can’t find an answer no matter how hard I looked. She’s a professor at a well known law school (I know Miami isn’t a top tier school, but it’s certainly not a no name diploma mill). In my field, computer science, it’s unimaginable that you could have a professor (let alone a high profile one) that neither worked as a developer, worked on a major product or that couldn’t write code.

    I can’t speak for every other field but from what I know, it’s the case for any other one I could think of – you don’t necessarily need to have worked in the ‘real world’ but you absolutely have to be competent to do so. The school isn’t shying away from her, they’re seemingly proud of her. How does that work in law?

    1. SHG Post author

      Maybe this explains why law schools are such a disaster in turning out students competent to practice law.

    2. Don

      Maybe it’s different now then when I studied CS in the early 90s but this wasn’t true then; there were plenty of professors who probably could not have hacked it in the code mills, or at least not in the typical ones. But they were unquestionably (in my experience, at another Miami school, Florida International University) competent in areas of theory. I might not hire them to work on a new database tool but I would without hesitation consult them on more fine-grained matters like an optimal search or storage methodology, and would assume they could find and produce research building on the masters of the field.

      Which is my long-winded way of saying that Franks doesn’t make sense here to me either. If she’s really a professional at the level of working in a law school and producing sample legislation then it should be moderately to highly competent and reflective of understanding the underpinnings. I realize constitutional law is just one of many classes towards a JD but being able to cope with it and debate the merits seems like it should be a very basic bar of entry if we compare to other fields.

  10. Andrew S

    I can’t help but wonder whether the others involved in Franks revenge porn initiative realize that she has thrown the cause under the bus in the name of her childish ego? You are right, she has made this all about her with her vitriol.

    It seems like she’s stuck, on her pet law as well as her attacking others. She really is a child, but a dangerous one.

  11. Another Prof

    This may have escaped your notice, but there is no group, except perhaps police, more inclined to circle the wagons about one fo their own than academics. It is notable that there is essentially no academic support for Franks’ model law.

    But more to the point, there has been absolutely no support for Franks’ histrionics. The only sound heard is her screaming accusations. Other than that, the silence has been deafening. To me, this speaks far louder than anything else.

    1. SHG Post author

      In the “early” days of her promoting her law, Franks invoked Eugene Volokh as supporting the proposition that her law suffered from no 1st A infirmities based on a post of Eugene’s that pre-dated her law and suggested that he thought a law could be drafted. But Franks has since dropped this claim in light of the deafening silence from Eugene.

      I hear the silence. You hear the silence. Perhaps someone else hears the silence as well, and is trying to fill it with her own noise in the hope that no one else notices.

  12. Scott Jacobs

    Shorter Franks: “If you disagree with me, you prove that I am right.”

    Lolwhut?

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