The New Model Revenge Porn Law; Better, But… (Update x2)

Lawprof Danielle Citron has come out with a book, Hate Crimes in Cyberspace, which will certainly be widely read by a very narrow audience, excerpted by her at Slate.  The slice addresses her flavor of a model revenge porn law, fascinating in that it reflects a deep schism between Citron and baby lawprof Mary Anne Franks.

It comes as no surprise that Citron, who is usually the grown-up in the Cyber Civil Rights movement, parts ways with Franks.  Their joint law review article, Criminalizing Revenge Porn, revealed a critical schism between the two, where Citron would require “knowing” that the person depicted in an image did not consent to its disclosure, while Franks was satisfied with “knows or should have known,” which would impute knowledge and effectively shift the burden from the accuser to the accused.

And, unsurprisingly, no mention is made of how the newest flavor of the model law corrects some of the deep flaws of earlier models, which were vehemently denied despite their being obvious to anyone who wasn’t blinded by extreme advocacy and pride of authorship.  Remember Franks’ affirmative claim that Eugene Volokh approves of her model law that mysteriously vanished from the narrative because it wasn’t close to accurate? Good times. But if one doesn’t get all hung up on intellectual honesty or acknowledgements, it can be overlooked.  After all, this is about preventing bad law, not the lack of graciousness in academia.

So, Citron offers her latest version:

An actor commits criminal invasion of sexual privacy if the actor intentionally discloses an image of another person whose intimate parts are exposed or who is engaged in a sexual act, knowing that the other person expected the image to be kept private, under circumstances where the other person had a reasonable expectation that the image would be kept private. That the other person has consented to the possession of the image by the actor does not imply consent for the actor to disclose that image more broadly.

Definitions:

(1)       “Disclosure” or “disclosing” means to make available to another person or to the public.

(2)       “Image” includes a photograph, film, videotape, digital reproduction, or other reproduction.

(3)       “Intimate parts” means the naked genitals, pubic area, anus, or female adult nipple of the person.

(4)       “Sexual act” includes contact, whether using a body part or object, with a person’s genitals, anus, or a female adult nipple for the purpose of sexual gratification.

The statute does not apply to the following:

(1)       Lawful and common practices of law enforcement, criminal reporting, legal proceedings; or medical treatment; or

(2)       The reporting of unlawful conduct; or

(3)       Images of voluntary exposure by the individual in public or commercial settings; or

(4)       Disclosures related to the public interest.

While there are some vast improvements in narrowing down elements and definitions, this model law still suffers from numerous technical problems.  It would include paintings and drawings (pass the red crayon, please). It would include an image of a body part even though the person is unidentifiable.  It would include merely showing someone an image without any distribution.

As to the “knowing” element of the offense, Citron offers “knowing that the other person expected the image to be kept private” as the fact to be proved. While it’s obviously far better than Franks’ “or should have known,” the inclusion of the word “expected” is vague and suspect.

Does this require an express statement that the image is “expected” to be kept private? Must it be in advance of the gift, or can the expectation be asserted at any time? Or is it merely to be presumed?  If so, then it’s no different than Franks’ formulation, which places the burden on the defendant to disprove his guilt.

Despite the tweaks to the law in reaction to criticisms here and elsewhere, there remains one overarching problem that Citron continues to ignore: it’s unconstitutional.

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Despite the point that has been raised with sufficient clarity and precision that it’s inconceivable that Citron missed it, she cannot overcome the constitutional infirmities by stamping her feet and insisting that it is constitutional.  Not even if fellow travelers stamp their feet in unison.

Revenge porn neither falls within an existing exception nor is an exception in itself, according to caselaw. This detail isn’t overcome by rhetoric like “[d]isclosures of private communications involving nude images do not enjoy rigorous First Amendment protection.”  Rigorous? Cool word, but as much as courts are just as disgusted by certain types of expression as anyone else, that doesn’t mean they aren’t protected under the First Amendment.

Think crush videos and Westboro Baptist Church. The expression wasn’t protected because anyone thought it worthy, but because speech that doesn’t fall within an exception is fully protected.   At some point, it would behoove academics to stop using empty rhetoric like “rigorous” to make people stupider about what’s protected under the First Amendment.

Is it possible that the Supreme Court will eventually hold that revenge porn constitutes a new exception to the Constitution, or is somehow shoehorned into an existing exception even though no one has been so bold as to propose that it might be?  It’s possible.

But until then, all the tweaking around the edges of model laws, even if they get to the point where the law has been tightened up such that it passes muster for vagueness and overbreadth, even if that means that someone they hate will not be prosecuted so that innocents aren’t subject to prosecution as well, the law will still fail to pass muster under the First Amendment.

What this exercise in extreme advocacy over intellectual honesty shows, however, is how easily the legal academy will give away its integrity when it has an evil it desires to eradicate.  Of course, the irony is that it’s presented as a gender issue, even though the statistics (not the ones they use, but the real ones) suggest that the majority of the victims of revenge porn are male and the perpetrators are female.  Go figure.

Update:  Via the twitters, Danielle Citron has offered her Forbes post, Debunking the First Amendment Myths Surrounding Revenge Porn Laws, to further explain why revenge porn laws don’t violate the First Amendment.

Consider Bartnicki v. Vopper. There, an unidentified person intercepted and recorded a cell phone call between the president of a local teacher’s union and the union’s chief negotiator. During the call, one of the parties talked about “go[ing] to the homes” of school board members to “blow off their front porches.” A radio commentator, who received a copy of the intercepted call in his mailbox, broadcast the tape. The radio personality incurred civil penalties for publishing the cell phone conversation in violation of the Wiretap Act.

The Court characterized the wiretapping penalty as presenting a “conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.”

And so?

The penalties were struck down because the private cell phone conversation about the union negotiations “unquestionably” involved a “matter of public concern.” Because the private call did not involve “trade secrets or domestic gossip or other information of purely private concern,” the privacy concerns vindicated by the Wiretap Act had to “give way” to “the interest in publishing matters of public importance.”

Privacy lost and free speech won, but Citron uses the rationale to show why revenge porn would fall on the other side of the fence.  There is a laundry list of distinctions here, from the content-neutral nature of the Wiretap Act to the breaking into someone else’s cell communications. But most significantly, the use of the rationale for why privacy lost, a shield for free speech, doesn’t give rise to its conclusive availability as a sword to stab the First Amendment in the heart.

The Supreme Court uses a wealth of rhetoric in its rationales that serve to justify its opinions, but never serve to justify the opposite. Or to put it more bluntly, losing in Bartnicki v. Vopper doesn’t prove it’s constitutional (or dispel any myth anywhere), but at best offers some language to argue should the issue go before the Supremes at some point in the future. Until the Supreme Court holds otherwise, claiming it’s constitutional is baseless and just plain wrong.

Update 2:  And Professor Bennett provides the quick and dirty lecture of First Amendment 101.  Notably, no vague and wiggly words, but basic 1st Amendment law with the nuts and bolts.  This is the difference between someone trying to avoid a fatal flaw in their argument by wrapping it in malarkey and someone laying out the law, warts and all.

7 thoughts on “The New Model Revenge Porn Law; Better, But… (Update x2)

  1. John Barleycorn

    Twerking the tweaking and still the nipple is not set free.

    Good measures shall shackle ever squeegee that dares to move stencil across any screen. There shall be no more pumping ink through openings in mesh and jail for every wet substrate the squeegee strokes as well.

  2. Levi

    I find it interesting that she sees the “fence” in the same place for civil wiretapping penalties that were thrown out and proposed criminal penalties.

    1. SHG Post author

      There is a long list of distinctions, but you grab hold of whatever you can when you’re drowning. As to the civil v. criminal distinction, one point that the anti-revenge porn advocates persistently make is that if speech can be regulated, it doesn’t matter if it’s regulated by civil or criminal law. This is somewhat accurate, in that it first must be subject to regulation at all before worrying about how it’s regulated.

      But where the argument goes astray is that even if it is subject to regulation, strict scrutiny requires that it be regulated in the narrowest possible fashion to achieve the legitimate governmental interest. So while we have yet to reach the point where the Supreme Court has approved of regulating revenge porn at all, we don’t reach the issue of how to regulate until after that’s resolved, assuming it goes in their favor.

  3. Rick

    Reading the data you presented to support the claim that more men are victims and more women are perpetrators, I think only the first is actually supported. The second rests on an assumption that the partners who victimize men are female partners. This isn’t absurd to me, but it seems that it’s at least possible that gay men are particularly likely to victimize/be victimized, which would be in keeping with the apparently higher rates of male victimization but not higher rates of female perpetration. It’s possible I missed the data specifically which specifically indicate that women perpetrate more frequently, but I don’t believe there was any.

    1. SHG Post author

      That’s certainly possible, though given the percentage of gays in the population, that would mean they were disproportionately nasty. Regardless, I don’t think Scott Stroud’s stat were meant to prove the point, as much as disprove the claims that revenge porn was a women’s problem.

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