A Gift, With No Strings Attached

Since the first of the year, Mark Bennett has performed yeoman’s service to the blawgosphere and the law.  He has given us the gift of a thorough, thoughtful and legally irrefutable explanation of why the anti-revenge porn laws fail to satisfy existing First Amendment law, and why advocates of such laws have deceived and misled in their efforts to convince otherwise.

This is a gift that Mark has given to the rest of us, no strings attached. While the advocates have either posted their positions on big league websites like Forbes or been quoted approvingly by others as an appeal to purported authority, being law professors such that anything they say about the law must be true, by those who support their cause, Mark’s gift is available for any journalist who wishes to accept it.

The gift is out there, free to anyone who wishes to be honest and accurate about the failures of these laws to comport with the First Amendment, the concept for which the people at Charlie Hebdo died.  For a few minutes after that, many people took an interest in free speech, but that quickly changed to free speech provided it was speech they liked and valued.

Since Mark gave us that speech, neither the primary advocates of anti-revenge porn laws, lawprofs Danielle Citron and Mary Anne Franks, nor the second string, Carrie Goldberg, accepted his gift.  Not one of them has uttered a word about it. No concession that Mark is, of course, correct. No disputing his arguments.  It’s as if his gift doesn’t exist, as they can pretend they haven’t seen it because it didn’t appear in major publication, as theirs did.

Franks has been explicit in her dismissiveness of those who prove her a phony, even to the point of explaining to Mark, as if he was a child, that she can’t waste her valuable time addressing lawyers who are her intellectual inferiors.

Mr. Bennett, I am truly sorry that you and I disagree about just how much attention your criticism of my work deserves. I did in fact respond to the points you raised on Concurring Opinions (http://www.concurringopinions…. ), something I had no obligation to do. But as I tried to explain to you there, I don’t have the time or inclination to respond in detail to every blogger who doesn’t like what I do.

I am sorry to learn just how upset it makes you that your demands for more attention from me have largely gone unnoticed, but I am sure that you will find more than enough attention among your own peers and followers to make up for it.

Of course, Franks failed to respond to criticism, but deflected as she does here.  One of the joys of dishonesty is that it costs nothing more to add lie upon lie, since integrity has already been lost.

But what of the rest of the legal Academy?  What of the journalists who write stories for those big league publications?  Surely one of them, in the interest of accuracy, would accept Mark’s gift? The silence of the Academy in their refusal to support Citron and Franks, causing them to quietly jettison their original false claims of scholars backing their position, was deafening. At the same time, they haven’t exactly rushed to embrace Mark’s analysis, to be on the record against them, either.

Thus far, the only taker has been an unhinged philosophy professor who wrote at great length about the title of a post, calling Mark a “sexist tool” for his one lapse into humor, while ironically conceding (despite his lack of qualification to know one way or the other) that Mark’s analysis was sound.

Mark’s gift was an act of graciousness, an offering of thoughtfulness for the rest of us.  And it gave rise to thoughts of gifts in general.  It’s black letter law that a gift, given and accepted without strings attached, becomes the property of its recipient, to do with as the recipient pleases. The recipient doesn’t need permission to keep it or throw it away, to use it or regift it, to put it in a closet or post it on the internet.  To post it on the internet.

Where the gift consists of an intangible, a digital image, yet is given without conditions, the law holds it to be the absolute and irrevocable property of the recipient.  It becomes the recipient’s to do with as he or she pleases; the giver of the gift has no say in what the recipient will do with the gift.

This notion hasn’t been given any real acknowledgement in the discussion thus far. There are aspects of romantic gifts that differ from others that provide for the law to revoke a gift given in the course of a romantic relationship, but none would apply to the situation where a person gifts another person a naked image of themselves.

Is there a reason why the gift of a naked image differs from other gifts, their giving transferring absolute and irrevocable title?  Is there a reason why the recipient of a gift without strings attached isn’t free to do whatever the recipient pleases with the gift, whether to keep it for themselves or show it to the world?  Can Aunt Gertrude have you arrested for giving that ugly painting she gave you to Goodwill because she intended you to put it over the mantle?

The funny thing about gifts is that nobody forces you to give them.  We do so of our own volition, and when we do, we hope that the recipient will use and enjoy the gift in the manner in which it was given.  But we have no control over it, and can only hope for the best once the gift has been given.

Mark Bennett gave us a gift of his hard work and thoughtfulness.  The anti-revenge porn advocates have given us the gift of their silence, their inability to refute Mark’s analysis, their demonstration of the failure of their arguments by their tacit admission that they cannot dispute the law as Mark has explained it.  Like sending a gift of their advocacy showing their naked position, and leaving it to the rest of us to do with what we please. No strings attached.

10 thoughts on “A Gift, With No Strings Attached

  1. morgan sheridan

    I see the point of the fulsome defense of the First Amendment in regard to naked pictures given as a gift and as a layperson, I’d tell my friends, “Don’t do it” or “Think long and hard about the character of the person you’re doing that for” along with a few other things. But also as a layperson, I am far more troubled about how the First Amendment is supported when those pictures are not a gift but the (presumably hard-to-prove) consequence of coersion, emotional manipulation, etc. within abusive relationships.

    1. SHG Post author

      Aside from your comment being about different issues than this post (as in, off-topic, since this isn’t a post about “coersion, emotional manipulation, etc. within abusive relationships”), you seem to have drunk the Kool-Aid. It’s easy to cry about how bad decisions were based upon “emotional manipulation,” and that seems to be the omnipresent excuse for every stupid move after things turn sour. The flip side is people being responsible for their own actions, but that’s hard in a world of whining and facile emotionalism.

      As a layperson, your concerns about emotionalism are the easiest to milk. You are the target audience because you are so easily manipulated.

  2. Mark W. Bennett

    I hadn’t seen that Franks quote before. Deflecting from “you haven’t answered the arguments, and you’ve lied about deflecting the arguments” to the man-thinks-he-is-entitled-to-woman’s-attention narrative helps answer the question, “Is there any depth to which Mary Anne Franks will not sink?” It also helps answer the question, “How did someone of only average intelligence wind up teaching law?”

    The gift metaphor is imperfect: if Brian Tannebaum sends me a digital copy of “The Practice” he’s not giving me license to share it via Bittorrent.

    1. SHG Post author

      Yes, the gift metaphor is imperfect, but then, so is Tannebaum sending a copy of “The Practice” without his due.

  3. Ken Mackenzie

    “black letter law that a gift, given and accepted without strings attached…”

    What, to a black letter common lawyer looks like a gift without strings attached, to an equity lawyer may look like a gift subject to trust, confidence and an implied undertaking not to disclose. If the civil law can proscribe breach of confidence, surely so can the criminal law. I can see how the first amendment could limit the scope of such a criminal law, but not rule it out completely.

      1. Ken Mackenzie

        Granted. The link to Mark Bennett took me to the front page of his blog, and I first read his post on the Illinois statute, but it was only later I found the earlier post of January 2. It taught me a lot more about why Mark doesn’t think he could draft a compliant revenge porn statute if he tried. I’m not quite convinced, but I might take it up with him.

        1. SHG Post author

          The reason the link goes to Mark’s front page is that he’s written numerous posts on the subject (see that “since the first of the year” part? That’s there for a reason).

          As for whether you’re “not quite convinced,” what could possibly make you think that matters to anyone but you? If you have a reason, that might matter. Otherwise, who cares?

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