The announcement from Governor Gina Raimondo was, frankly, stunning. The Rhode Island governor did what few politicians are willing to do anymore. She put the Constitution first. Even more shocking, she put the First Amendment to the Constitution first. From the Providence Journal:

In her veto message signed late Monday night, Raimondo said: “The bill is apparently intended to curb the dissemination of private sexual material over the internet, but its sweep is much broader. It could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, H7537 does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.”

“The breadth and lack of clarity may have a chilling effect on free speech,” she wrote. “The right course of action is to follow the example of other states, and craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech.”

This follows the Rhode Island ACLU’s challenge to the law as enacted.

We recognize the legitimate and serious privacy issues that are implicated by “revenge porn.” However, this bill is so breathtakingly broad in its reach that it criminalizes activity that involves neither revenge nor porn. It criminalizes activity that harms no one and is not intended to harm anyone. It turns hundreds, if not thousands, of young people into criminals. And it creates a potentially chilling effect on the exercise of free speech by the media, which face criminal penalties.

There has never been any question that what we think of as revenge porn is outrageous and awful, which is why its advocates bang on the stories of women, even though men are more often its victim but they really don’t care about men. Who would not want to do something about such a horrible thing?

But wanting to do something, and doing something that isn’t unconstitutional, are different things. Much as the main movers against revenge porn have shamelessly “lied and denied” about the constitutionality of criminalizing protected speech, and state legislatures have enacted laws following their model. Thus far, only one has been tested, in Arizona, and it failed miserably.

Governor Raimondo has the honor of the first veto, which is something to be quite proud of. No one gives a prize for respecting the Constitution anymore, particularly in the face of sad tears and stories of woe.  But the ACLU of Rhode Island winning this battle is something of a hollow victory.

Every other state in New England that has enacted this type of legislation has passed much narrower versions to mitigate these constitutional concerns. In fact, the overwhelming majority of states nationwide with such laws have included an “intent” requirement that is conspicuous by its absence in this bill.

“Revenge porn” should be punished, but when a bill like this misappropriates and distorts the term, and puts the media and others at risk of criminal prosecution for engaging in activity that is a far cry from the bill’s purported intent, we firmly believe a veto is in order

There can only be two takeways from the conclusion of the ACLU of Rhode Island’s letter.  First, that they support criminalization of revenge porn. Second, that they believe the laws enacted in other New England states are constitutional.

While the bill enacted in Rhode Island was especially unconstitutional, despite including Mary Anne Franks’ “updated” model law, which arose after criticism here and from Mark Bennett, which she was naturally too puny to concede, it reflected Franks’ desire to make certain none of her enemies could escape her clutches. And in the process, included in her clutches wide swathes of innocents, about whom she cared nothing because that’s how zealots are. The innocents are mere collateral casualties of their war. So what, as long as she gets what she wants?

Yet, there is no “mitigation” of constitutional rights, as the ACLU characterizes it. A law is either constitutional or it’s not. There is no “constitutional-ish” that makes it close enough to be acceptable. As Bennett explained, there is nothing about these laws that would make them constitutional. They are clearly expressive speech, and they do not fall within a category of unprotected speech.

Nor has anyone made an effort to try to create a new, heretofore unrecognized, category of unprotected speech that would capture those who we pretty much agree are awful people without silencing, or chilling, speech that isn’t awful. Of course, what is awful isn’t always so clear, either.  While it would still have to pass constitutional muster, be adopted by the Supreme Court, before it would survive First Amendment scrutiny, no one has tried. The likes of Franks would rather deny her model law is a dog than try to frame a constitutional law.

But what is the ACLU doing, fighting against laws that are flagrantly unconstitutional, while endorsing laws that are still unconstitutional, but not quite as flagrantly?  The organizations that we assume exist to fight against unconstitutional law have become conflicted. It may not be so much that they no longer care about civil rights, but that they can’t seem to get past their feelings of social justice.

The irony is that while these organizations may try to toe some middle ground, where they are willing to stand up against the worst civil rights violations, but not so far as to interfere with their conflicted interests, they get nowhere with the zealots who attack them.  Franks, for whom hypocrite is right up there with shameless liar, hasn’t hesitated to hurl ad hominem attacks at her “enemies,” anyone who stands in her way. This has always been Franks’ modus operandi, and she’s back at it again following this veto.

The line-up on both sides of the issue is pretty clear, despite Franks’ attack against Governor Raimondo as if she was vetoing the law because she’s revenge porn’s best friend. That the ACLU persuaded the governor as to the law’s flagrant unconstitutionality is worthy of appreciation. That the governor vetoed the law reflects a remarkable dedication to the Constitution these days.

That all of this may well ultimately result in passage of another, different revenge porn crime that remains unconstitutional, but is close enough to satisfy the ACLU’s conflicted feelings, to garner its support, is the problem. Half a defense of the Constitution isn’t good enough, even if it satisfies the ACLU.  And should Rhode Island tweak the law a bit, the ACLU will go silent, happy with its success.

H/T Jim Tyre