Suddenly Unconstitutional

A facial constitutional challenge to a criminal law isn’t easy to win. It’s not meant to be. The notion is that a legislative determination that something should be criminal should be given great deference by a court, which should do its utmost to find a way to square the law with the Constitution. So why are there so many facial constitutional challenges lately? And why are they prevailing?

First, some law.

It is well-settled law that legislative enactments carry a strong presumption of constitutionality (People v Stuart, 100 NY2d 412, 422 [2003); People v Scott, 26 NY2d 286, 291 [1970)) Thus, a party seeking to find a statute unconstitutional bears a heavy burden and “must demonstrate, ‘beyond a reasonable doubt’, that the statute suffers from ‘wholesale constitutional impairment'” (People v Davis, 13 NY3d 17, 23 [2009), quoting Matter of Moran Towing Corp v Urbach, 99 NY2d 443, 448 [2003)). While this burden is high, facial constitutional challenges are permissible “in the presence of a constitutionally protected right” (Dickerson v Napolitano, 604 F3d 732, 744 [2d Cir 2010)[discussing City of Chicago v Morales, 527 US 41 [1999)).

While this comes from a New York decision, the point is fairly universal. If there is any way a court can avoid holding a law unconstitutional, it should do so. The party, invariably the defendant, arguing that a law is facially unconstitutional comes to court and faces a huge mountain to climb. It’s supposed to be that way. Laws don’t get tossed easily.

And yet, Queens County Criminal Court Judge Gia Morris held a piece of Mayor Bill de Blasio’s Vision Zero, the part that criminalized outcome without regard to mens rea, was facially unconstitutional.

Here, the defendant has met his high burden of proof. AC §19-190, Right of Way
law, is unconstitutional on its face since it improperly utilizes a civil tort negligence
standard in a criminal case in lieu of a culpable mens rea, Therefore, it cannot withstand
constitutional scrutiny under both the state and federal constitutions.

Judge Morris referred to the Supreme Court’s opinion in Elonis:

In reversing the conviction, the Supreme Court expressly held:

Elonis’s conviction, however, was premised solely on his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with lithe conventional requirement for criminal conduct – – awareness of some wrongdoing.” Staples, 511 U.S. , at 606-607, 114 S.Ct. 1793, 128 L.Ed 608 (quoting United States v. Dotterweich, 320 U.S. 277, 281 , 64 S.Ct 134, 88 L.Ed. 48 (1943); emphasis added). Having a liability turn on whether a “reasonable person” regards the communication as a threat- regardless of what the defendant thinks-“reduces culpability
on the all-important element of the crime to negligence,” Jeffries, 692 F.3d, at 484 (Sutton, J.,dubitante), and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” Rogers v United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C.Torcia, Wharton’s Criminal Law §27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face “liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind’ ). Under these principles, “what [Elonis) thinks” does matter. APP 286.

Elonis, 575 US _ at _ , 135 S Ct at 2011 (emphasis supplied).

In Vermont, Superior Court Judge David Howard held the state’s revenge porn law unconstitutional. following on the unconstitutionality of Arizona’s law and the governor of Rhode Island’s veto of its law because it was unconstitutional.* Judge Howard engaged in the appropriate analysis of whether the law passed First Amendment scrutiny.

The categories that are found to all into this exception are obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. United State v. Stevens, 559 U.S. 460, 468 (2010). There has not been a ruling that this list is exhaustive, but there is doubt any new category will find approval. See Brown v. Ent’m Merch. Ass’n, 564 U.S. 786, 792 (2011). The Vermont Supreme Court has followed such an approach. State v. Tracy, 2015 VT 111, ~ ~ 15, 17.

If speech or expression falls into one of these categories, a statute criminalizing it is subject only to a rational basis scrutiny. Brown v. Ent’m Merch. Ass’n, 546 U.S. at 793-94. Otherwise, it is subject to strict scrutiny. id. at 799.

Notably, to the extent any contention has been proffered that revenge porn would fit within a categorical exception to the First Amendment, the argument has been that it would be obscenity. Judge Howard disposed of that argument easily.

While there is argument that such revenge pornography should be considered obscene simply because of the intent it is used, there is no present authoritative law that would allow this court to take such a step in enlarging the area of unprotected speech under the First Amendment. See Samantha Scheller, A Picture is Worth a Thousand Words: The Legal Implication of Revenge Porn, 93 N.C.L. Rev. 551, 568-69 (2015), for this argument and its limitations.

In other words, an image that wouldn’t be obscene under one set of circumstances doesn’t become obscene because of malevolent intent.  But, of course, intent is the aspect of these revenge porn laws that its advocates fight most strenuously against, lest anyone not come within their reach.

So what’s the issue? What’s the lesson? Unlike historical crimes, which prohibit conduct in which people engage with a level of culpability that compels societal condemnation and retribution, advocates are pushing to eliminate bad outcomes, as reflected by the heart-rending stories proffered by the advocates of ever-increasing criminalization, without regard to conduct or intent.

In NYC, the mayor wanted to end people being struck by vehicles. Certainly a worthy purpose. But it can’t be accomplished by criminalizing outcome alone, without regard to whether it happened because someone engaged in criminal conduct or just made a mistake.  With revenge porn, as has been discussed here at enormous length, the harm that accrues from images and information on the internet to some is similarly undeniable, but that doesn’t mean the Constitution no longer applies.

The point is that we’ve transitioned to a point where sad stories of harm are no longer considered unfortunate outcomes, but that every sad story demands a crime. No bad outcome is tolerable. Someone must pay. The historical reluctance to find criminal laws facially unconstitutional is coming apart at the seams, not because courts are becoming softer touches but because the laws being enacted no longer reflect the basic requirements of a crime or adherence to constitutional limitations.

Whenever something bad happens, someone cries for a new crime. That’s not the answer. The law cannot provide a solution to every wrong that happens. The law is not capable of solving every bad outcome that happens. Stercus accidit.

*This, of course, hasn’t stopped the revenge porn advocates from arguing to the contrary, and pushing Rep. Jackie Speier to propose a federal law that would subvert the safe harbor of Section 230 of the Communications Decency Act in the process. To date, no court has held a revenge porn law constitutional.

7 thoughts on “Suddenly Unconstitutional

  1. REvers

    Surely you’re not trying to say Mary Anne has been lying to us about the revenge porn laws.

  2. John Barleycorn

    ♡Symbiotic relationships include those associations in which one organism lives on another (ectosymbiosis, such as mistletoe), or where one partner lives inside the other (endosymbiosis, such as lactobacilli and other bacteria in humans or Symbiodinium in corals). Symbiosis is also classified by physical attachment of the organisms; symbiosis in which the organisms have bodily union is called conjunctive symbiosis, and symbiosis in which they are not in union is called disjunctive symbiosis.♧

    This constutional shit is easy once you get past the biology of judges.

  3. Joseph

    I have a couple questions –

    If the government is constitutionally permitted to regulate “patently offensive” pornography under the grounds that it is obscene, what constitutionally bars them from permitting certain kinds of obscene speech while restricting others?

    Second, and orthogonal to the first question, is it obviously impossible to write a revenge porn statute that can survive strict scrutiny review?

    1. SHG Post author

      The test for obscenity:

      There is a three part test for this determination. The court must determine (a) whether the average person,
      applying contemporary community standards, would find that the work, taken as a whole, appeals to
      the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual
      conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole,
      lacks serous literary, artistic, political, or scientific value. Miller v. California, 13 U.S. 15, 24 (1973)

      Don’t ask questions that misstate the test. As for your second question, beats me. So where should I send the bill?

      1. John Barleycorn

        Speaking of obscenity, a request and a little love.

        SJ marches on, FL cuts mustard “everyone” has to eat sooner or later…

        I love what you do and you ain’t so bad at it either.

        Figured you for “slightly” a few years back. But, you will make the crossing. Even if you don’t get there under your own power.

        Lighten up, sooner or later you are gonna be on the bench or have to get serious about this.


        The aw in the law will always be a baby.

        She will never leave you!

        I was never here. You my friend got a hold of something.

        Don’t let go!

        don’t let go…

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