WaPo Beats The 1st Amendment Strawman To Death

In an editorial, the Washington Post has come out in favor of Rep. Jackie Speier’s federal revenge porn law. Like everyone else, they decry the harm that revenge porn, in its worst sense, can cause:

Too often, people put explicit images of former partners online to hurt and harass them, sometimes along with information that can lead to stalking and threats. Because not every state has a law barring the practice, many perpetrators go unpunished. A bill in the House of Representatives could help deter the behavior.

This isn’t particularly controversial, although its advocates prefer to tar anyone who mentions the fact that these laws not only capture the “perpetrators” they want so badly to get, but many others they don’t. Shh. Don’t mention that part or they will call you revenge porn apologists. That’s what advocates do if you don’t tell them how special they are.

In its effort to address and deflect the myriad criticisms raised by these attempts to create a law that sacrifices innocent people and free speech so that no “perpetrator goes unpunished,” WaPo does the classic strawman shtick.

Speech advocates say the bill is too broad and could sweep pornography that should be permissible into the category of the illegal. They also worry about a chilling effect on those who wish to post or re-post content that is clearly allowed, from snapshots of family and friends on topless beaches to photos in adult magazines. A narrower law cracking down only on originators of offending content and requiring an intent to harm the subject, they say, would be a better solution.

Well, no. Notably, WaPo neither identifies these “speech advocates” nor links to any argument against these laws.  It’s a cool trick to assure that the readers of the editorial have no evidence to show that WaPo is making this stuff up, crafting a strawman that creates the impression that it’s being honest in raising the criticism against its position when it’s not.

Although in fairness to WaPo, if it’s referring to the ACLU’s Lee Rowland’s criticism, it’s not really that far off.  A principled constitutional position would be that revenge porn doesn’t fall within any recognized category of unprotected speech, meaning that it is fully protected under the First Amendment.

The ACLU doesn’t go there. Sure, it says it’s all protective of the Constitution when it asks for donations, but it picks and chooses its battles. When its feelz get in the way of the Constitution, well something has to give. Hint: Your constitutional rights end where the ACLU’s feelings begin.

But bill supporters say the legislation is already narrow enough.

There’s a shock.

Ms. Speier seeks to punish two types of players: those who knowingly post nonconsensual pornographic content and downstream distributors who knowingly solicit or share that content, often to make money. Limiting the scope to initial posters would let distributors act with impunity. Tightening the standard from the bill’s already-stringent “reckless disregard” rule would make it hard for victims to make a case in court.

Putting aside that nobody told the WaPo that victims don’t “make a case in court” when it’s a crime, which is why we spend all that money on the Department of Justice, and putting aside its use of “pornographic content,” which is false on every level, since it need neither meet the test for pornography nor be anything remotely pornographic (any areola will do), the trick to this contention is that “downstream distributors” means those folks for whom the Section 230 Safe Harbor provisions were enacted to protect.

It’s adorable that the Washington Post has just mashed up the entire internet, from Google to SJ, with revenge porn sites like Kevin Bollaert’s UGotPosted. See that, “knowingly solicit or share“?  Trying to fashion a law that would only criminalize people who do criminal things might mean that someone could get away with it! Better to criminalize the entire internet than let any “perpetrator” go unpunished.  And in the minds of the advocates, and obviously the WaPo, it is more important to create a duty on the internet to ascertain that every image posted that reveals some part of a butt appears with express consent than to let any evildoer go free.

Did you retwit that image? Either you must reach the person in the image, ascertain whether they gave their consent, or you just committed a federal offense for your reckless disregard of your duty by retwitting it. Five years, baby. So what if you’re only 12.

As it is, the law takes care to shelter speech and privacy at the same time. It includes an exception for material gathered in a public setting without an expectation of privacy and for material that serves a public interest, which could include artistic, historical or news value.

A more gracious advocate, as opposed to an intellectually dishonest weasel, would name the “public interest” exception after me,

While the Weiner dick pix were used as an example of the ridiculous overbreadth of this law, it was just one example of one small piece of the problem. It wasn’t *the* problem, and even if it was, this isn’t *the* solution. How do you know if an image “served a public interest”?  When the jury returns a verdict of not guilty after your prosecution. Feel that chill wind ablowing?

There’s always a danger of overzealous prosecution, but the law’s practical purpose would not be to block images of bathing babies or breastfeeding mothers: It would be to protect women or men who would otherwise be subject to exploitation and harassment.

Do we take comfort in knowing that there’s “always a danger of overzealous prosecution,” but the law’s “practical purpose” is well intended? How many years in prison are you willing to endure because they mean well?

Any law that restricts free expression deserves scrutiny. As Ms. Speier’s bill moves forward, lawmakers will have the chance to debate whether it strikes the right balance. What is not up for debate, though, is the need for a national rule.

There is no “right balance” when a law criminalizes fully protected speech. That’s why we have that constitutional thingy, which WaPo will remember about when it’s their First Amendment rights on the line. Yours, on the other hand, are up for grabs.

But that last line, that there is a need for a national rule, is the attack on the internet that is made over and over, that bad things happen on the internet and so we must do something.  it’s true, bad things happen on the internet. But no one has as yet figured out a way to stop them that won’t alter the free speech internet in its entirety, and there are plenty of folks, including those at WaPo, who apparently are good with that. Cross the line here and there’s no going back.

14 thoughts on “WaPo Beats The 1st Amendment Strawman To Death

  1. PA

    Great. Congress busy spending time on a bill that may further infringe our rights. Where’s the same feverish work on a federal Anti-SLAPP law?

  2. Jay

    Wonder how Volokh feels right now. Starting to realize you hitched yourself to the wrong train Eugene?

    1. SHG Post author

      I have a great deal of respect for Eugene (even though he doesn’t have Sasha’s sense of humor), but he blew this one. Bad.

  3. Jeff Gamso

    I’m no fan of CJ Roberts, but in U.S. v. Stevens he got this one right.

    “But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly”

    1. SHG Post author

      Ironic how the forces of social justice trust the govt more than CJ Roberts when it comes to free speech.

  4. DaveL

    There’s always a danger of overzealous prosecution, but the law’s practical purpose would not be to block images of bathing babies or breastfeeding mothers

    Let’s try that with a little substitution:

    There’s always a danger of overzealous prosecution, but the law’s practical purpose would not be to block images of bathing babies or breastfeeding mothers arrest young black men in Ferguson for standing on the sidewalk.

    Or maybe

    There’s always a danger of overzealous prosecution, but the law’s practical purpose would not be to block images of bathing babies or breastfeeding mothers justify police officers body-slamming South Carolina school girls

    How does that “practical purpose” sound now?

  5. Erik H.

    Well, words CAN be really dangerous. For example, the words “nobody would ever do that;” “the government would never do that;” and “everyone will agree on what to do.”

  6. Osama bin Pimpin

    Still not getting the revenge porn as an issue thing. Scott: do not send me or anyone else pics of yourself you do not expect to get posted on FB the next day. That’s basic lawyer advice that I actually tell “the children.” BTW, following Charles Glasser on FB he seems to be a fan of passing law that most narrowly meets constitutional muster. WTF?

    1. SHG Post author

      Thank you for sharing your FB friends. Never do it again. And I can say with certainty I will never send you a pic of myself.

    2. PA

      Not surprised that you wouldn’t “get the revenge porn as an issue thing.” Do you always refer to your clients as “the children”? Do you have any idea how arrogant that sounds? You work for them, they pay you to do a job, they keep a roof over your head and you call them “the children”? Perhaps you should re-think your business model…

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