Unchosen Guardians Of Our Civil Liberties

It wasn’t that Mike Masnick’s observation at Techdirt was prescient, as much as he followed the dominoes. It was clear that the path on which the sniffling censors traveled led to Section 230 of the Communications Decency Act, as the evils they sought to eradicate crossed state and national lines. Only by going after the core of the internet could they achieve their goal, and Mike saw it coming.

Naturally, the response was to attack Mike. And Mary Anne Franks did what her ilk does, to shriek that Mike was a liar. And when the time came to do exactly as Mike said she would, because it was, of course, absolutely correct, Franks again did what her ilk does. And luckily, there is no shortage of writers willing to repeat and promote the lies in support of the cause.

U.S. Rep. Jackie Speier (D-Calif.) is trying to change that, introducing last summer a bi-partisan bill that aims to cut through the murkiness of nonconsensual pornography legislation in one fell swoop. If passed, the Intimate Privacy Protection Act would criminalize the knowing distribution of sexually explicit images of people without their consent. Perpetrators could face fines and up to five years in prison.

But what of the other side? What about the rights trampled in the process of achieving the censor’s ends? They’ve got that covered too.

But one organization that IPPA supporters thought would be in their corner isn’t.

The American Civil Liberties Union maintains that there should be a clear intent to harm on behalf of the distributor of the images, and an expectation of privacy when it comes to the person whose image is being distributed. While the ACLU hasn’t taken a formal position on the IPPA, the organization expressed concerns that the bill contains neither of those provisions.

Where the bill’s proponents and the ACLU appear to clash is over those instances mentioned earlier regarding entertainment. The IPPA’s focus on harm here over intent bothers the ACLU.

But the ACLU defended the free speech of neo-Nazis in Skokie, right? Well, sure, but that was then. This is now. The ACLU feels the pain of the victims of revenge porn. Who wouldn’t? And so it has come up with an unofficial compromise.

The ACLU’s Macleod-Ball refutes Franks’ assessment. “If you’re going to institute a criminal penalty for certain actions, you ought to make sure that there are legitimate privacy interests that are being violated,” he says by phone. “And having something that addresses the expectation of privacy of the person whose image is being posted is one aspect of looking at that.”

The ACLU stresses the importance of paying close attention to those kinds of details and creating specific, airtight laws.

“Having definitions that are not precise enough simply gives more discretion to those who are exercising the great weight of the state,” Macleod-Ball says. “We don’t want to see those kind of tools for abuse in the hands of people who have that power.”

Notice the phrase, “expectation of privacy” in there? That sounds vaguely familiar, right? It’s taken from Katz v. United States, which bears upon the application of the Fourth Amendment when governmental action impairs an individual’s reasonable expectation of privacy. The prohibition is upon the government, not anyone and everyone. You have no protected right to privacy from others. Maybe the ACLU doesn’t know this. Maybe they know this and don’t care.

No matter. Either way, the “debate” is constrained to a very narrow issue: “intent.” Why? Because the loyal opposition says so. When people write about this, put words on screens for the purpose of informing others, they do so with an appearance of balance by framing the debate. Here, the debate is framed by Franks, whose argument is that the only way to assure that no one escapes her clutches is to lie about the absence of any First Amendment implications.

On the other side is the NGO that everybody accepts as the credible savior of constitutional rights, the ACLU. And the censors couldn’t be happier, as they’ve achieved most of their goals already by constricting the debate to tweaking the details since the ACLU has already given up with the primary contention that there is no privacy exception to the First Amendment. And they much prefer each other’s company to that of others who don’t share their feelings toward things like prohibiting hate speech and special protections for women.

There has been a renewed push of late, reflected in the crafting of a myth about the heroines of the cause. Much as the progressive view is that the apocalypse is upon us, there is concern that the incoming president lacks much of a concern for free speech, combined with a desire to appear tough on crime, plus a facile interest in doing something that might make him look more appealing to women’s causes. This law would do the trick at no cost to anything that matters to him otherwise.

And to add insult to injury, it will come with the ACLU’s blessing, provided it makes an insignificant tweak here and there. After all, if the ACLU says it’s totally constitutionally kosher, who could possibly complain?

On the day after Donald Trump was elected president, the ACLU announced that it had received a record amount of donations. No one voted for the ACLU to decide how much of your constitutional rights to give away in its pursuit of its causes, unless you consider the donations as a proxy of its support, and its ability to speak for Americans’ constitutional rights. They’re going to have the wherewithal to throw one hell of a party when Congress undermines the First Amendment, not to mention the safe harbor of Section 230.

But what sort of jerk would question whether the ACLU has the authority to decide that his constitutional rights are theirs to give away? Maybe you agreed to let the ACLU be the guardians of your civil liberties, but I didn’t.


19 thoughts on “Unchosen Guardians Of Our Civil Liberties

  1. Jim Tyre

    Quoting from the Johanna Mayer article you link to:

    Moreover, revenge porn sites have been able to claim that they are immune to a Federal Communications Commission regulation, Communications Decency Act Section 230

    So what’s the big to-do? Everyone knows that the FCC will undergo a major shakeup in the coming days, just get it to change the regulation.

    Oh. Section 230 isn’t a regulation, it’s a federal statute. Thanks, Ms. Mayer, for trying hard to make us stupider.

    1. SHG Post author

      There were so many fact errors in there that I had to make a choice of whether to dissect it line by line or deal with the big picture. If the reg bothered you, don’t even think about the First Amendment. I wonder which regulatory agency she thinks has jurisdiction over the First.

      1. norahc

        > I wonder which regulatory agency she thinks has jurisdiction over the First.

        I’m betting she wants to create a new one….the Department of Butthurt.

  2. Lucas Beauchamp

    Have social psychologists studying the blogosphere given a name to the informal fallacy of pretending to cite another source when one is actually citing oneself? What about citing another blog for an overgeneralization of one’s own blog?

    To support the argument that the ACLU has gone soft on freedom of speech, SJ cites a Fault Lines post. That post’s authority is … two SJ posts. Those posts, one that the Oklahoma chapter quickly walked back its support of disciplining OU students and the other that the Arizona chapter raised concerns about revenge porn law’s constitutionality that SHG found irrelevant, hardly support the conclusion that the ACLU no longer cares about the first amendment.

    Maybe the ACLU doesn’t care anymore. Where’s the evidence?

    1. SHG Post author

      There were many links in this post, and many source links in those links. The purpose is to avoid the inevitable questions from people who struggle with understanding the significance of information fed to the intellectually shallow by press release and platitude, who don’t realize (as did the writer of the primary source in this post) that they’re being fed bullshit and don’t realize it.

      So, I include a bunch of links. You mention one, which relies on many sources, two of which relate back here. Read all the others. It’s a better use of your time than writing insipid comments.

    2. Patrick Maupin

      To support the argument that the ACLU has gone soft on freedom of speech…

      Maybe the ACLU doesn’t care anymore. Where’s the evidence?

      According to the pacermonitor article, ACLU’s Macleod-Ball said the ACLU ” is open to discussing the language of the bill” and “What we’re trying to do—in not just this legislation, but any legislation that imposes criminal sanctions—is to make sure that the crimes are defined in a sufficiently specific way so that you’re getting at the truly bad actors.”

      IOW, they have either been infected by the SJW meme that says that some speech shouldn’t be protected, or by a fear that they will not have a spot at the bargaining table when the new law is made.

      The ACLU used to defend the worst of the worst. Will they actively defend someone who violates a law they helped to craft? If not, then they’ve gone soft. If so, then (a) why the hell were they busy compromising anyway? and (b) will their amicus brief be thrown back at them along with all the compromising words they said and wrote during the crafting of the law?

      That pacermonitor article stands alone, but given the ACLU’s history, it might be difficult (as you seem to be finding it) to believe that they would be headed down this path. Scott’s other links show this isn’t an isolated, one-off incident, but something that’s been brewing for awhile, the ACLU’s success in Arizona notwithstanding.

  3. Lucas Beauchamp

    I’ve taken your suggestion and read all the posts linked here and in David Meyer Lindenberg’s Fault Lines post. The Fault Lines post has three links to discussions of the ACLU’s softening stand on the first amendment. One, from “the ACLU applauds,” goes to the SJ post, “The Conflicted ACLU,” about its OU about-face. The second, from “it’s down to party,” goes to SJ’s “Beware the Loyal Opposition, ACLU Edition.” The third, from “ranks higher in the victimhood hierarchy,” goes to SJ’s “It’s Not About The Tie: Transgender v. Religious Freedom.”

    Every post supporting Lindenberg’s argument came from SJ. One of those posts, “Beware the Loyal Opposition …,” you linked to twice in this post, once from “feels the pain” and again from “the loyal opposition says so.” So my question remains: is there a name for exaggerating your position’s support by linking to others who just linked back to you? “Lindenberg says so because I said so” isn’t much of an argument.

      1. SHG Post author

        Well, at least you finally got something right. After your done actually doing what you claim to be doing, try reading these too.

        More to the point, when you’re done, let me know and I’ll explain why none of this has anything to do with the point you attempted to make in your first comment.

        1. Lucas Beauchamp

          Focus. The issue in neither earlier comment was the ACLU. The issue was a supporting link to another blog that not only does no more than link back to yours (including to one earlier post that you just linked to twice) but overstates your conclusions.

          1. SHG Post author

            Focus? Thanks for the good advice, but I got it. The post didn’t rely on links to prove the point. Your initial complaint was misguided. Without any links, the point would be the same. Sometimes, links are used for proof but other times (as here) they are used for source, background or related concepts. My inclusion of links to Bennett was to show that, had I wanted external proof, it was available, but that wasn’t the reason for the links in this post.

            But thanks for the reminder to focus. Always a good thing.

          2. David Meyer-Lindenberg

            Usually, there are two reasons to cite someone. Number one is in support of your argument. Number two is to provide additional reading, especially if what you link to expands on something that’s beyond the scope of your own article/paper/whatever.

            SHG didn’t need to cite me as an authority. The idea’s preposterous, he’s written more about the ACLU’s civil liberties perfidy than just about anyone. But because my FL article gave a rundown of the issues involved, linking to it let him talk about what he wanted to talk about while giving you guys access to more information, if you want it.

  4. Syme

    > The American Civil Liberties Union maintains that there should be a clear intent to harm
    > on behalf of the distributor of the images, and an expectation of privacy when it
    > comes to the person whose image is being distributed

    Does the Deputy USM with the Glock have an “expectation of privacy” when clogging it with hair?
    And her associates while engaged in similar activity?

      1. Syme

        The cops in ?Philly? who raided the pot distributor, destroyed all the security cameras and THEN stole goodies from the counter raised that very point; they didn’t know they had missed one other camera….and it wasn’t fair to use that video against them.

        As Dave Barry used to say:
        “I’m not making this up…”

          1. Patrick Maupin

            Awww, I was waiting to see if the Deputy USM clogging her Glock with her associates “while [presumably, the associates were] engaged in similar activity” would constitute a cluster-Glock.

  5. herp derp

    Herp: “You have no protected right to privacy from others. ”

    Derp: ” One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B (recognized in most states); “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Id. § 652D (also recognized in most states).

    1. SHG Post author

      Herp: Crimes predicated on generic claim of nonexistent privacy right involving First Amendment deprivation.
      Derp: Torts recognized in some jurisdictions with varying elements based on conduct.

      If there was a generic right to privacy from other individual, there would be no need for legislature to create statutory torts.

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