How Long Before the Safe Harbor, Article 230, Falls? (Update)

A maxim that was taught when I went to law school long ago was that the law can’t provide a remedy for every wrong man can conceive.  That was back when we were allowed to say things like “man,” without anyone pretending to choke. Except that one weird kid in the back of the room who seemed to find offense in places no one else did.

The point was that people seemed to always manage to come up with some variation on a theme of harm that nobody anticipated, nobody thought possible, and for which there was no law, whether criminal or civil, that applied.  “Why not?,” budding lawyers demanded of the professor.  “Why shouldn’t the law prohibit this awfulness?”

To make a long explanation short, it’s because the law is an imperfect weapon. It requires a scalpel, but often ends up as a bludgeon. When we begin with a specific evil we seek to eradicate, words are written to smite it. The same words, however, cover conduct never meant to be included.  Examples of this abound recently with children thrown out of schools for biting a Pop-Tart into gun shape, or making a finger-gun. Most agree this is nuts, but they should have seen this coming before crafting the prohibitions that gave rise to the insanity.

Yet, we never seem to learn.  George Santayana’s admonition comes to mind, just as it does every time we ignored it in the past, and no doubt will in the future.

But there is a secondary problem, hidden behind the obvious bludgeon, revealed by this New York Times editorial:

Revenge porn is one of those things that sounds as if it must be illegal but actually isn’t. It’s the term of art for publishing sexual photos of someone without his or her — usually her — permission, often after a breakup.

Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative, who exchanged intimate pictures with a boyfriend while in graduate school. When the relationship ended he started posting them online. She sought help from law enforcement, but the police said she didn’t have a case because she was over 18 when the pictures were taken, and they were her ex-boyfriend’s property.

Having written about this at length already, this comes as nothing new.  There is a law being proposed to criminalize revenge porn.  It’s being called a scalpel, but it’s not, and anyone who says so is a misogynist.   Just like anyone who disapproved of the gun prohibition in schools that compelled the expulsion of a child who made an imaginary finger-gun is a child-hater.

But don’t fall into the other side of the dark hole, blaming Holly Jacobs for being foolish to send out naked seflies. People do stupid things. They do them all the time. It doesn’t make them evil, just stupid.  Just like the angry woman who catches her boyfriend in bed with another and, in a fit of well-deserved pique, posts his intimate picture on the internet to warn other women that he’s a lying, cheating philanderer. Stupid too. But should it be criminal?

That’s one, and only one, of the questions begged by the hyping of law to cure the “plague” of revenge porn, because there is nothing in the law to limit it to revenge porn. That’s just the marketing pitch, tie it to the most disgusting thing available and hope no one sees beyond it. Remember, this is directly tied to Cyber Civil Rights, as Danielle Citron makes proudly clear, and its goal is well established.

The New York Times makes a critical point about the next corner to be turned:

Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)

See what they did there? They’re correct, that the laws being hyped, while rife with the potential for abuse, won’t actually “get” the people they most hate. Revenge porn purveyor Hunter Moore won’t be touched, as he’s protected by the safe harbor provisions of Article 230. So let’s start screwing with Article 230 to get the really bad dudes. Why shield these horrible people?

Because the same law that shields them shields me, and every other blogger, and every website that allows comments, and Reddit, and every other website that allows anyone to post anything on the internet. Without the safe harbor, there will be no free speech on the internet. Here’s reality, I’m not losing my shirt because of your comment. Neither is the New York Times, though its editorial eyes are clouded by the same conflicted desire for a perfect world that lets them see only the low-hanging fruit without grasping that they will kill the tree by plucking it.

The Cyber Civil Rights notion is that women are subject to cruel, hateful verbal attacks on the internet in comments. Citron wants to gut speech:

Prof. Citron begins her remedies discussion with the suggestion that ISPs be stripped of § 230 immunity for postings by others, in the hopes that this will force them to police their customers. She proposes that they be subject to distributor liability – that we move to the takedown regime we have come to know and love under the DMCA.

Why? Because internet speech is “dominated by aggressive bullies, nasty haters and monetizing opportunists,” all of whom chill the speech of women. This “silences” women because they fear posting anything because of the response, calling them mean names, threatening them with harm, posting their pictures online.  The goal is to eliminate speech they deem hurtful to women.

It’s not just about revenge porn. It’s not just about threats of physical violence that manifest in real world conduct, which is already illegal.  It’s about making the internet a safe place for women’s feelings, and making anyone who posts words that violate the sanctity of feelings, and anyone who allows those posts to see daylight, criminals for doing so.

Cut to the quick, the point is to create a categorical exception to the First Amendment to the Constitution prohibiting speech that hurts a woman’s feelings. They will deny it, but that’s the end game.  This is how the slide down the slope is being played, and anyone with even a tiny bit of foresight can see where the battles will be fought until the war is won.  If you’re good with this, then support these initiatives.

If, after realizing where all of this is heading, you aren’t comfortable with the sanitization of the internet so no woman’s feelings are hurt, then stop this before we slide down the slope to silence.  Even if you despise revenge porn, as most rational people do, consider whether you’re good with what this will ultimately do.

The law can’t provide a remedy for every wrong man can conceive.

Defying this maxim has had dire consequences in the past. It will be the same this time. And next time. Now, before the damage is done, is when we need to put a stop to the madness. Not after we come to the realization that this was how internet speech came to die.

Update:  At Concurring Opinions, Danielle Citron has posted a lengthy argument in an effort to address the glaring hole left behind by Mary Anne Franks in her nasty and dishonest attempt to smear her antagonists.  She adds a new wrinkle to the argument, that perhaps the solution to the Anthony Weiner failure of Franks’ model law is to carve out an exception for public figures, which may actually resolve, at least to some extent, that aspect of the problem. Clearly, Citron offers a far more formidable intellectual perspective than her more impetuous colleague.

But it’s not entirely persuasive either. First, there is a reliance on Eugene Volokh’s “I think it’s possible” statement when it comes to drafting a law that’s sufficiently narrow as to only catch the evil-doers without silencing others as well, and the actual creation of such a law. Citron overstates her case when she suggests that Eugene approves of Franks’ model law. He may, but he hasn’t yet as far as I’m aware.

Then again, it’s also fascinating that Citron elevates Eugene to the Supreme Court, as if his one sentence changes the face of the First Amendment. Given Eugene’s libertarian bent, does this mean the she adopts everything Eugene has to say, like his embrace of Citizens United?  I suspect Citron wants to shut her eyes very tight so she can cherry pick.

But then she draws a bizarre analogy between Snyder v. Phelps and revenge porn, leaping over the gap between the two in a single bound.

We can only speculate what the Court actually meant, but the sharp distinction between the church’s protest and the non-consensual posting of sexually explicit images is not. That online users can claim a prurient interest in viewing private sexual activity does not transform a sexually implicit image into a matter of legitimate public concern. Much like the sex videos that the majority referred to in Snyder, a sexually explicit image of a private individual involves expression on purely private matters that should receive less rigorous First Amendment protection.

No, you didn’t miss anything. Logical connections are for the non-believers.

And finally, Citron notes with approval the success of suits for infliction of emotional distress against people who caused harm by posting revenge porn.  There you go! So there is a means by which rights can be vindicated without resort to creating a new crime to criminalize speech. Even Danielle Citron says so.



19 thoughts on “How Long Before the Safe Harbor, Article 230, Falls? (Update)

  1. Bob

    I suspect that the Drafters of the Constitution would have found the publication of naked women’s bodies – with or without their consent – not political speech, even if it can be argued that it’s the so-called “political speech” of the harasser, the stalker, the jerk. So it’s problematic to invoke the First Amendment when legislative bodies are pushed to rein in sociopathic behavior.

    1. SHG Post author

      I suspect the drafters of the Constitution were far tougher, and had a far greater appreciation of free speech, than you suspect. You reveal a bit of a myopic grasp when you characterize the target as “the harasser, the stalker, the jerk.” Should any law prohibiting speech include a provision that says “this law is limited to only those people some guy named Bob on the internet thinks is a harasser, stalker or jerk?” That might work for you, but then, what if you and Danielle, or Mary Anne, or Holly disagree? After all, they might think Bob is a jerk, and then you, Bob, get silenced. Or go to jail.

      As arguments go, inventing normative suspicions, imputing them to the drafters of the Constitution, and then relying on them to conclude it’s problematic and that the only people who would be affected as sociopaths, isn’t particularly sound. In fact, it’s pretty damn poor unless one is so blind and foolish that he can’t see anything beyond self-absorbed emotion. Of course, that’s pretty much the status of the advocates of these laws.

    2. Jim Majkowski

      The late Bob Bork tried, and failed, to come up with “neutral principles” for the 1st Amendment, and further tried to restrict its scope to “political” speech. He only demonstrated why the amendment was and remains a good idea. As for the use of the words “harasser, stalker, jerk, and sociopathic,” those are conclusions, not arguments. Finally, society’s disapproval of “harassers, stalkers, jerks, and sociopaths” is not constrained by the Constitution. Mores can sometimes be better restraints than statutes.

      1. SHG Post author

        Perhaps the saddest part of this issue is not that young people send out nude images of themselves, or that others post them to the internet without thinking about the consequences, but that websites like revenge porn have an audience. If they didn’t, none of this would matter. A “tree falling in the woods when no one is there” sort of thing. That there are people who want to see naked pictures is one thing, but there is no shortage of porn online.

        Much of this reflects societal mores in a way that speaks poorly of people. What the Cyber Civil Rights advocates conveniently ignore is that the first people to stand up against revenge porn, to name and shame, have been the people who are vehemently against their efforts to silence the internet. See Randazza. See Popehat. See Masnick. See Anonymous.

        Yet, these are also free speech advocates, and therefore despised by the Franks and Citrons because they don’t support the Cyber Civil Rights agenda of eliminating all speech that hurts women’s feelings.

    3. Bruce Coulson

      Somehow, I can’t imagine Ben Franklin being shocked, horrified, or wanting to prevent the dissemination of naked female images.

      Although I’m sure that he would have some pithy things to say about men who somehow think ‘revenge porn’ is a proper response to being rejected by a woman. Probably along the lines that after being sprayed by a skunk, wallowing in the corpse does not make you more attractive to others.

  2. David Sugerman

    To a carpenter, every problem is solvable with hammer and nail. No doubt that colors the analysis for all. I have long assumed that the problem of revenge porn could be solved by a properly drawn statute. Obviously a bit naive. Using carpenter logic, I have also long wondered why the victims of revenge porn are not using privacy torts and other common law claims (intentional infliction of emotional distress). If the problem is civil immunity–a favorite of so-called conservatives, the people at Overlawyered, and Koch bros–then part of the answer lies in stripping out immunity. That is a far better approach than criminalizing. The obvious problem with common law remedies (besides immunity) is the inability to reach republication. But if immunity is not a bar, a poster is not relieved of the consequences of misconduct.

    1. SHG Post author

      Many people have a list of horribles they deem so bad, so evil, that it warrants breaching civil immunity. This raises two problems: First, the lists tend to be very different, each having his or her own dragon to slay, and while each of us believes his own list is sound, we don’t tend to think as well of the other guy’s list.

      Second, once civil immunity is breached, it’s thereafter breachable, and then it’s breachable for whatever purpose the group in power decides. When the people in power support your view, then life is good. When it’s the other people, then they’re the destroying civil rights. We can’t have it both ways.

  3. UltravioletAdmin

    Touching 230 immunity is something that fortunately deeper pockets than you or me will defend. Without 230 immunity, Google is doomed, facebook is doomed, craigslist, Amazon, Microsoft, Sony, Apple etc.

    Even posting a review or a blog comment could lead to prosecution under state defamation laws.

    To quote Frank Zappa, they’re suggesting treating dandruff by decapitation.

  4. Jim Tyre

    230 has been under attack from various quarters since some of the earliest cases construing it. But a “solution” for revenge porn is hardly the only current effort to attack it. When enacted, 230 had (and still has) four specific carve outs. One is 230 (e)(1):

    “(1) No effect on criminal law
    Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.”

    This summer, 49 of the 50 State Attorneys General began a campaign to have Congress amend that carve out by adding two words – after “Federal,” add “or State.”

    230 is perhaps the most enlightened Internet-related law Congress has ever passed, and it knew exactly what it was doing when it did so. (I can’t post links, but it’s clear that Congress made a very specific public policy decision to treat Internet speech differently than other speech.) As Scott notes, everybody has their list, but everyone has different lists. If 230 gets amended once, whether for revenge porn or State criminal laws, it becomes so much easier to amend it again, to account for other alleged horribles. There are many good reasons not to touch 230. At least to me, no one has made a good case to amend 230, whether for revenge porn or any other item on some list.

  5. Nigel Declan

    What makes the whole thing that much worse, in my opinion, is that even if the Danielle Cintrons and Mare Anne Franks of this world somehow succeeded in getting what they wanted, that would merely empower them to ask for more. This isn’t about protecting rights; it’s about asserting power. Power over the government, power over the internet, power over people (read: men) who say things that they don’t like and who challenge their world view. They are worse than the metaphorical carpenters who only see problems as nails: they are carpenters who care more about telling the other builders that they (the other builders) are doing their jobs wrong than (the bossy carpenters) actually hammering any nails, because actually doing real labour is beneath them.

    These non-practicing lawprofs and activists see the world before them purely through the lens of their single issue and the world as nothing other than those who worship at their ideological altars or those complicit in the evil of which they seek to rid the world (an image which for some reason reminds me of Ayn Rand, yet I digress). They decry bullying because they are not the ones doing it — if anyone should be shouting down speech on the internet and name-calling, it should be their enlightened selves and their proteges. The only thing remotely “narrowly tailored” about their proposed speech exceptions is the list of who should be allowed to control the valve of internet speech. I guess they figure (with some reason, I concede) that the easiest way for them to try to dominate the internet’s marketplace of ideas “dominated by aggressive bullies, nasty haters and monetizing opportunists,” is for them to try and sucker in the Mother of All Bullies, the Government, to do their fighting for them.

    1. Ultraviolet admin

      While I agree such a policy is over-broad, I feel like attacking feminism (or some strawperson view of feminism or a mens right or etc) is the worst possible tactic as it makes it look like a political fight and feeds into preconceptions people have about the sides.

      Rather the bigger thing is to speak and think about the flaws, like modifying 230 makes the internet libel for 50 different defamation laws. Many, that if they go to appeal, would be found unconstitutional, but require years of appeals. Revenge Porn is unsavory, and perhaps criminal laws are appropriate, but the laws to forbid it need to be extremely carefully crafted, else anyone with a server could be a potential defendant.

      1. SHG Post author

        I tend to agree with you that attacking feminism (or whatever flavor is involved) is a tactical mistake, as it makes some people uncomfortable and allows simplistic people to pigeonhole you regardless of substance. But it presents a problem that was glaringly apparent when Ann Bartow, who was the loudest mouth at Feminist Law Professors, used to toss accusations of sexism at anybody and everybody (including other feminists who didn’t agree with her brand) who questioned her. The prawfs would cower in the corner, while she could do anything she pleased.

        It was then that I decided that letting such insanity thrive was an even greater tactical error, as it let the loudest and most abusive person in the room control discourse. So, let them call me sexist and misogynist. So what? As a tactical matter, they will not dictate the nature of discourse by accusations. Nothing is off the table, and if that puts us at risk of a disadvantage of being called names, maybe that’s the price we have to pay for not letting fear of any epithet shut free speech down.

  6. Joe Pullen

    I hate revenge porn and I hate what it does to it’s victims but it’s not an excuse to pass bad law. Creating the possibility of inflicting collateral damage on the innocent to get the guilty is never the right approach. There are other ways for revenge porn victims to get justice and I don’t believe attempts to alter 230 are the right approach.

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