It Takes One To Know One

While no one would accuse me of being delicate in my criticism of the First Amendment implications of Mary Anne Franks’ jihad against revenge porn, at no time did I suggest that it had anything to do with revenge porn itself being acceptable or any affinity toward those who engage in it or run such websites. While gender politics may be at the core of others, my concern is limited to creating new crimes and criminalizing the exercise of First Amendment rights.

Because of this, a comment to a new post by Thomas Jefferson Law School prof Kaimipono Wenger disturbed me:

Kaimipono D. Wenger – October 23, 2013

Admin note: Professor Franks has become a bit of a lightning rod of late for some bizarre, stalker-ish online attacks — sort of the blogosphere equivalent of McInnis’s frustratedly yelling “you’re a fucking idiot.” 

Regardless of anything else, no one should be subject to “bizarre, stalker-ish online attacks.”  I sent Kaimi an email asking if he would provide more information so that I could condemn this conduct.  I received no response.  I did get a comment here from Kaimi complaining that I misstate him, but nothing in response to my email.

In the interim, both Mark Bennett and Ken White responded to a comment left by Franks explaining her version of the First Amendment.  Unfortunately, the program used at Concurring Opinions doesn’t allow links directly to comments, so scroll down and read comments 24 through 28.  Mark wrote about it separately as well.

It all struck me as substantive and, well, quite respectful.  A long-time schism between academics and practitioners is our tendency not to argue with the tone and level of respect they deem necessary.  If we don’t engage in a manner that pleases them, they dismiss us as barbarians.

The point was brought home when Brian Tannebaum left a comment to Kaimi Wenger’s latest salvo on Franks’ behalf, the one that generated Kaimi’s “bizarre, stalker-ish online attacks” comment:

BRIAN TANNEBAUM – October 23, 2013

Mr. Wenger, as a Miami lawyer and blogger very familiar with UM, I find it odd that Professor Franks and others are not receptive to comments from some of the most respected criminal law bloggers in the country that disagree with her position. I hope her students don’t take from this that debate in the law is a bad thing. That would concern me, and I think the administration of UM.

Maybe not in the nuanced language of academics, but hardly vulgar. Yet, Tannebaum’s comment elicited this reply (posted in full so Kaimi won’t complain that I’ve distorted his writing and because it’s worth reading in its entirety):

What a curious comment, Mr. Tannebaum. I can’t speak for Mary Anne, but let’s start with a few off-the-cuff possibilities.

First, you seem to think it is self-evident that Professor Franks should change her views. As support for this, you cite to “some of the most respected criminal law bloggers in the country that disagree with her position.” This might be more convincing if critics were arguing that Professor Franks had gotten her Brady analysis wrong or her Apprendi analysis wrong.

But they aren’t. These fine folks are lecturing her on the First Amendment. And it’s an area where — well, as you yourself describe, her self-appointed interlocutors are crim-law practitioners. They _aren’t_ First Amendment experts; they may not have discussed First Amendment law since they were law students. In contrast, Professor Franks is a published scholar on First Amendment issues and arguably a legal authority on the topic.

I’m happy that your practitioner friends have opinions, but I’m not convinced that a scholar who publishes First-Amendment scholarship ought to bow to the wisdom of crim-law practitioners in an area that is _within her expertise_ and _outside of theirs_, if she reasonably believes that they’re wrong on their First Amendment analysis.

Substantive disagreements happen. This isn’t a bad thing. What you’ve characterized as a negative act of Professor Franks “not [being] receptive to comments” is actually an instance in which she is aware of and has considered these objections, and she does not find them convincing. And why is anybody unreceptive to unconvincing objections? Because they’re unconvincing.

Second, Professor Franks has, in fact, engaged in some extended back-and-forth with a number of interlocutors about revenge porn and other issues. She has used Concurring Opinions and other venues to refine her proposals and discuss concerns. She has been highly receptive to comments that have come from many different directions.

But let’s face it, some of her interlocutors seem to pride themselves in being assholes. They deliberately distort her statements and want to engage only in over-the-top polemics. And while I’m not her, I don’t think it’s any surprise that Professor Franks — like most of the rest of us — has very little interest in conversing with assholes.

It appears that Kaimi has dismissed us as “assholes,” thus saving him and Franks from the effort of addressing Bennett’s legal arguments.  To her credit, Franks responded to Mark Bennett’s and Ken White’s comment challenging her interpretation, where she asserts an appeal to authority:

In other words, there is no battle here between First Amendment advocates and First Amendent [sic] opponents. The majority of First Amendment scholars and experts that have expressed views on the issue do not believe that a narrowly crafted law against non-consensual pornography violates the First Amendment.

The only problem is this isn’t quite true. To the extent she offers substantive rebuttal, it would get at best a “C” on a law school exam. While she asserts her own expertise and says she has one First Amendment prof in her corner, Neil Richards, her reliance on Eugene Volokh for support is somewhat problematic as he has not, at least as yet, endorsed Franks’ or become involved in this dispute.  Even so, this hardly comprises “the majority of First Amendment scholars and experts,” but rather one and maybe a second.

On the one side, the dismissal of practitioners’ problems with the First Amendment implications of Franks’ revenge porn law raises some serious questions of intellectual honesty in the Academy.  If she or Kaimi tried to pull off such arguments before a court, they would neither be impressed nor take kindly to it.

Using the title of law professor to pursue this course, to enjoy the gravitas of scholar to avoid the duty of intellectual honesty, raises some very serious questions for the rest of the Academy.  While they may have a tendency to circle the wagons, most are aware that this subjects prawfs to unpleasant thoughts among practitioners.

At a time when they aren’t held in the highest esteem for other issues surrounding law school, they can’t afford to lose their one defense: intellectual honesty.  The question now will be whether the Academy will circle the wagons to protect one of their own or demonstrate the fortitude of ending the embarrassment brought to their door.

In the meantime, if there is anyone out there engaging in “bizarre, stalker-ish online attacks,” that would be despicable and I condemn them without reservation.  Oh wait, could Kaimi be talking about me?  Are my posts, maybe Bennett’s, maybe Ken White’s comments, the attacks of which he speaks?

Well, it could be.  After all, Kaimi says I’m an asshole.  I trust I didn’t distort your word, Kaimi.  By the way, you should really consider cleaning up your language. There is no need to be so vulgar.



21 thoughts on “It Takes One To Know One

  1. Turk

    And while I’m not her, I don’t think it’s any surprise that Professor Franks — like most of the rest of us — has very little interest in conversing with assholes.

    Gee, I wonder how a judge would respond if I answered an opponent’s substantive argument with an ad hominem attack.

    Eh, what the hell do I know, I’m just a lowly practitioner.

      1. Turk

        We always knew you were special.

        Another odd thing… This weird assumption that practitioners don’t know the law, don’t know how to research the law, and can’t present it to a judge.

        That and the asshole thing.

    1. Mark W. Bennett

      I don’t mind being called an asshole—in my view, that’s just shorthand for “guy who speaks truths knowing that others don’t want to hear them.” Someone who tells lies is a “liar”; it’s only the truth-teller who’s an “asshole.”

  2. REvers

    So, is asshole a step up or a step down from curmudgeon? I ain’t one o’ them there intillekshuls like them law profs is, so I don’t know.

  3. Wheeze The People™

    You should write a book, “Vulgarians at the Gates (of the Faulty Ivory Towers). At least y’all weren’t referred to as modern-day Vandals, Visigoths, or Misogynist Misanthropes . . . Yet!! . . . The way I see it, their rights to polite discourse and gentle social intercouse end where your rights to be vulgar and curmudgeonly begin. ¡Viva the Vulgarian!! ¡Viva the Curmudgeon!!

    Truth be told, every time I see those pictures of Mary Anne Franks in her boxing gloves, all I can think about is how awesome it would be to receive a double synchronous donkey punch from her. Can that be arranged?? ‘Cuz I now have it at the top of my bucket list . . . I don’t want to record the event for use as revenge porn; I just wanna live it . . . I’d be jelly in her fists . . .

  4. Tim Knowles

    It bothers me that Wenger thinks criminal attorneys aren’t in a good position to comment on this issue. There is nobody in a better to position to address the practical impact of criminalizing this conduct. I find it pretty significant that criminal defense attorneys are so strongly against the law.

    While we’re appealing to authority, it’s my understanding that Randazza is against the law (correct me if I’m wrong). He knows something about the first amendment and has worked hard to stop revenge porn. I guess they don’t count him as an expert.

    1. SHG Post author

      Randazza has made his position pretty clear:

      Ms. Franks,

      While you’re sitting on your ass “teaching people how to think like a lawyer,” I’m actually out front on this issue, *litigating* these kinds of cases.

      And you know what?

      I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.

      Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.

      As for why they ignore Marco’s existence, I suspect because he doesn’t speak to them in the dulcet tones they prefer.

  5. Dan

    Eff this tool. And in law, there are generally no certifications or sub-specialties beyond lawyer, and in many jurisdictions its improper to represent yourself as such, so don’t give me no, well, their field is criminal, not First Amendment. My field is whatever I say it is.

  6. Dan

    Why don’t we just ridicule this guy because of the law school he teaches at?

    Query, why is it ok to teach at a total crap school, but not ok to go to one?

    Kind of off topic, delete as desired. Not that I need to tell you.

    1. SHG Post author

      He’s young. He’s foul-mouthed. He has to start somewhere, and apparently has hitched his wagon to this cause on the road to tenure. I’m sure he would rather teach at HYS, but everybody has to start somewhere. Just so you know, I have no clue whether TJLS is a crap school, and even if it is, I wouldn’t ridicule the school because one assistant professor behaves poorly.

      1. Dan

        Well, it is one of those schools that’s been subject to a class action lawsuit over employment stats, it is unranked by U.S. News, and according to the Faculty Lounge Blog, 28.8% of the class of 2012 were employed in full-time positions requiring bar admission, placing it at 192 out of 197 schools and U.S. News listed it as one of ten schools that lead to the most debt. So, like you, I have no personal knowledge as to whether it is a crap school, but it does tell me something about the value that the marketplace assigns to having had the pleasure of learning at the feet of this guy who calls people a-holes.

        1. SHG Post author

          Now you take those numbers as negatives. I take them as evidence that he’s doing a smashing job, perhaps even overreaching give his challenges. I’m a very positive fellow, you know.

  7. Stephan R. Illa

    Yet Another Failed Appeal to Authority: Mr. Wenger tells us that “Professor Franks is a published scholar on First Amendment issues and arguably a legal authority on the topic.” Really? According to her CV [available at the University of Miami’s www site], this scholar’s published work on First Amendment issues consists of one article (“Criminalizing Revenge Porn”) which is said to be forthcoming in a 2014 issue of the Wake Forest Law Review. Strictly speaking, this makes her an almost published scholar on First Amendment issues. Although she has posted entries on the subject of revenge porn on the “Concurring Opinions” www site, none of those has been published in the conventional academic sense of that term. Among the “Other Activities” cited in the CV is her 2013 profile in Ocean Drive magazine. The article contains no scholarly content.

    Mr. Wenger’s assertion that Ms. Franks is “arguably” a legal authority on the topic means nothing. “Arguably” simply means that arguments may be fashioned to support a particular proposition. For example, I am a criminal defense attorney who has acquired expertise on First Amendment issues by studying constitutional law at Yale Law School, by litigating First Amendment challenges as a volunteer attorney for the ACLU, and by challenging statutes that infringe on free speech when representing defendants in criminal cases. Arguably, I speak with some authority when addressing First Amendment issues.

    However, the validity of an argument does not depend on the credentials, experience, or status of the person making it. Ms. Franks’ arguments have been examined critically by a number of lawyers. They say that her analysis of First Amendment precedents is flawed and that revenge porn statutes are unconstitutional. These arguments should be addressed on their merits.

    1. SHG Post author

      Well, if you’re going to start knocking the use of logical fallacies, you’re going to end up being called an asshole too. Then again, as Bennett suggests, that may not be such a bad thing.

  8. Jim Majkowski

    I am reminded of two jokes, of sorts:

    1. The preacher’s sermon’s marginal notes: “argument weak here, yell like hell!”

    2. “Shut up!,” my father explained.

    As for the constitutional issues, stuff most people like doesn’t need Constitutional protection. In an apparently unguarded moment, that First Amendment champion Antonin Scalia told a college audience, ‘(i)t would be not much use to have a First Amendment … if the freedom of speech included only what some future generation wanted it to include,’

  9. Ace

    SHG, I’d suggest that Wenger’s comment is not at all addressed towards you, Mr. Bennett, Mr. White, or all the other folks engaged in respectful legal analysis, or that it even has anything to do with the idea of a revenge-porn-law at all; it stems from Prof. Franks’s recent exchange with VICE Magazine co-founder and raging misogynist jackass Gavin McInnes, which went fairly viral.

    It’s an unfortunate fact of life on the internet that women who take highly publicized feminist stances wind up the target of some seriously reprehensible misogynistic attacks – not reasoned criticism, but expletives and rape threats and stalker-ish behavior.

    1. SHG Post author

      That may be. If so, it’s unfortunate that Kaimi didn’t see fit to tell me. The debate Franks had with McInnes (I could only bear to watch a few minutes of that nutjob) was brutally bad, though I’m unaware of any other contact between the two or attacking comments left for her on Co-Op necessitating Kaimi’s comment.

      I can well understand that Franks is likely a magnet for attacks for her views. As I wrote in the post, if so, this is outrageous and terribly wrong. On the other hand, when Kaimi posts something deliberately inflammatory like this, it undercuts his complaint and suggests he’s inviting attack.

      Whether lawyers who have offered disapproving commentary are viewed as “engaged in respectful legal analysis” is another question. Franks’ responses (see particularly comments 34 and 37) go beyond inappropriate and deem into nutjob territory. This isn’t “respectful legal analysis,” but it reflects more on Mary Anne Franks and Kaimi Wenger than anyone else.

      What remains an open question is why no prawfs have called her out on her shrill, offensive and nonsensical comments. Or is that reserved only for practitioners and outsiders?

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