Revenge Porn: The Funny and The True

At Reason,* Elizabeth Nolan Brown tries to out-funny John Oliver, whose tune has changed from ridiculing those who are too fragile to withstand the “hurtful” comments on twitter to championing the end of revenge porn.

Dear Good People of the U.S. who want to stop The Bad Things from Happening: Great! I, too, want to stop The Bad Things from happening. Most people do. But we have got to talk about this impulse to accomplish good things by simply making all the bad things into federal crimes. It’s an easy-to-stumble-upon—aka lazy—solution that ultimately fails us all, even when the actions in question are undoubtedly unsavory.

Brown raises a good point on the issue of overcriminalization, our impulse to use the bludgeon of criminal law to eliminate Bad Things from happening, and she borrows John Oliver’s funny opening line to make her point. Good stuff. But not adequate, and that’s a problem.

One of the issues that lawyers, Mark Bennett in particular, have tried hard to convey is that the constitutional rights involved, the unintended consequences, the chilling effects, go far beyond what can be easily seen on the surface. It can be hard to appreciate problems that aren’t obvious to the shallow observer, but laws aren’t parsed for their obvious purpose, but the unintended harm they will cause down the road.

While advocates harp on the worst harms, bringing tears to the eyes of many at the horrors of revenge porn, the laws being promoted by a small coterie of lawprofs, Mary Anne Franks and Danielle Citron at their lead, encompass far more than their teary-eyed appeals to emotion, to a broad swathe of conduct that harms no one, is perfectly normal and is, in fact, constitutionally protected.

They never mention this stuff.  Brown, apparently, has accepted that their laws are directed toward the extreme, the horrible behaviors, and doesn’t appreciate that the law would also criminalize lawful conduct, so she makes no mention of it.

Last Week Tonight host John Oliver is the latest to succumb to this regulatory red herring. In a lengthy segment yesterday, Oliver endorsed a new federal bill that aims to combat “revenge porn,” the term du jour for any posting or sharing of sexually explicit images without the depicted’s consent. 

Yet states can and have been introducing their own laws criminalizing “revenge porn,” some of which even strike the right balance between protecting privacy and civil liberties. And private platforms, such as Twitter and Reddit, have also been taking steps to stem the flow non-consensual porn, with Google announcing last week that it would allow people to petition for such images’ removal from search results. What is gained by bringing the heavy hand of federal prosecutors into this?

Brown isn’t a lawyer, so it might be unfair to expect her to realize how monumentally wrong she is when she writes, “some of which even strike the right balance between protecting privacy and civil liberties.”  It is likely that her perception is based upon the ACLU’s view, that as long as the anti-revenge porn laws include a mens rea requirement of intent to harm, plus an exception for newsworthiness, it’s close enough.

The primary spokesperson for the ACLU, Lee Rowland, has taken to being the “loyal opposition” on this issue because of her bona fides as a feminist.  When a male, say me for example, argues against these laws, Franks immediately starts shrieking “misogynist,” because it’s effective to attack males as misogynists these days. They can’t do so with Lee.

But Lee has taken a middle ground on the issue, attempting to keep dialogue open and, perhaps, with a bit more empathy than a principled position would allow.  As Bennett explained, her defense of the First Amendment against Franks’ and Citron’s attacks has fallen substantially short, and left much off the table. If Lee is speaking for us, she’s not doing a very good job of it. These are our constitutional rights she’s giving away.

These are our innocent children who will be swept up in these laws, designed to make sure that no culprit in Franks’ and Citron’s eyes gets away, and they are perfectly happy to let innocents be convicted, undermine free speech, to make sure that no bad male ever gets away.

Both Franks and Citron have been shockingly deceitful in their self-described scholarly explanations of why the First Amendment doesn’t prohibit laws criminalizing free expression. Reactions have been based entirely on feelz, with support from those in the academy for whom the end justifies the means, provided they adore the end result, and disgust by those who either understand the First Amendment or take a principled approach.

But they have been remarkably successful by selling their intellectual honesty for legislative interest.  It’s completely understandable that lawmakers see an opportunity to pander to voters, when some lawprofs say it’s not unconstitutional.  It gives them cover. There are sad stories. So what if nobody knows about all the collateral damage it can do? So what if it’s flagrantly unconstitutional? Lawprofs say otherwise, and that’s good enough. So what if the lawprofs have sold all integrity and credibility for a chance to get their stuff on John Oliver’s show?

And so we come to the John Oliver segment on revenge porn, where his views were framed by the pro forces of Franks and Citron, and the tepid and less than adequate anti force of Rowland.  Yet, in there is a huge message that may not sink in without it being pointed out (at 12:01):

Not only is that hysterically funny (who doesn’t love to be rick-rolled?), but it reflects the fact that there is no credible argument that these efforts at criminalizing free expression are constitutional.  See what he did there?

Epilogue: As an added bonus, note that John Oliver, at 12:47, brings up the Anthony Weiner problem.  That was me, though you wouldn’t know it today. When I raised this as the first, and most obvious, flaw of Franks’ quest, to which Franks responded:

But thank you for making it abundantly clear that you (and your adoring fanboys) not only don’t understand much about the First Amendment, you don’t care much about it either. You are really just invested in making the world safe for misogyny is all of its forms. 

Franks then, quietly and of course without credit, changed her “model law” to incorporate a newsworthiness exception, pretending it was there all the time. It was still woefully inadequate, but the point is that after screaming that anyone who didn’t agree with her was a misogynistic moron, she tried to sneak in a change to make it seem as if she knew this all along.  Honesty and integrity are not Franks’ strong suit, but then, since she’s not a lawyer either, it’s understandable that she feels no reason to avoid deceit.

* Ironically, I stumbled upon Brown’s post via a twit by Mary Anne Franks that was sent to me because of its false characterization of Brown’s words. Shameless deception is one of Franks’ few strengths. But notably, it was via a “do not link” hyperlink, which allows one to link to a post without giving it the benefit of “hits” or letting the site know where the link came from.

For context, Brown’s Reason post will get, say, 10,000 hits directly. Franks’ twit will give it, say, ten hits. But because Brown and Reason are the enemy, Franks must go out of her way to create a “do not link” link to deny her enemy those ten hits and conceal from Reason that she lied about what was said.

10 thoughts on “Revenge Porn: The Funny and The True

  1. Jerryskids

    Any time I see somebody talking about “balancing” rights, I just mentally replace it with “balancing my desire to smack you in the face with a baseball bat with your desire not to be smacked in the face with a baseball bat”. What sort of “balancing” is there to discuss? No matter how strictly-worded, any opening for an exception is going to get chiseled away at – if we allow this, then why not that? And if we allow that, then why not this other thing? And if we allow this other thing then why not……ad infinitum – until you’ve got an opening big enough to fit anything you want through. And then somebody’s getting smacked in the face with a baseball bat. “Congress shall make no law…” is about as clearly unbalanced as you can get, but Congress does in fact make laws all the time on these matters simply because the Supremes put on their magical invisible-ink-revealing glasses and saw the “…unless they have a compelling interest in doing so and then, boy howdy you betcha, we’re going to strictly scrutinize that sucker. In some cases.”.

    1. SHG Post author

      Balancing (like “reasonableness”) is an effective gimmick as it smacks of fairness, and who doesn’t like to be fair? But it’s a gimmick because it’s normative, it’s whatever someone feels (note the word “feels”) is fair, which may well not be the same as what others feel is fair.

      On the bright side, there is no First Amendment exception for “privacy” or hurt feelings, and based upon recent precedent, the Supremes are not inclined to start carving out new categorical exceptions. These laws are blatantly unconstitutional.

      1. Jim Tyre

        Scott, I think you’re referring to the old First Amendment, not the new one.

        Congress shall make no law abridging the freedom of sXXXch, or the right of the people peaceably to XXXemble, and to peXXXion the government for a redress of grievances

        h/t Marc Rotenberg

        1. Fubar

          From the prolegomenon to a proposed constitutional amendment by law professors who never practiced law, now nationally known for their mad skilz transforming pigs into birds of paradise by proper lipstick application:

          Our brave new First Amendment reveals
          This great nation’s most lofty ideals.
          The state shall compel:
          If you kiss, you can’t tell.
          Free speech must be all about feelz!

      2. REvers

        Mary Anne should be forced to argue for the prosecution when the first few cases get in front of a judge.

        And it should be televised. That would be some quality entertainment.

          1. alpharia

            We in Australia are getting that now by the media going to “legal studies senior lecturer’s” who have never practiced law in their lives since they don’t even hold a Law Degree (LLB). (It’s amazing when you do a bit of digging with these ‘expert’s” the actual links that show up between Franks et.al and them too.

            This is all due to someone allegedly getting unauthorised access to a whole heap of phones in South Australia and sending the naked pictures found onto sites like EightChan etc *sigh*. Though it has also been acerbated by a whole lot of victim blaming by some media outlets too. Sadly our ‘feels’ cannot be overcome by any Constitutional (Bill of rights) measure so I have a bad feel myself that some ‘new’ laws are going to be enacted to satiate the idjits feelings.

            1. nodandsmile

              Of course. Covering blatantly naked power grabs by criminalising anything else to get the electorate looking a different direction.

              I’m more concerned about the increasing penchant for direct, ministerial decision-making on matters that should require a proper adversarial court case.

              Digressed.

  2. REvers

    I know she’s not a lawyer, but it would be great to watch.

    Maybe she could get admitted pro hac clueless for a case or two. 🙂

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