Congratulations on kicking the living crap out of Arizona’s anti-revenge porn law. You did a great job getting it tossed. Like a boss, Lee. Well done.
But Arizona’s law criminalizing revenge porn was fairly easy pickins. It was so absurdly over-the-top that there really wasn’t much of a question, except to its advocates for whom no degree of unconstitutionality is enough to make them cringe. It’s hard to see reason through the tears of advocacy, not that they would care anyway.
Yet, the battle isn’t over, and this is where things may get stickier. Whether the ACLU is conflicted on the law, due to a wealth of sympathy for those who suffer from revenge porn and a dearth of empathy for those innocent people who will be swept up as collateral damage, or doesn’t care as much for the First Amendment as it used to, isn’t clear.
To the extent you’ve tried to be civil, almost cooperative with the Grand Inquisitor, your efforts are not appreciated. If anything, Mary Anne Franks has proven her shamelessness to know no bounds, as reflected by her latest attack on you:
Indeed, a very similar attitude is on display in the American Civil Liberties Union’s recent attempts to crush legislation that would criminalize behavior like the KDR Facebook group’s. The ACLU has demanded that any criminal law attempting to regulate what is popularly though misleadingly referred to as “revenge porn” require that the perpetrator must have had an intimate relationship with the victim and must have acted with intent to harass or harm that victim. The ACLU has insisted on this definition not only in the media and in testimony in opposition to legislation protecting sexual privacy, but also in initiating a suit against Arizona’s recently-enacted law addressing non-consensual pornography.
Neat trick how Franks not only tries to tie the ACLU to the Penn State KDR situation, which makes no sense whatsoever, but creates the impression that the ACLU came up with the “misleading” phrase “revenge porn.” You nasty misleaders, you. Except that it was she and her crowd that came up with, and spread, this “misleading” name. No, Mary Anne is too puny to take responsibility for this and her many other grievous errors.
When the issue first began receiving extensive public attention, ACLU representatives went so far as to suggest that no criminal law prohibiting the nonconsensual distribution of sexually explicit images was permissible within the bounds of the First Amendment. The organization soon wisely abandoned this untenable approach, changing tack to insist on an arbitrarily narrow definition of the crime.
See how your efforts to be civil toward Franks have been thrown in your face? Reasonable people can differ. Liars lie.
While I advised Arizona’s drafters that the amendment process provided an opportunity to correct this, I also noted that the intent to harass requirement was gratuitous and unintelligible from both policy and doctrinal perspectives. So much should be obvious from uncontroversial criminal legislation regarding other forms of private information. Both state and federal criminal laws prohibit the unauthorized disclosure of material such as medical records, financial data, and cell phone usage information. None of these statutes requires that perpetrators act with the intent to harass their victims, and certainly none require that the perpetrator and victim be intimate partners. The ACLU has nonetheless stated that it will continue to oppose Arizona’s law unless it includes an “intent to harass” requirement.
Of course she’s pandering to the public, which knows no better, and legislators who would sell their mothers for a vote, while she makes lawyers, judges and legal scholars cringe at her ridiculousness. Even her mentor, Danielle Citron, has tried to explain that, at minimum, a mens rea requirement of intent is necessary (see footnote 45).
Despite her shifting arguments from moment to moment (not that she admits how her previously failed attempts at justifying her misbegotten law are wrong, but just magically “disappearing” them as if she never made the claim), her latest flavor raises idiocy to new levels.
Obviously, lawyers realize that these have nothing to do with her free-floating right to privacy as they deal with personal information that comes into the hands of regulated businesses. Much as every lawyer will realize the absurdity of her argument, not every idiot will, and that’s what she’s counting on.
Then again, since Franks isn’t a lawyer, maybe she is really unaware of the ignorance of this latest try to circumvent the First Amendment. And obviously that relieves her of the ethical prohibition on deceit that would otherwise constrain her. She’s free to lie at will. Apparently, her law school doesn’t mind someone like that teaching criminal law to its students. No doubt they will make brilliant lawyers someday under her brand of pedagogy.
But Lee, she throws it back at you and the ACLU:
For frat brothers who circulated pictures of naked, unconscious women as entertainment, the answer is obvious: they don’t see women as people. What’s the ACLU’s answer?
You have tried to be kind to her, and been smacked by the bludgeon of stupidity in return. You have tried to find some way to compromise so as to help those who do suffer from revenge porn find relief, and have been tarred as animals perpetuating the crime itself.
While the reason I ask is very different than Franks, the question remains:
What’s the ACLU’s answer?
Mary Anne Franks’ reaction has conclusively proven that she is disingenuous and intellectually dishonest at every turn, taking any gesture of good will on your part and using it falsely against you. So will the ACLU continue to give her the courtesy of trying to compromise, only to get smacked again? Or will the ACLU stand up for the First Amendment and put an end to the lies? What’s the answer?