Drafting a criminal law is hard. Even a crime as uncontroversial as murder presents problems, because people just don’t behave consistently with our expectations. Sure, a straight-forward intentional murder is easy to address, but what about the unduly afraid person who kills because they perceive their life to be threatened, but upon reflection, wasn’t? What about when that person is a police officer?
You may well find these problems easy to answer in a vacuum, but that’s because you have an image in your mind of how the crime happens. If you’re able to imagine infinite permutations of the facts and circumstances, perhaps you can realize why conduct doesn’t always neatly fit within that image.
But then, something else happens, often years later, when words that seemed so clear and obvious are parsed by prosecutors and judges for their meaning, interpreted and reinterpreted, and given perfectly reasonable meanings that were never intended when written. Eugene Volokh raises an example coming out of California.
California Penal Code § 530.5(a) provides that it is a crime to “willfully obtain personal identifying information … of another person” and use it “for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.” “Personal identifying information” means “any name, address, telephone number” or one of many other identifying items (such as Social Security number, bank account number, and the like). And “person” covers not just individuals but also “any other legal entity,” including corporations.
This crime was meant to address the scourge of identity theft. Surely, no one doubts that identity theft is a bad thing, worthy of constituting a crime. Who could question that this was a law that needed passing?
Now you might think that this is a statute aimed at identity theft — i.e., impersonating someone to get credit, goods or services. And the statute is even called the California “identity theft” statute. But it is, oh, so much more! As California courts have read its terms, the statute
- reinvents criminal libel law (California’s criminal libel was repealed in 1986)
- makes it a crime to commit the tort of disclosure of private facts, so long as the disclosure uses a person’s name,
- makes it a crime to commit the tort of interference with contract, so long as the defendant’s actions used a person’s or business’s name,
- makes it a crime to infringe a person’s right of publicity,
- and likely much more.
Pretty surprising — it surprised me. But that’s the logical implementation of how California courts have read the statute.
There are a few phrases in the law that give rise to the problems, though it’s likely that at the time the law was enacted, in 1997, anyone raising problems with the language would have been called crazy, absurd, an identity theft apologist. They would have been attacked as enabling this blight to continue, when clearly this law was needed to end the terrible harm done by identity thieves.
Eugene reaches a conclusion with which few could disagree:
And this also helps show why many commentators — myself included — criticize proposed statutes based on the possible scope of their broad and vague language, rather than just focusing on the particular problem that led to the proposal. Once a statute is enacted, prosecutors will often push them to the limits of the language, especially when the defendants are bad people doing bad things.
Absolutely. But in one of those inexplicable juxtapositions, Eugene distinguishes the bad law of identity theft from, ironically, revenge porn.
Now I have argued that narrowly and clearly written revenge porn bans are constitutional (pp. 1405-06).
Eugene has never endorsed the laws proposed by Mary Anne Franks, despite her claims to the contrary, which magically disappear when she’s pressed to prove it. That said, Eugene has “suggested” that the proposed federal revenge porn crime is, in his words, narrowly drafted. Neither has Eugene offered any language that he proposes would survive constitutional scrutiny, though he states that he believes it can somehow be accomplished.
While Eugene’s opinion, as a First Amendment scholar, carries substantial weight, it falls short of conclusive. Still, it’s certainly worthy of serious consideration. In an article following Mary Anne’s claim that “We worked extensively with constitutional experts on the bill, a dozen of whom have said that this does pass First Amendment scrutiny,”* Eugene was quoted as saying:
Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.”
I asked Eugene about this, and he replied by providing me a copy of his statement to Vocativ, from which his brief quote was extracted. I provide it here in full:
I think that, on balance, this is likely a good proposal. I think that nonconsensual porn of this sort almost always lacks real First Amendment value, and is indeed a serious intrusion on privacy. I’m not a fan of most privacy-based speech restrictions, such as the tort of disclosure of private facts; they tend to be too broad and too vague. But this law seems quite narrow, and pretty clearly defined.
I like, by the way, the fact that this bill isn’t limited to “revenge porn,” in the sense of porn distributed in order to offend or distress the subject. It covers nonconsensual porn more broadly, including when the motive is (for instance) money rather than revenge – if, for instance, someone used to be involved with another person who has since become famous, and has nude pictures from that relationship, distributing such nude pictures of the now-famous person just for the sake of profit would likewise be criminally punishable. Some statutes don’t cover such money-motivated distribution; it’s good that this statute does.
I should note that, in United States v. Stevens (2010), the Supreme Court did hold that First Amendment exceptions should be limited to historically recognized ones, and that the government wasn’t free to just outlaw speech on the theory that the speech fails some cost-benefit balancing test. But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited.
Historically and traditionally, such depictions would likely have been seen as unprotected obscenity. And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the Court has also recognized that speech distributed to children, or to unwilling viewers, can be banned as “obscene” even if the same speech distributed to consenting adults is constitutionally protected. Likewise, I think that sexually explicit material that depicts unwilling people (even ones who were willing to have pictures privately taken, but unwilling to have them distributed) should be seen as constitutionally unprotected, too.
It’s a rather inexplicable view on many levels. Without question, Eugene has good things to say about Rep. Jackie Speier’s proposed law, calling it “quite narrow and pretty clearly defined.” There is no concern expressed about the lack of a mens rea, and, indeed, he seems to support its breadth. While it’s sufficiently equivocal that he doesn’t quite say it passes constitutional muster, or that he, in fact, supports it, he certainly gives no suggestion to the contrary.
How this can be squared with the lesson he teaches about the California identity theft law eludes me. Perhaps it will take the harm to happen before the flaws become apparent. Perhaps Eugene, like Mary Anne, has an image in his head of what needs to be done, and can’t yet see how prosecutors will “push the limits of the language” until it happens. While Mary Anne doesn’t care, and is more than happy to let innocents suffer for her cause, Eugene is unlikely to be so venal.
But should this law be passed, and when it is used to chill speech and prosecute the innocent as it assuredly will, it will be too late. And Eugene’s view, that this could fit within the obscenity category of unprotected speech, is a stretch that he may well come to regret.
*As it turns out, it was only three “experts,” Erwin Chemerinsky, Neil Richards and Eugene. Chemerinsky, whose progressive credentials are beyond dispute, supports the law. Richards said he never saw the law. Pointing out that Mary Anne’s dozen is a lie, however, is a lot like noting today is Friday. The beauty of having no credibility is that getting caught lying is no longer worthy of mention.