The Argument Unmade In Vermont

Having barely gotten through Eric Goldman’s post about the Vermont Supreme Court’s decision holding the state’s revenge porn statute constitutional, a horrible image popped into my head.

It was Mark Bennett, having put enormous time and effort into thinking about, arguing, fighting revenge porn laws in Texas and Georgia, only to learn that whoever argued the case before the Vermont Supreme Court blew it. Why didn’t they reach out to him, the guy who won Ex parte Jones.

But the lawyer from the state Office of the Defender General decided to go it on her own. And she lost. Now, Bennett is applying for admission to the Curmudgeon’s Club.

Last Friday the Vermont Supreme Court in State v. Vanburen held that state’s revenge-porn statute constitutional. Eric Goldman has a good first analysis of the opinion.

The court found, correctly, “that ‘revenge porn’ does not fall within an established categorical exception to full First Amendment protection,” and declined, correctly, “to predict that the U.S. Supreme Court would recognize a new category.” So the statute is unconstitutional, right?

No: “However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.”

The approach to the challenge in Vermont was directed exclusively to the argument that the statute could not survive strict scrutiny. It’s not so much that this isn’t a fine argument, as it failed to strike at the heart of the problem. There was a Supreme Court decision addressing an entirely unrelated problem that fudged the edges of strict scrutiny, Williams-Yulee v. Florida Bar.

Williams-Yulee is not a modification or rejection of the rule in StevensAlvarez, and Brown. As Justice Scalia wrote in the primary dissent, the Court in Williams-Yulee “purports to reach this destination by applying strict scrutiny, but it would be more accurate to say that it does so by applying the appearance of strict scrutiny.” Williams-Yulee is a special case, a carving-out from the usual protection of the First Amendment of speech that judges view as bringing dishonor on their own kind:

It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture [as in U.S. v. Stevens], protecting the innocence of children [as in Brown v Entm’t Merchants Ass’n], and honoring valiant soldiers [as in U.S. v. Alvarez]. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.

Scalia, J., dissenting in Williams-Yulee.

Unfortunate facts make for squishy law, and the Court chose to blur the edges for the sake of the “Brotherhood of the Robe,” a bit of conflicted sympathy. And when the approach to the issue of constitutionality goes only to strict scrutiny, then Williams-Yulee offers a way around the hard problem. But it shouldn’t.

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad—if it restricts a real and substantial amount of constitutionally protected speech—it is ipso facto not narrowly tailored, and it fails strict scrutiny.

The strict-scrutiny analysis of Williams-Yulee and the overbreadth analysis of Stevens cannot coexist because under Stevens the substantial overbreadth of the statute ends all analysis, and under Williams-Yulee the strict-scrutiny analysis somehow begins there.

One of the Texas Tornado’s problems is that he knows too much, thinks too hard, often harder than the generalist judges on the big benches. While he’s right that the second prong of strict scrutiny, that a law be “narrowly tailored,” by definition means that it is not overbroad, the arguments to demonstrate the constitutional failings come at it from very different directions. He gets it. Judges may not, and the argument that a law is overbroad and therefore unconstitutional is one that needs to be made directly, clearly and strongly supported rather than taken for granted.

The lawyer in the case before the Vermont Supreme Court didn’t argue overbreadth. There was no argument made to show how the law could impair completely protected free speech or how it could chill speech and expression for fear of criminal conviction. It’s true that the narrowly tailored prong implicitly incorporates this consideration, but it doesn’t make the argument, doesn’t clarify for the judges why it isn’t narrowly tailored.

There was never any question that the concerns of revenge porn advocates weren’t real and that the problem at the core of their argument for criminality wasn’t terrible. They pretend otherwise because their best defense is to attack their detractors, but that was never the problem. The problem has always been that the approach to criminalizing their properly-hated offense ran roughshod over a wealth of speech and expression that was fully protected by the First Amendment. They didn’t care how much speech they murdered to get their man. Others did.

So how did the Vermont Supreme Court address the core failing of their revenge porn law?

Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

State v. Vanburen

Advocates, like Mary Anne Franks, will smirk and point to Vanburen, with some cause, as conclusive proof that they were right all along, that their revenge porn crimes don’t violate the First Amendment. They would be right, with the proviso that the lawyers failed to argue the specific reason why it does, and why the court failed to consider its flagrant overbreadth when it concluded that it was narrowly tailored.

Much as Bennett is right that “narrowly tailored” must, of necessity, include overbreadth, it’s still necessary to actually make the argument if you don’t want to lose the appeal.

8 thoughts on “The Argument Unmade In Vermont

  1. Patrick Maupin

    One of the Texas Tornado’s problems is that he knows too much, thinks too hard, often harder than the generalist judges on the big benches.

    That’s only a problem if you assume the judges will think hard enough, or forget to write down what you know, so that you can help to guide their thinking. Competent big-state lawyers like you and Bennett, when playing the long game, know how difficult it is and what it takes to get to the state Supreme Court.

    If it looks too easy, everybody thinks they can do it. Anybody can get an appeal as of right to the Vermont Supreme Court — the state is so small that there are no intermediate appellate courts.

    Fortunately, (as the headnote of the opinion notes), sometimes there is a Mulligan on offer — V.R.A.P 40 allows for a motion for re-argument, so in theory, there might be time (14 day clock started ticking last week) for someone to get it in gear and connect the dots a bit better between overbreadth and narrow tailoring.

    The Office of the State Defender should either get serious on its own, or should reach out to Bennett or some other fanatical free speech lawyer to see if any of this can be salvaged.

    Reply
    1. SHG Post author

      I realize you probably meant to be complimentary, but “fanatical free speech lawyer” not only isn’t a compliment, but isn’t accurate. There’s nothing “fanatical” about being a supporter of constitutional rights or being a competent lawyer. That said, whether they can get re-arg or a cert petition, they need someone like Bennett with the experience and competencies to make the best possible argument.

      Reply
      1. Patrick Maupin

        committed, dedicated -> zealous -> fanatical

        Yes, I should have chosen the adjective more carefully, and yes, it was meant as a compliment, just in case it wasn’t clear from the context.

        Reply

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