Unconstitutional, Even If Called “Cyberrape”

Inventing new words to evoke emotional responses from people disinclined toward thought has proven a fairly effective means of manipulating opinion to overcome the hurdles of the law and Constitution. Rebekah Wells gives it a shot, courtesy of the New York Times.

It has been called “revenge porn,” “involuntary pornography” and “nonconsensual pornography.” But using these terms is like calling rape “involuntary sex.” It simply doesn’t reflect the emotional, psychological and physical costs. Revenge porn is cyberrape, and we should call it as such.

Wells comes at the problem with efforts to criminalize revenge porn honestly, having personally suffered enormously from her experience. Indeed, she spends the first 17 paragraphs of her op-ed talking about her case, as if there is any question but that she suffered, her suffering was horrible and the legal system failed to provide her with the relief she sought. Her purpose is to show the harm revenge porn causes, and she does so admirably.

But that’s not the point.

Some people claim that revenge porn is free speech, and should not be criminalized. But this is missing the point. Although men can be victims of revenge porn, we cannot ignore the fact that women make up the large majority of victims. That’s because revenge porn is not just about intimate images. It’s about stripping women of control over their own bodies and forcing them to live as communal property.

This is close, but sufficiently off-kilter as to be not merely inaccurate, but misleading. It’s not that anyone extols the virtues of revenge porn, or at least anyone not crazy or venal. The issue isn’t that revenge porn is free speech, but that it’s impossible to craft a law that criminalizes revenge porn that doesn’t suffer from vagueness and overbreadth, and thus violate the Free Speech Clause of the First Amendment.

Wells doesn’t care, and frankly, why should she? When someone has suffered as she has, the niceties of constitutional law aren’t really your biggest concern. But her story of suffering has led many states to enact laws criminalizing a wide swath of free speech that includes revenge porn within its purview.

New York has just done so, making it an A Misdemeanor and including the mens rea element of “intent to cause harm to the emotional, financial or physical welfare of another person,” in the hope of escaping constitutional infirmities. Activists aren’t pleased, as they see this as an escape hatch for websites posting revenge porn images, but they’ll pretend it’s a win for appearances sake.

Ironically, they were able to get this crime through the New York Senate when it turned Democratic, reflecting the dissonances of being pro-defendant except when it comes to women, whereupon the Dems are every bit as carceral as the tough-on-crime Republicans were. But the activists aren’t done yet.

Representative Jackie Speier recently introduced a federal bill that criminalizes revenge porn. The long odds it faces are a slap in the face of victims who have risked everything in coming forward.

The word “recently” is a bit disingenuous here. Speier has been part of the revenge porn gang for years, and has introduced the same law year after year. It’s never made it out of committee. The suggestion that this is something new, recent, is better than to argue that a bill that has been rejected year after year has emerged yet again. It’s a terrible law and revenge porn activists love her for being their champion.

Perhaps the person most responsible for the failure of revenge porn laws passing constitutional muster is Mary Anne Franks, a non-lawyer law professor at the University of Miami. When she first came up with her legal attack on revenge porn, she was told that it was unconstitutional.

Rather than recognize that her baby was ugly, she did the best she could given the extreme limits of her intellect and integrity, and denied and deflected. Her model law was a mutt, but between her pride of authorship and disingenuous attacks on anyone who challenged her, she was incapable of doing better.

When Wells now writes of her suffering, following on the heels of #MeToo and the mindless emotionalism that finds no wrong in criminalizing any conduct that harms women, that finds Free Speech out of favor with the woke as a constitutional concern, that finds sad stories far more horrifying than the unintended consequences, the innocent men, the speech silenced, who should take one for the team if they cared at all about the suffering of women. The hope is that this is the moment in time when people care so little about the Constitution, and so much about women’s tears, that they are willing to jettison the Constitution for the sake of ending the blight of revenge porn.

As if to punctuate this point, Franks has written a book called “The Cult of the Constitution,” about how evil people have become slaves to constitutional rights instead of turning them squishy whenever rights get in the way of eradicating things Mary Anne hates. If ever there was a woman desperate to be the new Torquemada, it’s Franks.

Of course, had she been stronger, whether in intellect, maturity or honesty, she might have put her effort into coming up with a model law that could pass constitutional muster rather than trying to undo the First Amendment as being too horrifying and exhausting to women. But that wasn’t her way, to think rather than shriek.

Eugene Volokh has suggested that it could be possible to write a revenge porn law that would pass constitutional scrutiny.

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 (likely alongside many consensual depictions of nudity). 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 fact remains that historically such depictions would not have been seen as constitutionally protected.

While this argument is dubious, and Eugene has never gone beyond theorizing to the point of actually drafting a law that might have any hope of being held constitutional, there is a point here that Wells ignores and Franks rejects. The problem has never been that revenge porn isn’t horrible and causes terrible suffering, but that it can’t be criminalized by vague, overbroad unconstitutional laws. Calling it “cyberrape” doesn’t change anything.

19 thoughts on “Unconstitutional, Even If Called “Cyberrape”

  1. KP

    Perhaps women should tackle the problem at its source, the time when the image was taken.. I assume they are quite fine with it then.
    Anyone who has actually read a EULA realises you give all your rights away with that photograph.

    1. SHG Post author

      People should take personal responsibility for such things, but there are many instances where it’s outside their control (stolen images) or they just made a mistake. Remember, it’s not a crime to take a nude pic of oneself or with permission, even if it may be a foolish thing to do. Don’t be so harsh and simplistic as to doom every person who did something foolish to suffer in perpetuity for it.

      1. Howl

        Guitardave, I don’t consider this a competition, but rather, a collaboration. Like musicians working together to create music for their audience, we work with the folks here to create the Simple Justice soundtrack . . . Coming soon, from Independent Records!

        1. Guitardave

          Howl,
          It’s totally tongue in cheek….I’m probably the most non-competitive person i know. From the time i could first play some semi-hot blues leads, the idea of “cutting heads” gave me a big ole’ meh. Too many times I’ve seen guys do that and both were excellent. I used to say, “music is a creative endeavor, if you wanna compete, go chase a ball…”
          I see that comment as the SHG method of saying, excellent selection, without the ‘tummy rub’ implication. But it was a cooler tune, IMO, than my pick.

          1. Howl

            GD, Thanks – good to know we’re on the same page.
            The Slambovian Circus of Dreams is a cool band – lots of well-crafted songs. They’re kinda local, based in Cold Spring, NY, and do a lot of gigs in the Northeast, with an occasional trip to the U.K. Good stuff.

  2. Hunting Guy

    Cyberrape is a great PR ploy. The masses will think it’s a violent sexual assault. The craven politicians will jump on it for votes. And somewhere a poor judge will have to rule on its constitutionality.

    Sounds like victims rights part two.

  3. Jim Tyre

    evil people have become slaves to constitutional rights

    With no small amount of pride, I state to the world (or at least to whomever reads this) that I am evil.

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