At the outset, when Mary Anne Franks was first trying to establish revenge porn as a crime and denying to anyone who would listen that it didn’t violate the First Amendment, there was one hurdle even she couldn’t ignore. Mind you, she was too petty a person to admit she was wrong, but she quietly changed course to include a carve out for newsworthiness, as she was told and vehemently denied, from Day 1, was a fundamental flaw with her cries.
First term congresswoman Katie Hill, 32, resigned following the publication of photographs of, among other things, her engaging in a sexual relations with a 24-year-old staffer. What these say about her,and her decision to resign, is for others to worry about. But the cry immediately rose across the internet that Hill was a victim of revenge porn.
From the usual coterie of crazies, Jessica Valenti somehow managed to blame it on Harvey Weinstein.
The truth is that it wasn’t the affair that ended Hill’s time in Congress — it was the explicit photos. More accurately, it was “revenge porn” that killed her career.
It wasn’t her offense that did her in, but the evidence of it?
Revenge porn is a form of domestic and sexual abuse.
Her relationships were, obviously, complicated, but this is the usual word salad that contributes nothing of substance. Yet, never letting substance get in the way of her outrage, Valenti proclaimed:
Make no mistake: Hill was the victim of a crime, but she’s the only person being punished.
Was she the victim of revenge porn? Hill, too, believes herself the victim.
“Having private photos of personal moments weaponized against me has been an appalling invasion of my privacy,” she said Sunday. “It’s also illegal, and we are currently pursuing all of our available legal options.”
The problem with this construction of revenge porn is that it ignores the core components that even its most passionate proponents recognize as the barest minimum to pass constitutional scrutiny. The simplistic description of the nonconsensual publication of naked images may serve the needs of the Hill’s passionate supporters on twitter, but like all overly simplistic explanations, it omits a critical exception.
Putting aside the unconstitutionality of revenge porn laws under any circumstance, as they do not fall into any categorical exception to the First Amendment and are inherently overbroad so as to fail strict scrutiny, these laws cannot under any circumstances prevent the publication of newsworthy images, no matter who took them, what the motivation was to publish or disseminate them or their particular subject matter.
If the content of the images is newsworthy, then the publication of images falls outside the realm of revenge porn. It doesn’t matter if it’s a man or woman, a Democrat or Republican. What mattered in this instance is that Kate Hill was an elected official, a representative in the House, and engaged in an improper sexual relationship with a 24-year-old woman on her staff.
That others engage in improper relationships is irrelevant. The nature of the relationship, that it involved bisexuality, is irrelevant. That her husband revealed these photos because he’s being abusive is irrelevant. The disclosure is not revenge porn because it was newsworthy.
The revenge porn law in California, PC § 647(j)(4), which has yet to be tested for constitutionality. provides:
(4)(A) A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
But it further states, at subdivision (D)(i):
(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:
(i) The distribution is made in the course of reporting an unlawful activity.
As Hill’s sexual engagement with a staffer in her employ violated House ethical rules, there is little question that it was unlawful (which, it should be noted, is constitutionally inadequate in any event). Much as some may argue that Hill’s husband wasn’t doing much “reporting,” but revenging, his motive for disseminating the images is irrelevant. It was unlawful. It was “reported,” regardless of his purpose.
In the scheme of these revenge porn laws, this test of their minimal constitutional efficacy has demonstrated how the exclusion of newsworthy images, which must fall outside the definition of revenge porn as even its most vehement proponents have acknowledged, fail to stem the cries of the media, pundits and the public.
And given her moment in the sun, Franks doesn’t fail to disappoint.
Hill’s efforts to seek recourse in the courts could go several ways. Depending on the circumstances under which the photos were published, their distributors could be criminally charged with harassment, stalking, extortion, or identity theft, according to Mary Anne Franks, a University of Miami School of Law professor and the president of the Cyber Civil Rights Initiative, a nonprofit that assists victims of nonconsensual pornography, commonly known as revenge porn. The dissemination of Hill’s photos also likely fall under laws banning revenge porn, Franks says.
There’s little doubt that Franks knows that’s utter nonsense, which is why she equivocates, just a little, by saying it’s “likely,” leaving herself the tiniest bit of weasel room when she gets called out on her usual dissembling.
“Under California law, the only requirement is that you know or you should have known that it would cause a person intense distress. That shouldn’t be a difficult thing to show, because publishing someone’s incredibly intimate photos is likely to cause distress,” Franks says. “A reasonable person would know that.”
Except that’s not at all accurate, but there was never a chance in hell Franks and the anti-revenge porn (and anti-First Amendment) crowd wouldn’t seize upon this opportunity to feed the frenzy of ignorance and play up Hill’s images in their push for a false and unconstitutional application of the law. If there was any doubt before that the inclusion of a newsworthiness exception couldn’t salvage these laws from unconstitutionality, it is now conclusively gone.
What of the bong photo?
Yeah, really. One should never let bong water get so dirty. Change it often. It’s cheap. No excuse.
I don’t know what was in that bong.
SHG,
In her article, Ms. Valenti writes: “How effective can #MeToo be if a serial rapist can still function in polite society?” This sentence had to do with Mr. Weinstein appearing at a party with people who remained friendly with him. They thought it impolite to disembowel him. That evidently annoyed Ms. Valenti. But I am not interested in Mr. Weinstein, the party or the substance of Valenti’s sentence.
Rather, I am interested in and amused at Ms. Valenti’s use of the words “polite society” in article on revenge born. Valenti was not being sardonic. That’s a shame. It illustrates why we should all miss Tom Wolfe and bonfires.
All the best.
RGK
I look to Valenti for my insights into polite society, since we’re never invited to the same parties.
Don Corleone.
“Revenge is a dish that tastes best when it is cold.”
“ As Hill’s sexual engagement with a staffer in her employ violated House ethical rules, there is little question that it was unlawful …”
When did House Ethics Rules become “laws”. A consensual affair between adults may well violate House ethics rules, but does it violate any federal law? Can she be prosecuted for it? While the House is free to pass any ethical rules they want, the violation of those rules is hardly “unlawful”.
To lawyers, “unlawful” means not authorized by law. “Illegal” means in violation of a criminal law. It’s easier to understand legal writing when you know what the words mean.
We’re not gonna go through this every time some shit-for-brains non-lawyer shows up and spews this idiocy, are we?
Nope. If he wants to argue the point, he can go to reddit.
Interesting distinction. According to Black’s Law Dictionary “unlawful” means “ an act that is contrary to or violates a law that exist”. It refers to “illegal” as a synonym, which is, I submit, how most lawyers, including this one, view the word. A few minutes on Lexis will show that most courts seem to follow Black’s definition rather than yours. And it matters in this case as the Congresswoman may choose to resign rather than fight a House Ethics complaint, but it does NOT mean she has done anything contrary to law. As a lawyer, you know that words matter. You harp on that theme enough.
We’ve been through this before. It’s remarkably uninteresting to go through the same nonsense again because you just discovered it. Argue all you want about it, but do it at reddit.
Your relegation of my question to Reddit is one of the classic fallacies : an argumentum ad hominem, [typically referring to a fallacious argumentative strategy whereby genuine discussion of the topic at hand is avoided by instead attacking the character, motive, or other attribute of the person making the argument, or persons associated with the argument, rather than attacking the substance of the argument itself].You rail against Mary Ann Franks for redefining words to suit her arguments and, thereby, to make people stupider. Then you appear to commit the same offense. You hold yourself out as an attorney which, it seems, gives you the right to pontificate. Well, it’s your blog, so I guess you can be a hypocrite if you want to. But don’t be too surprised if someone calls you on it.
As for relegating my point to Reditt, Your assumption that I’m some stupid hick who doesn’t understand the nuances of criminal law is misplaced. I too am an attorney. I spent over 40 years in the trenches practicing State and Federal criminal law. I have hundreds of published and unpublished appellate opinions to my name. I was Board Certified in Criminal Law for decades. I spent over 25 years teaching State and Federal criminal law at a local law school. To the extent you accept comments, I submit that my background gives me as much right to question your conclusions as ANY OTHER LAWYER, you included. One thing good lawyers learn early is that you shouldn’t insult others just because they question your arguments. You can disagree without being disagreeable. Your approach Is a good way to grow old and lonely.
Always remember the Code of the West: You don’t draw on a stranger. He could be faster than you.
You’re very special and I’m sure everyone here will be sad to live without your exceptional brilliance. Our loss is reddit’s gain. Now you’re done.
Heh. If only I could bet money that it would end with this asshole whining about his hurt feelz, I’d be RICH!!! Asshole gonna asshole.
Putting aside the fact that it’s already been explained to you that we’ve been through this question here (not that you seem to care; is it all about you?), no one said she violated a law, but that her actions were not authorized by law. You can quibble with the language, but you had no point from the outset.
You don’t like the definition? That’s nice. But her sexual engagement with a subordinate is still improper, pics of it are still newsworthy and it’s still not revenge porn. And you’re harping on this crap.
RKW–I’m so glad you wrote. Your comment reminds me of a pet story. It may not be on point, but I love pet stories. Scott doesn’t, but Ima gonna tell it.
I’ve always had dogs. There was a dog when I was born; there’s a dog now. I love dogs because all dogs do is dig you. Know what I mean?
But there was a time when there was no dog. I was sad, but I just couldn’t get another. A friend gave me a parrot. I took it. Parrots talk! I tried to teach that bird all kinds of stuff, but all it would say was, “Skink is a asshole.” Over-and-over, month-after-month, “Skink is a asshole.” I tried everything–treats, pettins’, gold–that bird would only say, “Skink is a asshole.”
Finally I had enough. I put the bird on the front porch. I told it to fend for itself. I felt bad, but it needed to be done. How much was a person to take of the mindless “Skink is a asshole” stuff? So I told the story to my neighbor. He said my pool guy, with whom I had some stuff, always walked into the area of the cement pond by saying, Skink is a asshole.” At least that solved the mystery of the bad grammar. Still, I felt bad.
Imagine my astonishment when the bird returned months later. There it was, standing next to the cement pond, which was covered with screen and locked doors! I slid open one of the glass doors; the dopey bird approached. It was wearing glasses and said, “Mr. Skink, I’m glad to see you doing well. I owe you an apology for my previous behavior. I was wrong for saying, “Skink is a asshole.”
I was stunned. I asked, “when did you learn to talk?”
“It was a matter of fortune,” the bird said. When you put me on the porch, I needed food. I found the theater. You’d be amazed at the food they throw out. In a short time, I began to listen to what was said during the plays. It was something that changed my life.”
“But you speak clearly. You can think.”
“The reason is simple: a short way from the theater is the library.” That explained the glasses. “It has no food, but it has books. I read philosophy, law, logic. I had no idea those things existed. If only I knew before, I would still be living here, with you. I would never have been the parrot mimicking that dumbass pool guy and repeating an idea without any merit.”
“But how did you get here, inside the place with the cement pond and behind the locked doors?”
“As it works-out, between the theater and the library is the jail. The food isn’t very good, but I learned to pick a lock. It seems education is everywhere.”
Like I said, this might have nothing to do with you. But as I write this, the parrot is standing next to the dog, whispering in her ear. The dog is pawing my laptop and wearing glasses.
Who knows, if it works for a parrot and a dog, I guess it might work for you.
Like many others here, I’m an old lawyer too, except I’m also a tenured prawf at a big law school. You started out with an “issue” of little value, petty and pedantic at best, and were told this tangential issue had already been discussed and wasn’t going to be revisited again just because you showed up. Oh, you were so offended.
You could have let it go, smug in the righteousness of your extremely important point, but instead chose to be the narcissist who makes it all about him and his wounded dignity. You’re not the first whiner to have his feelings hurt here.
You were wrong at the start, which is no big deal, but rather than take the cue, you chose to be an dick about it. Scott has friends, which is why we’re all here. You’re shooting blanks, pal. The only wise thing you did was not give your name so thousands of other lawyers aren’t saying to themselves, [RKW] is a monumental asshole.
Are the voters who sent her to DC clamoring for her to go? Moot question it seems, as she has Frankened herself after being Pelosied.
No clue why she chose to resign, but it was her choice. She could have shrugged and said, “so what?”
Better to leave as a martyr than be kicked out on an ethics violation? Now she can play the victim card and use this as a stepping stone to run again later or run for senate, governor, etc….
I doubt she would have been expelled. There are far too many others in congress to start throwing stones like that.
Pelosi’s statement, in particular, makes no sense unless Hill had clued her in a sidebar that the House ethics investigation was going to hit paydirt, so that she needed to resign her way out of that inquiry.
But for the boss-employee dynamic this is all a big yawn and no one’s business but her own. A hint for Hill for next time, don’t fuck where you work.
On a broader note, stop trying to criminalize shit that makes you feel bad, legislatures. Maybe Hill can hire an attorney and get herself some damages if she can make her proofs. Otherwise, leave well enough alone please.
That “power dynamic,” as they call it, is a troubling one. Many a fine marriage has come from such relations. But I’m old, so what do I know?
But for that rude interruption in the third act, the Lincolns had a lovely time at the play.
How did I miss the pics?
And kudos to you for once not mentioning MAF is not a lawyer.
This was confusing as covered in the press. The female staffer was just a campaign staffer, so doing her did not violate House rules. The other affair, which Hill denied, would have violated House rules, because that guy was on her actual Congressional staff. So, no reason for her to resign if she actually wasn’t having sex with him. Hence, whatever the nude pics were, I do not think they were the real reason she resigned.
You inadvertently raise one of the reasons why these laws are inherently unconstitutional. If the difference between a crime and a revelation of official wrongdoing can’t be determined until after an ethics determination, the person publishing is left to choose between possibly committing a crime and possibly revealing official malfeasance. That’s the dreaded chilling effect, such that a reasonably cautious person might decide not to reveal impropriety rather than risk prosecution, since one can’t know with certainty what the pics reveal until after the fact.
I got a good chuckle the other day when one of the more vociferous #MeToo folks in my social media circle complained that we should just let folks be adults in their sexual lives, and this ethics rule against shagging staffers seemed a “bit dated.” Good times.
Weird how people get religion whenever the tables are turned.