Whether Katie Hill should have resigned following disclosure of her throuple with husband and staffer was her choice. That the disclosure of images of her naked images gave a huge boost to the astounding ignorance surrounding the issues with revenge porn criminalization, however, is slightly surprising. After all, there was no question but that it was a matter of legitimate public interest as it involved a member of the House of Representatives.
Public disclosure of newsworthy matters, matters of legitimate public interest, were beyond the reach of the law. You know who said that? Mary Anne Franks and Danielle Citron. Mind you, they only admitted it after someone, who shall not be named, refused to let them lie their way around it, but better late and deceptive than never. And that was in a law review article, where they were slightly constrained to admit that law had some applicability, as opposed to their usual appeal to sad tears. As for us lawyers who challenge their inanity, we’re just assholes.
But that’s all ancient history now, as it’s on the radar and they’re making the most of their fifteen minutes, writing pop articles that miraculously ignore everything they’ve previously conceded about the law in order to assure that every reader is persuaded by their appeals to emotion.
If you wonder why Franks’ new shtick is her attack on slavish adherence to the First Amendment in her “Cult of the Constitution” book, it’s because the First Amendment reduces every argument she makes to a joke. Get rid of those nasty constitutional rights and then there’s nothing stopping her from criminalizing away whatever she finds awful.
The New York Times has a lengthy piece from Amber Heard that suffers none of the constraints of law or the fact that the First Amendment has anything to do with criminalizing speech. In fairness, Heard doesn’t claim to be a legal scholar, so it would be unfair to criticize her for being legally clueless.
Harassment laws punish perpetrators whose explicit motive was to cause harm or distress to victims. But a personal vendetta wasn’t what motivated the people behind the hacking of my photos and those of other female celebrities. It’s not what motivated the Marines who traded naked photos of their female colleagues in their closed Facebook groups, or the California Highway Patrol officers who circulated intimate photos of women they’d arrested as a “game” or the men who operate “revenge porn” sites for profit and notoriety.
She’s right, even though she conflates “motive” with “intent,” but that’s a common mistake. Harassment laws will leave some “perpetrators” unpunished, and that’s not good enough. Blackstone was wrong.
This is precisely why “revenge porn,” the term often used to describe this abuse, is the wrong name: It is focused on intent rather than consent. What matters is not why the perpetrator disclosed the images; it is that the victim did not consent to the disclosure.
That is why laws against nonconsensual pornography should look like laws against other privacy violations, like the laws that prohibit the unauthorized disclosure of a broad range of private information, such as medical records and Social Security numbers.
And this is the thrust of the revenge porn advocates like Franks and Citron. One can’t expect Heard to grasp why her efforts at analogizing revenge porn criminalization with laws that are grounded in business regulation or only limit government disclosure. If I have your medical info or social security number, I can publish them at will without consequences because these laws don’t apply to me. Heard may not realize that, but Franks and Citron do. And they know it’s a lie, but as long as the groundlings reading Heard’s op-ed don’t, they’re more than happy to scam away.
So what’s the point?
Because the patchwork of state laws fails to truly protect intimate privacy, it is vital that Congress pass legislation that does. And that is why in May, I spoke at the news conference for the introduction of the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act, a bipartisan federal bill introduced by Representatives Jackie Speier of California and John Katko of New York.
Speier, who loves to pose for photos with Franks and Citron, has been pushing this law for a while, and it has always died in committee because it’s flagrantly unconstitutional. But at this curious time in society, where both right and left want to undermine the First Amendment, albeit for their own purposes, this push might be taken more seriously than before.
No one has ever questioned the awfulness of revenge porn, as it is commonly understood. Posting naked pictures that humiliate people is a terrible and disgusting thing to do, and there is no question that the harm to the victims is substantial. While advising women not to take nude selfies, allow themselves to be photographed or videoed naked or having sex would be wise, the proponents of criminalization refuse to take that path as it’s victim blaming and impairs the agency of women to do what they please, no matter how foolish. And it wouldn’t eliminate the problem entirely, since people aren’t always aware that it’s happening.
The argument isn’t that revenge porn isn’t bad or that it’s no big deal. It is bad. It is a big deal. The argument is that no one has been able to construct a law prohibiting it that isn’t unconstitutional, that isn’t overbroad and will sweep in entirely lawful conduct along with the conduct they seek to penalize.
I can tell you firsthand that acts of nonconsensual pornography are humiliating, degrading and life-altering. Nonconsensual pornography is one of the worst violations of privacy, and no amount of power or privilege can protect you from it. But those of us with power and privilege do have a particular responsibility to work toward ending it. We can all play a role, by speaking out about our experiences, supporting organizations like the Cyber Civil Rights Initiative and calling lawmakers. Ending the violence of nonconsensual pornography should not be tied to fleeting cycles of outrage or cases involving celebrities, but enshrined in the law to protect the right of intimate privacy for all of us.
All it costs is your constitutional rights and the tacit reality that innocent people will go to jail along with the perps. But no one expects Amber Heard to realize this, even though Katie Hill was no victim even under Speier’s misbegotten law, and Franks and Citron just don’t give a damn, as they’re more than happy to give up free speech and send some innocents to jail if it means no revenge porn guy gets away with it.