Revenge Porn: More Made-Up First Amendment Law

Mary Anne Franks is still inventing First Amendment law in the cause of her political crusade to get her proposed statute outlawing revenge porn outlawed:

PrometheeFeu, I do disagree with you, but much more importantly, the Supreme Court disagrees with you. The Court has never held that speech that has zero political, newsworthy, artistic, or scientific value receives First Amendment protection – and certainly not full First Amendment protection. Speech, by the mere virtue of being speech, does not receive First Amendment protection by default. Factor in that the speech in question here is sexually explicit, of purely private interest, and has devastating secondary effects – that’s speech with zero positive value and a great deal of negative value. There’s no Supreme Court precedent for protecting that. To the contrary, the Court has made it clear that such forms of speech “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky v. New Hampshire)

For a case in which the Supreme Court held that speech with zero political, newsworthy, artistic, or scientific value receives First Amendment protection, we need look no further than 2010′s U.S. v. StevensStevens was about depictions of animal cruelty, valueless speech if there is such a thing. In that case the Court rejected, in no uncertain terms, the proposition that there is a balancing test for the criminalization of speech:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).

To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “`of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” R.A.V. (quoting Chaplinsky). In New York v. Ferber we noted that within these categories of unprotected speech, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck,” id. The Government derives its proposed test from these descriptions in our precedents. See Brief for United States 12-13.

But such descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.

So where Franks sees a balancing test in Chaplinsky, today’s Court does not. Contrary to Franks’s foot-stamping assertion, speech is protected by default. Speech is protected unless it is within a category of speech that is historically unprotected. Stevens again:

Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

Franks will not address the categorical approach taken by the modern Supreme Court in Stevens. She will not because revenge porn does not fit into any category of speech that has been described by the Court as historically protected. To admit that would be to admit that she has been wrong all along; that current Supreme Court precedent does not permit what she would have state legislatures to do.

Franks is not acting as a neutral, but as an advocate for a position. Unfortunately, when she presents herself as a “law professor” laypeople assume that she is neutral, that she is knowledgeable about the subject matter, and that she is right. In this instance, none of those assumptions are correct.

It might be that the Supreme Court will someday recognize a category of unprotected speech encompassing revenge porn. But convincing the Supreme Court to recognize a new category of unprotected speech will be a very different—and much more difficult—battle than Franks is selling to state legislatures.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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13 Responses to Revenge Porn: More Made-Up First Amendment Law

  1. Stephan R. Illa says:

    Ms. Franks pretends that the “forms of speech” she identifies are the same categories that the Supreme Court was referring to in Chaplinsky. She implies the Court found that no First Amendment protections applied to speech that was “sexually explicit, of purely private interest, and [that] has devastating secondary effects.” In fact, the dictum that she quotes identified four different categories – obscenity, profanity, libelous statements, and fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

    It is one thing to argue for the extension, modification, or revision of existing law. Good lawyers do it all the time (with some success – notice that “profanity” has acquired First Amendment protection). It is quite another thing to misrepresent existing precedents. Bad lawyers do it all the time (and frequently get caught).

    • Mark Bennett says:

      I doubt that the statute at issue in Chaplinsky, forbidding “any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place,” would pass as-written First Amendment muster post-Cohen v. California.

      • Stephan R. Illa says:

        Agreed. I was amused to read the statements that formed the basis for Chaplinsky’s prosecution. He was accused of calling someone “a God damned racketeer” and “a damned Fascist,” and of denouncing “the whole government of Rochester” as being composed of “Fascists or agents of Fascists.” Pretty tame stuff by contemporary standards.

      • Mark Bennett says:

        The World Wars made for some bad First Amendment law.

    • James Smith says:

      Its seems that the revenge porn attorney trying to sue me, John Morgan, studied at the Mary Anne Franks School of First Amendment Law.

      In his brief to the court of appeals, Morgan states that Section 230 immunity applies “only if the
      content contained on a website is (1) within the scope of the Act and (2) qualifies for protection under the First Amendment of the U.S. Constitution.” Brief at p. 12. His argument contains no citations to any authorities, and I am not aware of any.

      In reading Morgan’s brief, it seemed to me that he was attempting to use this civil lawsuit as a way of enforcing federal criminal law, which is impermissible. The applicability of § 230 to a private civil suit based on alleged criminal acts has long been rejected. Doe v. MySpace Inc., 528 F.3d 413, 419-20 (5th Cir. 2008). So I sent an email to GoDaddy’s attorney pointing this out. I am glad to say that GoDaddy addressed this point in its reply breif which it just filed yesterday afternoon!

      Specifically, GoDaddy states: To the extent Appellees claim that Go Daddy violated mandatory federal regulations related to child pornography—an allegation that Go Daddy vehemently denies—the argument is insufficient on the facts admitted to overcome the
      immunity protections afforded by Section 230. The case of Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758 (E.D. Tex. Dec. 27, 2006) is instructive. In Bates, the plaintiffs, a mother and her minor child, sued Yahoo!, Inc. for permitting third-parties to post and exchange pornographic images of the minor on a Yahoo e-group. The lawsuit specifically sought to hold Yahoo!, Inc. liable for negligence, negligence per se, intentional infliction of emotional distress, invasion of privacy, civil conspiracy, and federal criminal law for its failure to prevent, remove, or block the distribution of child pornography on its website despite its alleged knowledge that such criminal content was being exchanged over its egroups. Id. at *6. Despite these serious allegations, the district court granted Yahoo!, Inc.’s motion to dismiss based upon the immunity afforded to interactive computer services under Section 230. Id. at *5.

      The appellate court will decide the case on Nov. 5th.

  2. My right to say things you disagree with is free speech and must be protected. When you say things I disagree with, it’s hate speech and must be stopped.

    See how that works?

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  4. Josh C says:

    Technically, she may be correct that courts have never protected valueless speech.
    Unless I’m reading Stevens wrong, the ruling wasn’t “Animal cruelty has zero value, but still has protection.” It seems much closer to “Do you even law, bro? All speech is protected; so-called ‘balancing tests’ to weigh the relative value of speech are not even a thing.”
    It still doesn’t support her overall position, but at least she has the approval of Bureaucrat 1.0.
    (http://www.youtube.com/watch?v=hou0lU8WMgo)

  5. Fred says:

    One important thing which has gone unmentioned is, do any of you honestly believe that a California jury would actually send a guy to jail for posting naked pictures of his ex? Aside from the fact that, what with jail realignment / overcrowding, six months in a California jail really only equals a couple of days (just ask Lindsey Lohan or any other Hollywood type). But assuming the prosecutor takes the case and is able to hoodwink a judge into not dismissing the case, would a jury vote to convict?

    What with a trial and all the appeals, such a case could cost the state hundreds of thousands of dollars. And accomplish, what, exactly? The pictures would still be online.

    • Mark Bennett says:

      It has gone unmentioned because it is unimportant and speculative. The First Amendment fight, with its attendant appeals, would come before the trial.

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