I shouldn’t be surprised, but I am. I knew it. I had written about it. But still I tried to engage Mary Anne Franks on the law, to explore the truth. Like Charlie Brown with his football, I allowed myself to be surprised by more of the same: Overstate your case. Misstate the law. Make handwaving generalizations. Demonize disagreement. Use false analogies. Lie.
Mary Anne Franks won’t engage on the law in any honest way. She confesses why:
The bottom line for me as an activist and legislative advisor (as opposed to as a scholar, because the roles are slightly different) is to draft and support laws that protect victims and comply with the First Amendment.
Franks is a true believer. When it comes to revenge-porn legislation, she is writing not as a scholar but as an activist—a role that is not only “slightly different,” as she claims, from that of scholar, but radically different. How so? Scholars explore the truth. Activists try to get things done. If you see yourself as an activist, the end justifies the means, so overstate your case, misstate the law, make handwaving generalizations, demonize disagreement, use false analogies, lie.
As Nathaniel Burney notes,
And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?
It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.
Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?
There may be sound arguments in favor of the constitutionality of Franks’s pet project, but Franks hasn’t yet made them. I’m not the finest First Amendment scholar I know, but I have learned a thing or two about the First Amendment through actually litigating free-speech issues, and I will stake my arguments for the unconstitutionality of Franks’s revenge-porn statute against her arguments for its constitutionality in any court of appeals anywhere.
In her writing in justification of revenge porn, Franks has sacrificed scholarship on the altar of activism. If she didn’t have the title of “professor,” no lawyer with any background in First Amendment law would take her polemics seriously.
Now Franks is writing a paper with her fellow true-believer Danielle Citron on the subject. Scott Greenfield suggests that the Academy may be lacking in guts, afraid to be called “misogynist”; if that is so, then Franks’s activist pseudoscholarship is sure to find a home.