Me, October 24, 2013, here:
Professor Franks, when I say that you haven’t addressed counterarguments, I mean that. I’m sorry that you find it tedious that you be expected to address why, for example, in light of Stevens’s unambiguous rejection of a balancing test, you continue to insist that some sort of balancing test applies.
As for your working paper, I’ve yet to see any counter to my point-by-point analysis of it, here: http://blog.bennettandbennett.com/2013/10/are-statutes-criminalizing-revenge-porn-constitutional.html
Mary Anne Franks, October 24, 2013, here:
Sadly, Mr. Bennett, I do not have endless amounts of time to read everything that people write about me or my ideas.
Franks, November 25, 2013, commenting on Josh Blackmon’s blog (Blackmon had linked to my critique of Franks’s rationalization of her proposed statute):
Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work: http://www.concurringopinions…..
I don’t know how to interpret Franks’s new claim that she responded to my critique, after snottily denying a month ago that she could be bothered, as anything other than an out-and-out lie.1 So it’s through that prism that I invite you to view the rest of her quotes in Blackmon’s post, drawn from this U.S. News post:
The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.
Franks-to-English translation: “I am drafting the bill myself, and I haven’t found a sponsor who’s willing to sign on to my victimocratic newthink. Don’t they know that I can call them misogynists?”
“We’re going back and forth and actually writing the law with them,” said Franks, a board member of the Cyber Civil Rights Initiative, which was founded by “revenge porn” victim Holly Jacobs.
Franks-to-English translation: “I’m trying to write something that is not so clearly unconstitutional and destructive of freedom of speech on the Internet that I can get a member of Congress to put her name on it. That’s turning out to be a much higher bar than I would have thought. I keep trying, but nobody seems interested. They must all either be confused, or be threatened sexists.”
“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”
“Section 230 trumps any state criminal law, so a lot of companies can’t be touched by state criminal laws. And that is so upsetting to me that I’m willing to destroy the Internet ecosystem to undo it. Yes, I’d cut a great road through the law to get after the Devil.”
“The impact [of a federal law] for victims would be immediate,” Franks said. “If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.”
“Don’t think about the collateral consequences. Think only about the victims. Never mind that this would effectively shut down the Internet.”
“Hopefully,” she said, “we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown… that this is nonconsensual material and needs to be taken down.”
“Yes, I’m talking about a criminal statute, intended to put people in jail, but I’m going to make it seem more benign by talking about it like copyright.”
Franks says she’s seeking input on the federal legislation from EFF, the American Civil Liberties Union, large companies and others likely to have concerns.
“I sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to my personal email. I sent similar emails to people connected with the ACLU, Apple, and Verizon. I take it by their silence that they don’t disapprove. Because while I don’t have endless time to read the drivel people write about my ideas, I am important, and am entitled to a response.”
Gov. Jerry Brown, D-Calif., signed into law his state’s ban on “revenge porn” Oct. 1, inspiring a wave of proposals elsewhere. Self-shot photos are not covered by the California law and victims must prove emotional distress. Franks says she’s working with a California legislator to reverse the caveats, and says she’s helping legislators in seven other states write bills.
“Strangely, it’s much easier to find people who are not confused and are not threatened sexists in statehouses than in the U.S. Congress. The people must elect a higher quality of representative to serve in their state capitals than to serve in D.C.”
Rep. Jackie Speier, D-Calif., and Sen. Barbara Boxer, D-Calif., publicly expressed interest in a federal law, Franks said, but neither is the forthcoming bill’s sponsor.
“I didn’t say that they expressed interest in a federal revenge-porn law, now did I? As long as I don’t claim that someone is a sponsor I can keep trying to find one.”
This is not really a new phenomenon, but the phenomenon of victims being brave enough to come forward is new and hard for the mainstream public to ignore,” she said. “We’re in the middle of that momentum and this is the best time we could possibly do it. That being said, there are some pretty powerful forces on the other side who are going to be raising objections to this – so it’s anyone’s guess who is going to win out.”
“This phenomenon is more than a year old. We’re in the middle of a moral panic, and this is the best time we could get bad legislation passed. That being said, the First Amendment is a pretty powerful force on the other side, as is reason. I’m pretty much betting my professional future on this, so I’m going to hedge my bet and make an excuse now in case I eventually fail. So if my proposed statutes all go down in First-Amendment flames, remember, it’s not because I have stupid ideas that I can’t support with legal reasoning. It’s that there are pretty powerful forces on the other side.
“Because being a victim is better than being right.”
Is falsus in unum, falsus in omnibus a fallacious argumentum ad hominem? ↩