Franks dismissed claims by some groups, like American Civil Liberties Union, that criminal penalties for posting the photos infringes on behavior protected by the First Amendment.
“This isn’t protected speech, at least under any theory I can think of,” she said.
Rogers called me after talking to Franks, and I was quoted directly following her:
Other lawyers disagree, including Houston attorney Mark Bennett, who said the proposed laws, including the ones written by Franks, are unconstitutional.
Had I known exactly what Franks had told Brian Rogers, I would have said, “any idiot with a law degree knows the theory under which this is protected speech. If Franks can’t think of a theory under which revenge porn is protected speech, she’s incompetent.” But I don’t think she’s incompetent going on. I think she’s lying to Rogers. She does have a history, after all, of being untruthful about these matters.
Franks knows why revenge porn is protected speech: because speech is protected unless it fits into a recognized category of unprotected speech. She has made arguments for squeezing revenge porn into one category or another; I have shown why those arguments are specious. She has not responded, though she has claimed to have done so. She has never had to defend her thesis.
In their article Franks and Danielle Citron write, “Nonetheless, First Amendment doctrine holds that not all forms of speech is subject to strict scrutiny.” They provide no cite, and I contend that this is inaccurate: that all content-based speech restrictions are subject to strict scrutiny, and that they satisfy such scrutiny only if the government can show that no substantial amount of speech they restrict is unprotected. I look forward to seeing their cite for their proposition in the completed article.
They also misquote Eugene Volokh:
In his view, non-consensual pornography lacks First Amendment value as a historical matter and should be understood as categorically unprotected as obscenity.
Here’s what Volokh actually said:
But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.
That’s could, not should. Revenge porn could be treated as obscenity just as “consensual depictions of nudity” could be. I don’t think we want to open that particular door.
It may be that the Supreme Court will eventually recognize revenge porn as being in some category of unprotected speech. Citron thinks that an element of harm may be required for revenge porn statutes to withstand overbreadth challenges; Franks disagrees.
I’m with Citron1: the chances that a revenge-porn criminal statute will pass muster are better if the statute requires proof of harm—or, in my view even better, intent to cause harm. We would probably disagree on what “harm” is; I think there’s a modern tendency to treat hurt feelings and embarrassment as harm, and I would require an intent to cause more severe emotional distress than that.
I doubt that Franks is stupid. What endgame could she possibly envision, trying to pass statutes that even her coauthor thinks have First Amendment issues? Five years (at most) under her regime, before the massive rollbacks when the first such statute hits the Supreme Court? I don’t see anyone being helped by that but her.