Revenge-porn-criminalization mouthpiece Mary Anne Franks writes in her Guide for Legislators:
The law SHOULD contain … narrow exceptions for disclosures made in the public interest. Otherwise, individuals could be prosecuted … for recording and reporting unlawful activity, such as flashing.
Franks’s model statute “does not apply to”:
Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.
A commenter here asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”
This raises questions, among them:
- When someone publishes something that is otherwise forbidden, who decides whether something is in the public interest?;
- What does it cost the speaker to get that decision;
- What is in the public interest, and what isn’t?; and
- What is the effect of the “public interest” exception on the chilling effect of the statute?
Suppose that Jane publishes something that offends John, and John calls the police. If the publication isn’t in the public interest, it is felonious. Who decides whether something is “in the public interest,” so that Jane is free, or is not, so that Jane is a convicted felon?
The cops could decide off the bat that Jane’s publication was “in the public interest,” and tell John to get a life. Or they could call…
The prosecutor, who could decline charges because Jane’s publication was “in the public interest,” or she could punt to…
The grand jury,1 which could no-bill Jane because her publication was “in the public interest,” or could true-bill her.
The judge doesn’t have the power to hear the case, decide that the publication was “in the public interest,” and dismiss the case over the prosecutor’s objection. Not, at least, until the State has rested its case at trial, when she can order a directed verdict. If she doesn’t, the case goes to…
The jury, which could acquit Jane if it had a reasonable doubt about whether the publication was “in the public interest.” If the jury doesn’t do so, Jane gets convicted. She may go to jail or prison, may be put on probation, or may make bail on appeal and go on to…
The court of appeals, which could rule that Jane’s publication was “in the public interest” as a matter of law. The Court of Criminal Appeals or the U.S. Supreme Court could do the same thing.
If the cops or the prosecutor decide that his speech was “in the public interest,” Jane might get off without being arrested, making bail, or getting a lawyer.
If the cops and the prosecutor both see her speech as not “in the public interest,” Jane will be cuffed and stuffed, have a public record made of her arrest, have to spend money getting out of jail, have to get a lawyer, have to take time off from her daily routine to go to court, and have to worry about the possibility of a conviction.
If, after she is charged, the charge is dismissed or she is acquitted she can petition for expunction, but this will cost her additional money and lawyer fees.
If she is convicted and appeals, the process keeps getting more expensive for her.
So what is Jane shooting for here? What does “in the public interest” mean? “The reporting of unlawful conduct” and “the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment,” sure. But not only that—the list in the model statute is explicitly non-exclusive: “including but not limited” to those things.
The commenter quoted above asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”. This is the wrong question. The right question is not whether the category of disclosure in which Jane is involved is generally in the public interest, but whether the particular disclosure by Jane is “in the public interest.”
Is it “in the public interest” for Jane to send a picture of her naked child to her mother? While I think it’s in the public interest for people to be able to send each other pictures of their naked children, I also think that free speech generally is in the public interest, which makes me the weirdo in this discussion. But while free speech generally is in the public interest, that particular disclosure is a purely private matter.
So the commenter and I disagree on whether Jane’s disclosure of the baby picture is in the public interest. And it’s a reasonable disagreement. We have juries to determine issues on which there can be reasonable disagreement.
“In the public interest” is a sop to the Weiner fetishists—those whose sole objection to revenge-porn criminalization is that statutes penalizing revenge porn would have forbidden the publication of Congressman Anthony Weiner’s penis pictures. “See,” the zealots can giddily say, “that would have fallen under the public-interest exception! So it wouldn’t be forbidden by this statute!”
Don’t fall for it. Cops might not have thought that the disclosure of Weiner’s pictures of his own jamschwaber was in the public interest. The prosecutor might not have thought that it was in the public interest. The jury might not have thought that it was in the public interest. Because “in the public interest” is not defined, the judge, the court of appeals, the Court of Criminal Appeals, and the Supreme Court might all have deferred to the jury.
Most people see as “in the public interest” those things that advance their agenda, and to see as “not in the public interest” those things with which they don’t agree. If the woman who leaked Weiner’s sexts had been prosecuted under the model statute in a jurisdiction very friendly to Weiner, everyone who in theory should have stopped the prosecution might have agreed that the disclosure was not in the public interest.
Imagine if flag burning, pornography, or criticism of public officials were a crime unless it was “in the public interest”: whether the state could get a conviction would depend on whether the community sided with or against the speech.
How does Jane know before speaking whether she will be subjected to prosecution? As a practical matter, we can’t count on elected officials or jurors to declare that unpopular speech is “in the public interest,” so absent a definition, what “speech in the public interest” means is “politically correct speech.” If Jane’s speech is politically popular, she is okay; if it is not, she is in danger.
How does the speaker know before speaking whether he will be subjected to prosecution?
Suppose that John is violent and dangerous. It’s “in the public interest” to reveal that, no? Suppose that there is some disagreement about whether John is violent and dangerous. Still in the public interest to disclose that Jane thinks he is? How about if, instead of violent and dangerous, Jane thinks that John is promiscuous and unfaithful? If other women know that, they’ll be better off. So is disclosure “in the public interest”? What if Jane illustrates her posts about John’s undiscriminating infidelity with pictures of John? What if the pictures happen to be nudes? Where do we cross the line from “in the public interest” to not “in the public interest”? I challenge you to name that point.
There is no principle on which we can decide what is “in the public interest.” It’s a feel-good phrase intended to make us think that the really important speech will still be protected. The problem is that the really important speech isn’t universally recognized as “in the public interest.” The really important speech is seen by the majority as not “in the public interest.” The really important speech is politically incorrect.
“In the public interest” is not some magic phrase that renders a content-based speech restriction constitutional and safe. Most people would choose not to speak rather than risk prosecution, even if they think they have a defense that will probably apply. A content-based statute that forbids speech unless it is politically correct is as chilling as a content-based statute that forbids all speech.
The model statute’s sop for the Weiner fetishists is no answer to the constitutional argument, and no cure for the problem caused by all overbroad content-based statutes: the problem of chilled speech.
We’re talking about Texas criminal procedure here because that’s what I know best. ↩