2015.15: F**king Danielle Citron

I guess I missed it at the time because it’s on Forbes.com, which I try to avoid. But last April Danielle Citron wrote Debunking the First Amendment Myths Surrounding Revenge Porn Laws:

Disclosing someone’s nude image in violation of trust and confidence (often known as nonconsensual pornography or revenge porn) is a destructive invasion of privacy that can cause irreversible harm to a person’s physical and emotional well-being, professional reputation, and financial security. Lawmakers are rightfully paying attention. Seven states have criminalized the practice; 18 states have pending bills; Representative Jackie Speier has expressed interest in making it a federal crime.

Some object to criminalizing invasions of sexual privacy because free speech will be chilled. That’s why it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.

Citron and Franks disagree on this point: Franks’s model statute requires neither knowledge nor malice. It would punish people who disclose nude images if they “knew or should have known”—a negligence standard—that disclosure was nonconsensual.

The narrower the statute, the harder it is to prove, and proponents of criminalization want to make their crimes easier to prove.

Other features of anti-revenge porn laws can ensure that defendants have clear notice about what constitutes criminal activity and exclude innocent behavior and images related to matters of public interest.

That statute hasn’t been written yet. Mary Anne Franks’s model statute, for example, would capture the innocent behavior of sharing naked baby pictures.

Even so, some argue that revenge porn laws are doomed to fail because nonconsensual pornography does not fall within a category of unprotected speech. To criminalize revenge porn, they say, the Court would have to recognize it as new category of unprotected speech, which it would not do.

“Which it would not do” is a strawman. Nobody who knows First Amendment law knows that the Supreme Court will not recognize another category of unprotected speech. In U.S. v. Stevens, in fact, the Court wrote, “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.”

On the other hand, nobody who knows First Amendment law knows, as Citron pretends to know, that the Supreme Court will recognize another category of unprotected speech.

Another argument is that even if law could secure civil remedies for revenge porn, it could not impose criminal penalties because the First Amendment treats criminal and civil laws differently.

Below I will demonstrate conclusively that the First Amendment treats criminal and civil laws differently, and explain why.

These objections are unfounded and deserve serious attention lest they be taken seriously.

Oh, good. Serious attention to the objections. So that they won’t be taken seriously.

Myth #1

Let’s first address the argument that revenge porn laws are unconstitutional because they do not involve categorically unprotected speech like true threats. Advocates rely United States v. Stevens, which struck down a statute punishing depictions of animal cruelty distributed for commercial gain.

Yes, yes we do. That’d be the U.S. v. Stevens that said, “From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations” and then went on to list nine historic and traditional categories of unprotected speech.

In Stevens, the Court rejected the government’s argument that depictions of animal cruelty amounted to a new category of unprotected speech. As the Court explained, the First Amendment does not permit the government to prohibit speech just because it lacks value or because the “ad hoc calculus of costs and benefits tilts in a statute’s favor.” The Court explained that it lacks “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” The Court did not say that only speech falling within explicitly recognized categories (such as defamation, true threats, obscenity, imminent incitement of violence, and crime-facilitating speech) are proscribable. To the contrary, the Court specifically recognized that other forms of speech have “enjoyed less rigorous protection as a historical matter, even though they have not been recognized as such explicitly.”

In short, the Court said that it would have to recognize another category of unprotected speech to uphold the statute, and it declined to do so.

Disclosing private communications about purely private matters is just the sort of speech referred to in Stevens that has enjoyed less rigorous protection as a historical matter.

This is simply Citron’s position.

Here’s our first runin with the “disclosing private communications about purely private matters” theory of revenge-porn liability. The Supreme Court hasn’t said that disclosure of private communications as unprotected speech, or it would have listed “disclosure of private communications about purely private matters” as a category of unprotected speech in Stevens or Alvarez. That would make this argument easy.

Categories of unprotected speech are categories. Everything within them is unprotected. There is not protected defamation and unprotected defamation. There is not protected child porn and unprotected child porn. There are not protected true threats and unprotected true threats. All defamation, all child porn, and all true threats are unprotected and can be punished by the state.

Are all “disclosures of private communications about purely private matters” unprotected? If not, this is not a category.

Professor Neil M. Richards, whom Citron cites later in this article, writes that “when disclosure privacy conflicts with free expression, we should choose free expression, subject to a few limited exceptions.” Richards’s view does not support disclosures of private communications about purely private matters as a category of unprotected speech.

We do not need a new category of unprotected speech to square anti-revenge porn criminal laws with the First Amendment.

That’s true enough—we don’t need a new category; we just need the Supreme Court to recognize a historically unrecognized category of historically unprotected speech, something that it has shown itself reluctant to do: “Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Now for the cases establishing that precedent.

Smith v. Daily Mail, decided in 1979, addressed the constitutionality of a newspaper’s criminal conviction for publishing the name of a juvenile accused of murder. The Court laid down the now well-established rule that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish the publication of the information, absent a need to further a state interest of the highest order.”

As you can tell from the name, it’s a civil case. The inference that Citron would have us draw from the quoted language is that there’s a different rule for truthful information about matters not of public concern. To draw that inference we would have to reason that the Supreme Court described this narrow rule because a broader rule would not be true. That would be fallacious. “Speech about matters of public significance is constitutionally protected, therefore speech about matters that are not of public concern is unprotected” demonstrates the logical fallacy of denying the antecedent.

The only Supreme Court cases that we can confidently depend on for the principle that speech about matters that are not of public concern is unprotected speech are Supreme Court cases saying that speech about matters not of public concern is unprotected. We might guess from cases saying that things like speech about matters not of public concern are unprotected, but cases like Smith don’t get us anywhere close.

Ever since the Court has refused to adopt a bright-line rule precluding civil or criminal liability for truthful publications “invading ‘an area of privacy’ defined by the State.” Rather the Court has issued narrow decisions

The link is to The Florida Star v. B.J.F., which overturned a civil judgment against a newspaper for publishing the name of a rape victim in violation of a Florida civil statute. Again Citron implicitly denies the antecedent.

In The Florida Star the Court wrote, “We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” In other words, the Court will look at the law as applied to the facts and rule. That is how the Court’s civil First Amendment jurisprudence works. It is not how the Court’s criminal First Amendment jurisprudence works.

I’m a trench lawyer. I’m not an academic. I don’t write law review papers (haven’t for 20 years, at least). I write briefs and argue to courts in the face of fierce opposition. Citron’s arguments might be nice in academia, but they won’t stand up to litigation.

that specifically acknowledge that press freedom and privacy rights are both “plainly rooted in the traditions and significant concerns of the society.’”

So what? Christianity is also plainly rooted in the traditions and significant concerns of the society, but it doesn’t trump the First Amendment; nor does privacy. Again, Citron looks for substance in the white space.

Consider Bartnicki v. Vopper. There, an unidentified person intercepted and recorded a cell phone call between the president of a local teacher’s union and the union’s chief negotiator. During the call, one of the parties talked about “go[ing] to the homes” of school board members to “blow off their front porches.” A radio commentator, who received a copy of the intercepted call in his mailbox, broadcast the tape. The radio personality incurred civil penalties for publishing the cell phone conversation in violation of the Wiretap Act.

Bartnicki was an appeal of a civil case; such appeals are as-applied, rather than as-written, challenges to the law.

The Wiretap Act forbids the disclosure of intercepted communications. It is not a content-based restriction on speech. It does not favor one sort of speech over another; it is content-neutral. The standard for upholding a content-neutral restriction on speech is lower than that for upholding a content-based restriction like a revenge-porn statute. And still the Court struck the penalty in Bartnicki.

The Court characterized the wiretapping penalty as presenting a “conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.” For the Court, free speech interests appeared on both sides of the calculus. The Court recognized that “the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself.” The penalties were struck down because the private cell phone conversation about the union negotiations “unquestionably” involved a “matter of public concern.”

Once more Citron looks for validation in the gaps between the words. She wants Bartnicki, in which the First Amendment won over a content-neutral civil statute to stand for the proposition that the First Amendment might lose to a content-based criminal statute.

It doesn’t. It can’t.

Because the private call did not involve “trade secrets or domestic gossip or other information of purely private concern,” the privacy concerns vindicated by the Wiretap Act had to “give way” to “the interest in publishing matters of public importance.”

This is not a “because”; it is two separate thoughts. The entirety of the sentence that Citron quotes first is, “We need not decide whether that interest is strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern” (my emphasis).

Try as I might, I cannot attribute Citron’s omission to anything other than intellectual dishonesty. Such dishonesty doesn’t get a real lawyer anywhere, when another real lawyer with a real client is getting paid real money to demolish his argument. Academia!

The state interest in protecting the privacy of communications is strong enough to justify regulation if the communications involve “purely private” matters, like nude images.

That’s not what Bartnicki v. Vopper says. In fact, Bartnicki v. Vopper explicitly says that it’s not saying that. The Supreme Court has expressly reserved the question of whether truthful publication of private matters unrelated to public affairs can be constitutionally proscribed.

Neil Richards has persuasively argued,

This is the argument from authority. It may be persuasive to Citron (or she may just be giving tummy rubs to a fellow prof who thanked her “for helpful comments and conversations” in the linked article (here’s a PDF). But “persuasive” is a low bar when you want to believe.

and lower courts have ruled,

I’m not sure which courts Citron is thinking of, but lower courts are not the Supreme Court. This issue is going to be decided there, and it’s a bold court that bucks Stevens and Alvarez on overbreadth challenges to content-based restrictions on speech. It’s a bolder court that recognizes a category of unprotected speech that the Supreme Court has not yet recognized.

a lower level of First Amendment scrutiny applies to the nonconsensual publication of “domestic gossip or other information of purely private concern.”

Read Richards’s article: he does not actually argue this. What he does (at pp. 377–79) is discuss  the rule from Smith v. Daily Mail, reaffirmed in Bartnicki, that “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need…of the highest order.” From this rule he extracts, denying the antecedent, “A third exception under current law is that disclosures of private information that is not of legitimate concern to the public (or “newsworthy”) are entitled to a lower level of First Amendment protection.”

But Richards goes on to say: “[Lawprof Daniel] Solove relies on this exception when he argues that because the Supreme Court has hinted that speech on matters of private concern is less protected than other kinds of speech, the Court ‘has thus left open an area for the public-disclosure tort to thrive.’ This interpretation of the law probably overstates the vitality not only of the disclosure tort, but of disclosure-based theories of privacy more generally.” (Emphasis is mine.)

Richards notes, further, that “courts are reluctant to second-guess the views of individual citizens about what the legitimate topics of public debate really are. The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]” (Emphasis is mine.) With regard to “information of purely private concerns,” however, Richards concludes, “it is hard to imagine a category beyond the dissemination of videos of sexual or other intimate bodily activities that would satisfy this exception.”

The only two cases using the quoted language are Bartnicki and, from the California Supreme Court, DVD Copy Control Ass’n v. Bunner, which makes the weak denying-the-antecedent assertion that “Bartnicki implicitly acknowledges that a balancing of First Amendment interests against government interests in the trade secret context may yield a different result.”

Bunner was pre-Stevens. In Stevens the Court explicitly rejected a balancing test for determining whether speech  was unprotected, finding “startling and dangerous” the Government’s proposition that “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.”

Appellate courts have affirmed the constitutionality of civil penalties under the wiretapping statute for the unwanted disclosures of private communications involving “purely private matters.”

Citron doesn’t identify the cases or appellate courts she’s talking about. The only post-Bartnicki case that I know of is Boehner v. McDermott, out of the D.C. Circuit. There one factor was that the rules of the ethics committee that Rep. McDermott served on barred him from disclosing an illegally made audio recording of Rep. Boehner; because of that, the court held, McDermott’s disclosure of the recording was not protected by the First Amendment.

The wiretapping statute is content-neutral, and civil appeals are as-applied challenges. What the appellate courts have done on as-applied challenges to content-neutral statutes says nothing about what they will do on an as-written challenges to a content-based statute, which is the sort of challenge that defendants would be well-advised to bring to a revenge-porn penal statute.

That said, as Richards writes, “there is a crucial distinction between breaking the law to obtain information and the innocent dissemination of news generated by that law-breaking.”

Along similar lines, lower courts have upheld claims for public disclosure of private fact in cases involving the nonconsensual publication of sex videos. In Michaels v. Internet Entertainment Group, Inc., an adult entertainment company obtained a copy of a sex video made by a celebrity couple, Bret Michaels and Pamela Anderson Lee. The court enjoined the publication of the sex tape because the public had no legitimate interest in graphic depictions of the “most intimate aspects of” a celebrity couple’s relationship. As the court explained, a video recording of two individuals engaged in sexual relations “represents the deepest possible intrusion into private affairs.”

Michaels is another civil case, with an as-applied challenge to the judgment. This time, though, the court is not even an appellate court but the U.S. District Court for the Central District of California, from 1998 and not cited approvingly by any court since. This case represents a judge’s personal opinion. Unfortunately, the case was not appealed, so we don’t know what the Supreme Court might have to say about it.

What’s the difference between an as-applied challenge and an as-written challenge? In the as-applied challenge the defendant (here, Internet Entertainment Group, Inc.) is arguing that its speech is constitutionally protected. In an as-written challenge the defendant is arguing that regardless of whether her speech is constitutionally protected, the statute punishes a substantial amount of constitutionally protected speech because of its content, and is void, which bars her prosecution.

Citron’s argument presumes that the outcome of the as-applied challenge in the civil case in a district court helps predict the outcome of the as-written challenge in a criminal case elsewhere. That is a stretch.

If there had been a criminal statute forbidding IEG’s conduct and IEG had been indicted, IEG could have made an as-written challenge to the statute, which would not have depended on IEG’s conduct but only on the language of the statute. The result might very well have been different.

These decisions support the constitutionality of efforts to criminalize revenge porn.

Non sequitur.

Nude photos and sex tapes are among the most private and intimate facts;

Generally though probably not universally true.

the public has no legitimate interest in seeing someone’s nude images without that person’s consent.

Citron is not saying that the public’s interest in seeing transgressive art photos is outweighed by the subjects’ right to privacy, but that such an interest is not legitimate. This is quite a blithe normative assertion. Never? Art photos? Anthony Weiner’s penis?

How about a legitimate interest in seeing someone’s non-nude images without that person’s consent? I think that we would agree that such an interest is often legitimate. Why is nudity magical?

Professor Richards makes the point repeatedly that the power to make this call—legitimate interest or not—is the power to censor.

A prurient interest in viewing someone’s private sexual activity does not change the nature of the public’s interest.

Did you know that “prurient” doesn’t mean merely sexual, but sleazy? So how about a sexual interest? Is sex legitimate? Is sexual interest legitimate?

It seems to me that the interest in titillation would, in a non-puritan society, be seen as legitimate. It might be insignificant compared to the subject’s interest in remaining private, but “no legitimate interest” is overselling the case.

On the other hand, the nonconsensual disclosure of a person’s nude images would assuredly chill private expression.

Possibly.

Without any expectation of privacy, victims would not share their naked images.

Sure they would: they have no legally recognized expectation of privacy now, and yet they share their naked images.

With an expectation of privacy, victims would be more inclined to engage in communications of a sexual nature.

Maybe. See above.

Such sharing may enhance intimacy among couples and the willingness to be forthright in other aspects of relationships.

I’m down with that.

The fear of public disclosure of private intimate communications would have a “chilling effect on private speech.”

First Amendment law is not concerned with private parties’ actions having a chilling effect on private speech, but rather with state action. The fear of harsh criticism of mediocre ideas can, like the fear of public disclosure of private communications, have a chilling effect on private speech, but we don’t look to the state to punish it with imprisonment.

In other words, if Jane’s speech chills John’s speech, that’s not a matter of First Amendment concern. If the state’s speech chills either Jane’s or John’s speech, it is.

When would victims’ privacy concerns have to cede to society’s interest in learning about matters of public importance? Recall that women revealed to the press that former Congressman Anthony Weiner had sent them sexually explicit photographs of himself via Twitter messages.

Ah, yes. There‘s Weiner.

His decision to send such messages sheds light on the soundness of his judgment. Unlike the typical revenge porn scenario involving private individuals whose affairs are not of broad public interest, the photos of Weiner are a matter of public import, and so their publication would be constitutionally protected.

I discuss the problem of the “in the public interest” exception at length here. TL;DR: it’s vague, and a defendant can’t rely on it when she wants to speak.

Who decides whether a disclosure is a Weiner situation? As Professor Richards says in the article that Citron found so persuasive, “The idea that courts should police what publications are of ‘legitimate concern to the public’ and which are not raises a serious risk of censorship.… [W]hile the line between public and private is easy to understand in the abstract, in practice it is very hard to draw with any confidence or predictability.… Giving a court the power to declare information ‘illegitimate’ under a malleable standard is to give that court the power to censor expression that it (or a jury) dislikes, and is at odds with modern commitments to the freedom of speech.” (My emphasis.)

Another way to understand the constitutionality of revenge porn statutes is through the lens of confidentiality law. Woodrow Hartzog persuasively

Lawyers know that calling an argument “persuasive” makes it less persuasive. Law profs should learn this.

contends that revenge porn is a “legally actionable breach of confidence.” As Neil Richards and Daniel Solove have argued, confidentiality regulations are less troubling from a First Amendment perspective because they penalize the breach of an assumed or implied duty rather than the injury caused by the publication of words. Instead of prohibiting a certain kind of speech, confidentiality law enforces express or implied promises and shared expectations.

The third link is to Cohen v. Cowles Media Co., in which the newspaper was held liable for breaching its duty of confidentiality to the plaintiff, who gave information to the newspaper under an explicit confidentiality agreement, only to see the newspaper publish it.

“Alex” asked here, “do the disclosure prohibitions in [Texas Code of Criminal Procedure article] 39.14(e) violate the First Amendment?” Cohen helps us with a framework to answer that question: since you wouldn’t even have the information but for the explicit confidentiality clause, the First Amendment isn’t violated by your revealing it.

Richards and Solove are right: treating revenge porn as a breach of confidence is a less-bad idea than treating it as a disclosure of private facts. Only the person breaching the confidence (the person who took the pictures, or the person who received them from the complainant who took them) is likely to be a party to the complainant’s confidence. So the class of people who could be prosecuted for the publication would be narrower (as Hartzog writes, “While romantic partners who receive explicit materials might be prohibited from further disclosure, websites and other third-party recipients are not bound by the same rules because they presumably have no relationship with the person depicted in the media”), and the state’s burden would be higher. The more difficult it is to prove a case under a penal statute restricting speech, the less likely the statute offends the First Amendment.

The more difficult it is to prove a case under a penal statute, the less authoritarian-minded people like the statute. So, because the class of people who could be prosecuted for the publication would be narrower and the state’s burden higher, the model revenge-porn-criminalization statute does not treat revenge porn as a breach of confidence.

I haven’t seen a revenge-porn-criminalization statute that treats revenge porn as a breach of confidence. They all seem to say that it’s a crime to disclose an image if, at the time of disclosure, the defendant knew or should have known that the complainant had not consented. For Cohen‘s reasoning to support a revenge-porn criminalization statute, the defendant would have to have received the image because of a shared understanding at that time that she would not disclose them outside of the relationship. This would be a high burden—appropriate to a criminal case—for the state, but not insurmountable.

There is, however, the RAV v. St. Paul problem: the Supreme Court wrote in RAV that a category of unprotected speech “may not be made the vehicle[] for content discrimination unrelated to [its] distinctively proscribable content.” Likewise, the Court would not likely allow a content-neutral rule (“breaches of confidentiality may be penalized”) to support a content-based restriction. If the state is going to outlaw breaches of confidentiality, it must outlaw breaches of confidentiality regardless of their content.

Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.

Myth #2

Now for the view that civil revenge porn remedies might stand but that criminal penalties cannot because the First Amendment has different rules for them.

Alright! Let’s go! Prove that the First Amendment does not have different rules for civil and criminal penalties.

Generally speaking, the First Amendment rules for tort remedies and criminal prosecutions are the same.

In the first sentence of this section Citron demonstrates that she doesn’t intend to prove her thesis: that the First Amendment has the same rules for criminal penalties as for civil penalties. “Generally” is a weasel word. Either the rules are the same, or they are different. If they are “generally” but not universally the same, then they are different. (It would be denying the antecedent for me to say that if they are “generally” the same they are different, because they could be both “generally” the same and entirely the same. But Citron presumably used that weasel word for a reason; if she could have left out “Generally speaking,” she would have.)

You can say that the rules are the same, but the procedures are different, and different procedures yield different results.

Tort judgments are reviewed after a jury has heard the facts and decided liability. Courts review them based on the particular facts. The question in a tort liability case is, “is this speech protected?”

Courts review penal statutes as-written, without regard to the facts. The question in a criminal case is, “regardless of whether this speech is protected, does this statute criminalize a substantial amount of protected speech, that is, speech not in a category of unprotected speech?”

Asking different questions yields different answers.

On the point, Eugene Volokh has said

Here comes another argument from authority. Volokh is not persuasive because he is Volokh; he is persuasive when he discusses the application of applicable Supreme Court opinions.

that the Court has “refused invitations to treat civil liability differently from criminal liability for First Amendment purposes.”

In civil cases, the plaintiff has convinced the judge that the speech is unprotected (in summary judgment proceedings) and has convinced the jury that a money judgment is appropriate, before the case gets to the Court of Appeals. In criminal cases, the defendant has been jailed before anyone has ever considered that his speech might be protected.

The Court has not acknowledged that it treats civil liability differently than criminal liability. Practically, it treats civil liability differently than criminal liability. In FCC v. Pacifica Foundation the Court strongly hinted that it would treat civil and criminal liability differently: “The statutes authorizing civil penalties incorporate § 1464, a criminal statute. But the validity of the civil sanctions is not linked to the validity of the criminal penalty.” If the validity of the civil sanctions and the validity of the criminal penalty are not linked, then they may be treated differently.

There are procedural differences, unacknowledged but obvious, between civil First Amendment procedure and criminal First Amendment procedure, and procedure is everything.

There are civil cases analogous to criminal cases in that the speaker may be punished for speech that has been defined up front. These are “prior restraint” cases.

There are civil cases analogous to criminal cases in that the penalty may be punitive rather than merely compensatory. These are punitive damages cases.

Both prior restraint cases and punitive damages cases are treated differently than ordinary tort liability cases.

In an e-mail exchange, he pointed to “New York Times Co. v. Sullivan, Garrison v. Louisiana,

New York Times Co. v. Sullivan was the 1964 case first applying the First Amendment to civil liability. Before that, tort liability was not considered state action. It was in Sullivan that the Court said, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.”

Garrison v. Louisiana was another 1964 case, in which the Court applied Sullivan to a criminal defamation case. The court held that the state could not punish criminally what it could not punish civilly.

Read together, Sullivan and Garrison—from the earliest days of the First Amendment’s application to civil cases—say that the substantive law of defamation is the same in civil and criminal court.

Fourteen years later in FCC v. Pacifica, however, the Court suggested that the substantive law of indency might be different in civil and criminal court: “The statutes authorizing civil penalties incorporate § 1464, a criminal statute. But the validity of the civil sanctions is not linked to the validity of the criminal penalty.”

and the Court’s rejection of Justice Stevens’ proposal in the late 1970s to bar criminal prosecutions for obscenity.” In New York Times v. Sullivan, the Court explained, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law.” As the Court recognized, the treatment is the same though the threat of civil damage awards can be more inhibiting than the fear of criminal prosecution

That may be true when you’re dealing with corporations, but try convincing someone who is facing a felony conviction that the threat of civil damage awards is more inhibiting than the fear of criminal prosecution.

and civil defendants do not enjoy special protections that are available to criminal defendants, such as the requirement of proof beyond a reasonable doubt.

There is a reason that criminal defendants have protections that civil defendants don’t have: they are facing the power of the state. Even with those protections, criminal defendants are at a severe disadvantage. A criminal defendant doesn’t have the benefit of an anti-SLAPP statute, her adversary always has grossly more resources than she does, she cannot file a motion for summary judgment, and if she loses she loses much more than money: she loses her good name and her freedom.

You’d rather be prosecuted for speech than sued for speech? Not if you’re smart.

It’s worth noting Volokh’s view that “the vagueness doctrine may be more in play in criminal cases than in civil cases (compare FCC v. Pacifica Foundation and its stress on absence of criminal liability); a mens rea of recklessness or worse may be required for criminal liability in public concern libel cases (by analogy to Gertz v. Robert Welch’s holding about punitive damages).” In his view (and in mine): “I don’t think that the revenge porn statutes that I’ve seen suffer from vagueness problems.”

For the revenge porn statutes that I’ve seen not to suffer from vagueness problems, “in the public interest” would have to be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Is that what you’re saying, Professor Volokh?

Volokh hasn’t given much public attention to the constitutionality of specific proposed revenge-porn statutes; there is probably a reason for this. I wonder if Citron is transgressing by quoting his private e-mail.

More to the point, if the vagueness doctrine is “more in play in criminal cases than in civil cases,” then civil and criminal liability are treated differently, and we’re just haggling over the price.

So these two myths should be seen and understood for what they are: misleading and uninformed. If we are going to oppose revenge porn efforts, let’s be honest about why. Opponents may reject them on policy grounds. They can worry that it is a bad idea to criminalize revenge porn. They can insist it is no big deal, though I’d disagree as would the countless victims, advocacy groups like the Cyber Civil Rights Initiative and Without My Consent, and my colleague Mary Anne Franks. Let the discussions on the merits begin.

So this “debunking” should be seen and understood for what it is: fallacious and dishonest.

Let’s be honest about why we oppose revenge-porn-criminalization efforts. Because we are libertarians who oppose criminalization of more things generally. Because the term “revenge porn” means different things to different people, is slippery, and seems to grow every year. Because we think that civil penalties are better calibrated to address the harms of revenge porn.

Most importantly, though, because even though we might agree that there is revenge porn—the malicious disclosure of erotic pictures—that is worthy of condemnation and perhaps should be criminalizable, we also recognize that to uphold a revenge-porn criminalization statute the Court would have to either shoehorn it into an already-recognized category of unprotected speech or recognize a new category of unprotected speech. Franks and Citron have proposed, for example, that revenge porn be treated as obscenity (already-recognized category) or “purely private speech” (new category), either of which would allow the state to criminalize not only the distribution of revenge porn, but also the consensual creation of the images themselves.

Citron proposes that revenge porn could be criminalized as a breach of confidence. This might wire around the Stevens problem but create a RAV problem. We will be able to more meaningfully discuss that once we see a proposed statute treating revenge porn as a breach of confidence. Until then we cannot, as Citron suggests, “[l]et the discussions on the merits begin.”

P.S. “F**king” is fisking. Sicko.

14 Comments

  1. Reading this is like taking a stroll through Citron’s world of logical fallacies. As Citron is by far smarter and more experienced than Mary Anne Franks (who is the first to call anyone who disagrees with her intellectually unworthy of her time and effort), I assume Citron to be well aware of the games she’s playing, and willing to sell her intellectual honesty for scoring a few cheap advocacy points with those incapable of seeing through her claims.

    What strikes me as most unfortunate is that this appeared at Forbes, a platform of little intellectual merit but one with broad readership. There are a couple of new law school graduates who have been writing on this subject on popular platforms, and who have challenged revenge porn laws, but they seem both conflicted in their views and lack your depth. Indeed, both are rather shallow and one is borderline incomprehensible. They are the popular face of challenging arguments such as Citron’s here. They are not up to the task.

    What strikes me as most disappointing is that your post, a magnum opus, will not receive the level of popular interest that Citron’s received at Forbes, or academic interest because few lawprofs are willing to weather the ad hominem attacks from Citron and Franks.

    So they will continue to push their agenda, using their authority as academics and intellectually dishonest claims, and real people will suffer until these laws are held unconstitutional. I’m deeply disappointed that the rest of the legal academy lacks the guts to call them out, or at least to bring posts like this to the forefront if they lack the will to say so themselves.

  2. The fear of harsh criticism of mediocre ideas can, like the fear of public disclosure of private communications, have a chilling effect on private speech, but we don’t look to the state to punish it with imprisonment.

    Except of course many of the same folks who are all gung-ho about these sorts of laws are typically all about criticism of the “wrong” ideas being defined as some sort of “hate speech” or oppression, and they absolutely will continue to seek legal quashing of that as well.

  3. This is a persuasively persuasive argument! In all seriousness, though, thanks; this is a great analysis and check on some of the weaker arguments of the pro-criminalization crowd…

    1. “Some of the weaker arguments”? I’m afraid this is really all they’ve got. I keep hoping a competent lawyer will take up the pro-crim side so we can have an actual discussion.

  4. I’m sure there are other weak arguments they make elsewhere that you didn’t refute here, but it gives you something to do next week. Perhaps the best arguments are being saved for the federal legislation.

  5. There is one aspect on which civil matters are different than criminal matters as a question of law (and not just asking the question differently). In a strict scrutiny analysis for a content based restriction, one prong that must be passed is the “least restrictive means” test. In a civil matter, a judgment can be case-specifically crafted to be the least restrictive means, such as a narrowly tailored injunction. In a criminal matter, that is not the case, and the least restrictive means of accomplishing the compelling government interest must be whatever the maximum sentence set forth by the legislature is.

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