2016.023: Law Profs Love Media Attention

From here:

Eugene Volokh, a professor at UCLA School of Law, told Vocativ in an email that he is “not a fan of most privacy-based speech restrictions,” but said “this law seems quite narrow, and pretty clearly defined.”

Seems.

There is no “seem” to it. The law says what it says. There is nothing more to it than this. Either you have read it and thought about it and redteamed it to figure out how narrow it is, or you make a handwavy statement to the press about how it “seems.” For those not familiar with the ways of lawyers, this is not an opinion on the constitutionality of the Internet Privacy Protection Act. It’s not at all hard to imagine a “but” following it. Like:

…but it is not as clearly defined as it seems.

or

…but it is not narrow enough to pass First Amendment muster.

From the same piece:

Similarly, Neil Richards, a First Amendment scholar and law professor at Washington University, underscored the importance of revenge porn laws being narrow enough so they aren’t “used as tools of censorship that threaten our commitment to free expression, including sexually-explicit expression,” but said, “I think on balance, this is a very well-drafted law.”

On balance. Well-drafted.

This is also not an opinion on the constitutionality of the proposed law. Imagine:

…but, well-drafted though it is, it is not likely to pass constitutional muster.

If Volokh or Richards were to opine that this proposed statute passed constitutional muster, it would be hard to square that endorsement with their writings on privacy and the First Amendment.

Here’s Eugene “Seems” Volokh:

This article has made three arguments. First, despite their intuitive appeal, restrictions on speech that reveals personal information are constitutional under current doctrine only if they are imposed by contract, express or implied. There may possibly be room for restrictions on revelations that are both extremely embarrassing and seem to have virtually no redeeming value, such as unauthorized distribution of nude pictures or possibly the publication of the names of rape victims, and perhaps for speech that makes it substantially easier for people to commit crimes against its subjects. Even these, though, pose significant doctrinal problems.

Second, expanding the doctrine to create a new exception may give supporters of information privacy speech restrictions much more than they bargained for. All the proposals for such expansion—whether based on an intellectual property theory, a commercial speech theory, a private concern speech theory, or a compelling government interest theory—would, if accepted, because strong precedent for other speech restrictions, including ones that have already been proposed. The analogies between the arguments used to support information privacy speech restrictions and the arguments used to support the other restrictions are direct and powerful. And accepting the principles that the government should enforce a right to stop others from speaking about us and that it’s the government’s job to create “codes of fair information practices” controlling private parties’ speech may shift courts and the public to an attitude that is more accepting of government policing of speech generally. The risk of unintended consequences thus seems to me quite high.

. . . . .

…[T]he one approach, though, that I think is entirely unsound is to simply ignore the potential free speech consequences. The speech restrictions that courts validate today have implications for tomorrow. Only by considering these implications can we properly evaluate the true costs and benefits of any proposed information privacy speech restriction.

And here is Richards:

Just because the disclosure tort is largely unconstitutional, it does not mean that many of the psychological injuries it seeks to remedy are not substantial.

Here, apropos of IPPA’s “bona fide” exception, is Neil “Tools of Censorship” Richards again:

The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.

Richards also once wrote (with Daniele Citron) in support of revenge-porn criminalization:

We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

The Supreme Court’s jurisprudence does not support those statements. But even if it does, the proposed IPPA does not contain as an element “violation of an express or implied trust.” It does not contain as an element the intent to intimidate, threaten or harass. So the proposed statute fails to fulfill even Richards and Citron’s own criteria for a revenge-porn statute.

It would probably be unfair to suggest that Eugene “Seems” Volokh and Neil “Tools of Censorship” Richards haven’t read the proposed IPPA: They’ve read it enough to say “seems” and “well-drafted.” It’s not unfair, though, to suggest that they haven’t engaged with it. They haven’t read it, thought about it, and redteamed it.

To redteam the statute, proponents will have to answer the questions that opponents will raise in court, and justify their answers:

  • Does the statute restrict speech?
  • Does the statute restrict speech based on its content?

If the answer to these two questions is “yes,” (it will be, because “porn”) then the statute is presumptively unconstitutional and the proponents will have to answer these questions:

  • Does the statute restrict only speech in a recognized category of historically unprotected speech?
  • If the statute does not restrict only such unprotected speech, is the overbreadth of the statute not real and substantial?

Here is where the proponents have not yet come up with more than vague hand-wavy answers. The speech forbidden by IPPA falls into no as-yet-recognized category of unprotected speech. That doesn’t stop the Supreme Court from recognizing a hitherto-unrecognized category of historically unprotected speech. But what would that exception be, and how would it affect speech other than what we think of as revenge porn?

It might surprise you to learn that the professionally aggrieved advocates of revenge-porn criminalization have not answered those questions.

The proponents of criminalizing revenge porn are playing in the big leagues now. The first prosecution under the new statute is going to be on a fast train to the Supreme Court, and some Assistant Federal Public Defender smarter than me, Volokh, and Richards combined is going to be driving the train.

Now is the time to decide how to define the category of unprotected speech that the proponents expect the Supreme Court to adopt. And now is the time to consider, as Volokh says, the “implications for tomorrow.”

 

3 Comments

  1. This is excellent. Unlike the ivy-covered law profs., you fight in courts to protect our rights. You know. Thank heavens there are a few practitioners like you (albeit too few).

  2. I’m guessing that the reporter chopped off Prof. Volokh’s quote and removed the context there. As you say, anything else is hard to square with what he’s written before.

    At least, I hope that’s the case.

  3. It might surprise you to learn that the professionally aggrieved advocates of revenge-porn criminalization have not answered those questions.

    Dunno that they have not answered the questions. Maybe not loud and clear, but I think the goal is not just revenge porn.

    Revenge porn is just the camel’s nose. It is a pretty big nose, since it is going to depend on several things that are problematic: whether it is “porn” whether a confidence is breached whether person posting material was the one committing the breach

    Let’s consider these. The standard for “porn” is set forth in Justice Stewart’s concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964). There, he defined it as “I know it when I see it”. The movie in question there was not obscene.
    Yes, it is content based. And it could be argued that, absent Justice Stewart being conveniently available upon need, it is difficult to know if your material might be obscene.

    But if it is, we proceed to the second question. Was there a breach of confidence. If so, how can I know from examining the material. Since this is to be a content based regulation, at the very least I ought to have some way to tell if the content is offending. Due process requires no less.

    Assuming we can determine that the material constituted a breach of confidence, was the confidence reposed in the person distributing the material? An unhappy former suitor could drop a cd-rom in a mailbox and flee, and the recipient only knows that he has a free supply of dirty pictures. For purposes of prosecution, we surely need some way to tell that the person distributing the material was the one who acted wrongfully by breaching the confidence.

    Like I said up front, I do not think the goal is simply revenge porn. There is no good way to tell what qualifies. But, assuming Justice Stewart is available, we can surely identify obscene pictures. And generally the proponents of such legislation strike me as exactly the sort of people who would be just as happy to eliminate all dirty pictures, not just “revenge” porn.

    With that in mind, I do not really expect a whole lot of analysis from the proponents of such legislation as to how the First Amendment would apply. The would remove dirty pictures from the protection entirely, and thus the other questions need not be addressed.

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