2015.23: Hacking the DWI Checkpoint

If law is the operating system for society, then good lawyers are hackers. In the criminal justice system, there are white-hat hackers and black-hat hackers; which are which depends on your point of view. If you favor safety over freedom, prosecutors wear white hats and people like me wear black. If you prefer freedom to safety, it’s the other way around.

Whichever way it is, there are people getting paid to use the rules of the system, or to change them if possible, to their clients’ advantage. If a good criminal-defense lawyer can find a way to get her client out of trouble, she’ll do so.

Those who think they’ve found a magical way to get or stay out of trouble that lawyers aren’t using often believe that the lawyers aren’t using it because they are part of a conspiracy to keep the truth from the public. But there is no British Accreditation Registry, no secret agreement among lawyers to conceal from the public the source code of the system. In fact, that source code is open-source. Interpreting it requires training and experience, though, and the Uniform Commercial Code is not foundational.

Matt Brown (in Tempe next to the Olive Garden) and Scott Greenfield both wrote recently about a video that has been circulating purporting to show how to get through a DWI checkpoint unscathed. Per Brown:

An interesting DUI checkpoint video has been circulating lately. In it, the driver gets through without even rolling down his window, passing by with ease thanks to a plastic bag attached to his car with a string. The bag contained his license, registration, insurance information, and a note saying “I remain silent,” “No searches,” and “I want my lawyer.” As clever as it may be, it’s also dangerous to think it will always be that easy.

Greenfield notes that there is a lawyer, Warren Redlich, behind the video:

But that there have been more than 2.2 million views of this video, as of this writing, based on Warren Redlich’s legal incisiveness suggests that there will be a whole lot of stupid happening on the roads.  While this may comport with Warren’s libertarian politics, it’s just truly bad and deeply disturbing lawyering.

If you try this and things don’t work nearly as well as the video, give Warren a call. I’m sure he will be there to defend you pro bono.  And maybe he’ll win, if the cop doesn’t show up again.

He apparently doesn’t think it’s a good idea. Neither does Brown, who writes:

I’d only recommend doing what the guy in the video did to people who are not breaking any laws…. If you try the stunt in the video and it turns out you have a high blood alcohol concentration, drugs in the car, or are doing something else illegal, it will probably never work.

I have to disagree with Brown. I’d only recommend doing what the guy in the video did if you are breaking the law, and if the cops are going to detect that you are—for example, if you have a high blood alcohol content or a car full of weed smoke. There are a thousand ways the police can get you out of the car (they are more experienced at legal hacking than you are, and they lie with impunity), and if they go to that trouble they are going to make your life more difficult even if you weren’t really doing anything wrong (in Texas, checkpoints are illegal, but almost everything is an arrestable offense). You may beat that rap, but you won’t beat the ride. (Section 1983 suit? Ha. Good luck with that.)

If, however, you were doing something wrong, then by throwing up lawful obstacles to the detection of your crime you increase your chances of eventually beating the rap. The more legal puzzles the police have to solve to gather evidence against you, the more likely it is that they will screw something up and make the evidence suppressible.

Of course, if you were doing something wrong you probably would have avoided the checkpoint in the first place, and if you were intoxicated and didn’t avoid the checkpoint you probably wouldn’t have the presence of mind to dangle your documents out the window.

Have no fear, though. You can always fall back on this:

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2015.22: Illinois’s Revenge-Porn Statute

Here’s the meat of Illinois’s new revenge-porn criminalization statute:

720 ILCS 5/11-46 Sexual exploitation via non-consensual dissemination of a sexual act or intimate parts.

(b) A person commits sexual exploitation via non-consensual dissemination of a sexual act or intimate parts when he or she:

(1) intentionally disseminates an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed; and

(2) the person knows or should have known the other person has not consented to the dissemination.

(c) Exemptions. The following activities are exempt from the provisions of this Section.

(1) The intentional dissemination … made under a criminal investigation that is otherwise lawful.

(2) The intentional dissemination … for the purpose of, or in connection with, the reporting of unlawful conduct.

(3) The intentional dissemination … where the images involve voluntary exposure in public or commercial settings.

(4) The intentional dissemination … when the dissemination serves a lawful public purpose.

It is a class four felony: the penalty is from one to three years in prison.

Danielle Citron is of the opinion that a revenge-porn statute should “only punish individuals who knowingly and maliciously invade another’s privacy and trust.” The Illinois statute does not do so.

It has a “public purpose” exception to satisfy the Weiner-picture fetishists, but a public-purpose exception doesn’t save an otherwise-unconstitutional statute. Professor Neil Richards argues that the power to decide whether speech is legitimate, is the power to censor.

Under this, as under the Arizona statute that has been put on hold in U.S. District Court, innocent baby pictures would be felonious.

Carrie Goldberg likes it.

So let’s run through the First Amendment analysis:

Does it restrict speech? Yes: dissemination of an image is speech.

Is the restriction content-based? Yes: the image must be of an identifiable person engaged in a sexual act or with intimate parts exposed. So it violates the Grumpy-Cat Rule. So it’s presumptively unconstitutional.

To be upheld it has to pass the categorical test applied by the Supreme Court in Stevens and Alvarez. Under that test, a substantial amount of the forbidden speech must not be protected. Protected speech is all speech that doesn’t fall into a category of historically unprotected speech.

All categories of historically unprotected speech have not necessarily been recognized by the Supreme Court yet. But the categories so far recognized are:

  • Advocacy intended, and likely, to incite imminent lawless action;
  • [Distribution of] obscenity;
  • Defamation;
  • Speech integral to [non-speech] criminal conduct;
  • So-called “fighting words”;
  • Child pornography;
  • Fraud;
  • True threats; and
  • Speech presenting some grave and imminent threat the government has the power to prevent.

Some of the speech forbidden by the Illinois statute might incidentally be unprotected—it might be obscenity or child pornography—but there is no recognized category that includes the bulk of speech forbidden by section 5/11-46.

So to uphold the statute a court would have to recognize a new category of unprotected speech that covered at least almost all of the speech forbidden by the statute. I’ve discussed what that means here; the short version is that it’s hard to see what category this speech might fit into that wouldn’t also cover a great deal of speech that benefits society. We’ll see what the pro-criminalization folks propose.

 

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2014.21: How to Ask for Advice

Sarah “Bennett’s Brain Emeritus” Wood of the Harris County PD’s Office is the queen of all things mentorly. After the Harris County Criminal Lawyers Association had tried for years to create a functioning mentorship program it was Sarah who created the Second-Chair Program, which has been cranking out better-trained criminal-defense lawyers for at least six years. Sarah also runs the PD’s internship program and the Future Appointed Counsel Training Program (FACT), which connects Gideon’s Promise-trained young lawyers with experienced mentors for a two-year stint.

One component of the Harris County criminal bar’s mentorship regimen is monthly brainstorming sessions, also organized by Sarah. We’ll gather in the ready room on the seventh floor of the courthouse at lunchtime, HCCLA will order in food, and people will share their case issues and ask for advice from more-experienced lawyers.

These sessions are often frustrating for the more-experienced lawyers. Having given some thought to what makes them so, I’ve got some advice to offer those seeking advice.

First, and most importantly, before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker (free to Texas lawyers through the State Bar) or even Google Scholar.

Second, before you ask for advice know your facts inside and out. Be ready to answer questions about them. Not knowing your facts wastes your mentors’ time as well. How are we supposed to help you if you can’t tell us who the car was registered to?

Third, when you ask for advice, explain what you think the problem is (“how do I suppress the dope?”). Then explain what work you’ve already done to find the answer (“I searched CaseMaker for cases involving searches of personal property incident to arrest post-Arizona v. Gant“). Then—and only then—explain the facts.

Inexperienced lawyers usually turn this sequence around backwards, and start explaining the facts first. This is a cultural impulse, I think: when we are tested in school our teachers give us the fact pattern first and then ask questions about it. But our teachers know what facts are relevant.

If you are not the one doing the testing, giving the facts first is terribly inefficient because you don’t necessarily know what facts are important and the people who are trying to help you have no idea what facts to listen for. If you put the facts first you will waste your mentors’ time with rabbit trails, and you will leave things out so that they will have to circle back after you’ve finally gotten to your explanation of what you think the problem is.

If you start with the problem, when you get to the facts the mentors can discard those that are irrelevant and can ask pointed questions to flesh out those that you have omitted. They can also find other defenses that you haven’t thought of—often younger lawyers will fail to spot the issues—but that’s secondary.

The same rule applies for potential clients asking lawyers for help: explain the problem (or what you think it is) first, then explain the facts that you think are important.

If you’re doing this in writing, more paragraph breaks are better than fewer. It is harder to extract information from run-on paragraphs than from bullet points. If you’re doing it orally, slow down for the same reason.

Because the easier you make it to help you, the more people will be able—and want—to help you.

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2015.20: Listen!

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

I have written about listening here multiple times. Among other posts, I wrote in 2007 about listening, attentiveness, and mindfulness; in 2008 about the value of listening; and in 2009 about how not listening was the worst voir dire advice ever. Listening is explicit in two of my rules for better jury selection—Rule Two (The Blind Date Rule) and Rule Fifteen (The Bat Rule) and implicit in the rest.

It’s an important and interesting topic. Both psychodrama-director training and improvisational-theater training make me a better listener.

So I was thrilled to discover, via the Twitter Machine, Jennifer Romig’s Listen Like a Lawyer blog. It’s not really about listening like a lawyer, of course, since lawyers don’t listen very well, but about lawyers listening better.

Romig’s posts are lengthy, substantive, and link-rich. She’s writing for lawyers about things that lawyers need to know. (Before every trial I’m going to ask all of my juniors to read her recent post on second-chair listening.) This is the practical blawgosphere at its best. More, please.

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2015.19: Get It?

Murray Newman is a witness in Ex Parte Temple. The writ hearing has been going on sporadically for several weeks. One of the issues is whether Kelly Siegler concealed exculpatory information from the defense. Newman testified early, and Siegler has been on the witness stand for at least four days (orthogonally: here and here are the transcripts of Siegler’s first two days of testimony).

So when Newman wrote this post, around his doctor and a cancer scare, I commented:

I was wondering when you were going to write about Siegler and the temple case. Thank you.

Murray’s commenters don’t get it.

I believe that my commenters come from a different tranche of the bell curve.

Prove me right.

 

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2015.18: Texas Law Shield and Second Call Defense

One of my gun-totin’ libertarian friends asked me:

What do you think about those legal insurance funds for CHL holders?
For example:

http://www.texaslawshield.com/

http://www.secondcalldefense.org/

Any good? Worth it? Or no opinion?

I have different issues with the two companies.

Texas Law Shield is not “insurance,” but rather “a licensed legal services company.” It purports to provide “legal representation by an attorney”—an attorney, not the attorney of your choice—for any contract holder in good standing who has a “use of a firearm:”

Any incident where the Legal Service Contract Holder either discharges or displays a firearm for the purpose of using the firearm as a weapon to stop a threat, whether the Legal Service Contract Holder pulls the trigger and discharges the firearm or not. This term does not include taking the firearm to a location that is prohibited by federal, state, or local law, negligent or unintended discharges, or negligent or unintended displays.

So if you’re not using your firearm to stop a threat, you are not covered. Often in a gun case the central issue is whether you are using your firearm to stop a threat.

The contract holder is not covered if he is carrying somewhere that he is not allowed to:

In order for Legal Service Contract Holder to receive the benefits described in this Legal Services Contract, at the time of a use of a firearm incident occurs, the Legal Service Contract Holder must be in legal possession of a firearm, and at the time of the use of a firearm the Legal Service Contract Holder must be in a location where Legal Services Contract Holder could legally possess a firearm.

That doesn’t seem unreasonable, but again, whether the accused was in legal possession of a firearm is often a central question in a gun case.

Here’s the big exclusion:

This Legal Service Contract specifically excludes legal representation for the Legal Service Contract Holder’s use of a firearm, if at the time of the use of the firearm; Legal Service Contract Holder was in the commission of any crime using their firearm for which justification under state law is inapplicable.

What does “for which justification under state law is inapplicable” mean? Does it mean that your commission of the crime was unjustified, or that justification was not legally available as a defense?

Who decides whether you were committing a gun crime, and when?

I see three obvious possibilities (there may be more to the contract than linked to from the “legalese” button here, but that is what my analysis is built on):

First, Texas Law Shield could decide before the representation whether the otherwise-covered use of a firearm was a violation of the law. It’d be in the company’s interest to decide that it wasn’t, so that they wouldn’t have to pay some lawyer to show up for you. Recall the Stanford case, in which the insurer came in to court to prove that its insured had committed money laundering so that it wouldn’t have to pay up.

If Texas Law Shield looks at the case (newspaper reports? the offense report? the charging instrument) and concludes that you were not justified in using your weapon, they can deny coverage, leaving you to hire a lawyer. Depending on who that lawyer is and who Texas Law Shield’s lawyer would have been, you might be better off, but the money you had sent to Texas Law Shield would have been wasted.

Second, Texas Law Shield could decide during the representation, after “a” lawyer had started representing you, whether the firearm use was a crime. The lawyer would be in a quandary: he would know he wasn’t getting paid, but he would have an obligation to you. A good lawyer would take this as a cheap lesson and keep doing his best, but there are lawyers out there who would seek to withdraw because of Texas Law Shield’s decision not to pay any more, and there are lawyers out there who would not put their full energy into the defense of a case on which they weren’t being paid. There would be a conflict of interest between the lawyer and you, which the lawyer wasn’t anticipating when she took the case.

In either of those first two scenarios, you could then sue Texas Law Shield, alleging that its failure to provide you with a defense was in bad faith, but you’d have an uphill battle (because they had a good-faith reason to believe, when they denied coverage, that you were guilty), and potential compensatory damages would be limited, probably to the amount that Texas Law Shield would have paid “a” lawyer to represent you. If Texas Law Shield denied coverage and you were convicted, the rule in Peeler v. Hughes and Luce would keep you from recovering for that incidental (and yet not incidental) damage.

Third, Texas Law Shield could decide after you were convicted (because sometimes innocent people get convicted) that the jury was right, and that you had committed a crime. Because that jury verdict is pretty conclusive evidence, for legal purposes, that you had.

By that time you would already have received all of the help from “a” lawyer that Texas Law Shield was willing to provide you, and either they would have paid her (in which case they could, perhaps, sue you) or would not have (in which case she could, perhaps, sue you). At that point, though, a civil lawsuit is likely the least of your worries.

Even if you were acquitted, Texas Law Shield could deny coverage—if they refused to pay for a lawyer and you sued them, they could defend themselves by proving by a preponderance of the evidence in civil court that you had committed a crime with your gun.

Which of these three scenarios is the worst case for the toter of guns is an open question: depending on who “a” lawyer is, no lawyer at all might be a better deal. Gun toters are usually nearer the right edge than the left edge of the Nolan Chart; not the sort of people who would choose government-employed defense counsel over private counsel of their choice. Yet they’ll pay Texas Gun Shield for the services of some unspecified lawyer in the unlikely event that they get in trouble with their guns.

Texas LawShield looks to me like a sucker’s bet. You’d be better-off making friends with a good criminal-defense lawyer, sending him a good bottle of bourbon now and then, than sending your money to a company that, in the highly unlikely event you get in trouble with your gun, might—or might not—provide you with a lawyer of unknown provenance.

You can’t actually see all of the terms of Second Call Defense’s contract without giving them a credit card number and signing up (no thank you), but it appears that Second Call Defense is insurance: for $240 a year, they say, you get civil-suit defense, $50k in civil liability coverage, $50k in “accidental shooting protection” (whatever that is), and $50k in criminal-defense reimbursement, as well as bail money, $5k cash up front for a lawyer, and various other baubles.

While it is highly unlikely that you’ll need it, Second Call Defense’s $50,000 will pay for a first-class defense on most any gun crime. If you had a one-in-208 chance of using that coverage—Second Call would be an even-money bet. Still, it’s insurance, which can be a good bet, despite the numerical odds, when the possible loss is catastrophic. If there is no way you could afford $50,000 for a defense, you might pay $240 a year to insure against a less than one-in-208 chance of that $150,000 loss.

But if “reimbursement” means reimbursement, Second Call Defense won’t pay for the criminal-defense lawyer up front. They’ll pay you back after you’ve spent the money. But you’ll still have to come up with that money yourself. And if you have that money to spend, it makes more sense to self-insure than to pay for insurance for a minuscule risk.

If you don’t have that $50,000 to spend, you’re not getting that $50,000 lawyer with or without Second Call Defense’s reimbursement: reimbursement is not something you can spend on a lawyer. If you come to me and say, “I don’t have the money now, but I have Second Call Defense, and they’ll pay,” I’ll first ask to see your contract with Second Call Defense. And if “reimbursement” means reimbursement I’ll politely decline unless you can come up with the money elsewhere.

Because aside from the fact that you can’t be reimbursed for something you haven’t paid, I’ll see this in the Second Call Defense agreement: “The Membership Services WILL NOT be provided if your ownership or use of a firearm violates applicable law.” On those terms, I wouldn’t—in fact I couldn’t—agree to represent you in hopes of Second Call Defense’s reimbursement money. I wouldn’t because I get paid up front; I couldn’t because taking on a criminal case in the anticipation of getting paid after I win is taking the case on a contingent fee, and that would be unethical. (Suppose that I beat the State on an aggravated assault case down to an unlawfully-carrying-a-weapon plea. Is it in your best interest for you to take it? Is it in my best interest?)

Both Texas Gun Shield and Second Call Defense have an inherent conflict of interest: if you lose your criminal case, they don’t have to pay for your defense, so they benefit if you lose. Why anyone would trust a company with such a conflict to choose his lawyer for him is baffling to me.

Second Call Defense is—it appears—better on this front because it gives you the power to choose your own lawyer. It is insurance that pays for your lawyer of choice, but it only helps you if you have the money to pay for your lawyer of choice in the first place, and even then only if that lawyer beats your case. Just a more expensive sucker’s bet.

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2015.17: F**king Samir Chopra

My fellow Delhi-walla Samir Chopra writes, in a post entitled “Mark Bennett is a Sexist Tool”:

Over at the blog Defending People, Mark Bennett, a Houston-based criminal defense lawyer, writes a long, technical, closely argued post critiquing Danielle Citron‘s putative

“Putative.” Which means that Chopra is at least partly on the right page: there is some doubt about Citron’s rebuttals.

rebuttals of arguments–based on First Amendment concerns–against her proposals for ‘revenge porn’ laws.  Bennett titles his post ‘F**ing Danielle Citron’ and at the end signs off thusly:

P.S. “F**king” is fisking. Sicko.

That was very witty. Chuckle, guffaw, chortle, snicker. I hope you got it and appreciated the joke, otherwise, Bennett is going to think you are one square, stodgy dude. I’m playing it safe, and issuing a few preemptive cackles.

Dad always warned me that most people wouldn’t get my sense of humor. It has never bothered me. I hope it doesn’t bother Chopra too much that he’s a humorless twerp.

It’s no surprise,

That’s a shame. I aim to be surprising. That or non-sexist. Sometimes both.

of course, that a male

One.

blogger–a brave defender of free speech!

I am guessing here, but I think, because of the exclamation point, that maybe this was meant to be facetious.

I wouldn’t say “brave”—I’m not facing censorship by statute (yet) nor by fear—but I have dedicated a good chunk of my personal and professional life over the past half-decade to defending free speech, mostly pro bono, with some realized success and more to come. I would bet that nobody in the U.S. freed more people who had been imprisoned for their speech last year than I did.

–should have chosen such a title and chosen to express his wit in such puerile fashion. He is, after all, writing a post that aims to ‘fisk’, to ‘take apart’ arguments made by a woman.

Two.

So why not invoke, for the amusement and entertainment of his male readers¹, the kind of aggressive language many men

Three.

academic or otherwise–like to attach to the art and practice of argumentation. Like, “I tore him a new asshole”, “I wiped the floor with him”, “I shut him the fuck up” and many others. So if you’re refuting someone’s arguments, you’re fucking them.

“Tore him a new asshole” is fucking? “Wiped the floor with him” is fucking? “Shut him the fuck up” is fucking? To Chopra all aggression is fucking.

I’ve apparently been doing them (both aggression and fucking) wrong.

Argumentation is a contact sport, innit?

Contact sports are fucking? It seems like I really should have been better at football.

Such language is almost exactly the precise converse of another kind

Does “almost exactly the precise converse” of a kind of language mean something?

that men

Four.

are inordinately fond of. As I wrote in a post last year commenting on a “culture, local and global, of sexual harassment, ogling, [and] innuendo”:

Quoting yourself as authority: always persuasive.

It’s not clear what the intent of this next bit is, other than to impress the reader with the breadth of Chopra’s thinking: not only do men describe argument as sex, but they describe sex as conquest and domination! Look what a good feminist ally I am!

The first premise—that men describe argument as sex—is questionable. It’s unproven here by Chopra, and in fact unillustrated unless we want to go along with “I wiped the floor with him” being sexual.

“[M]en

Five.

when talking about sex, cannot drop

If Chopra himself were able to drop it, he would not write that men “cannot.” I wonder: is it the Y-chromosome that makes it impossible for him to drop it, or does his penis physically get in the way? Maybe it’s just the guys that Chopra hangs out with. Perhaps Chopra’s experience with men talking about sex is somewhat limited.

I want to make one thing very clear: I am not volunteering.

Also, Chopra should eavesdrop sometime on gay men talking about sex. Or on women talking about sex. Ho-lee shit.

the language of conquest and domination, of conflating sex and violence (‘Dude, I fucked the shit out of her’ or ‘I was banging her all night’), who imagine sex to be a variant of rough-and-tumble sport (‘scoring touchdowns’),

Men cannot drop the language of conquest and domination when talking about sex. Chopra is a man. Therefore, Socrates is mortal.

Look, I’m not going to judge Chopra for the way he talks about sex with his bros. But he paints with a very broad brush. And apparently the reader is supposed to draw some sort of conclusion from this—he started with “As I wrote.”

So here’s the conclusion I draw: Chopra is deeply conflicted. He simply “cannot drop” the language of conquest and domination. Yet he so wants to be accepted by his sisters in the academy that he must condemn it. He is filled by self-loathing.

who associate weakness with womanhood (‘Don’t be a pussy’ ‘Man up’ ‘Put your pants on’).”

O, if only there were somewhere Chopra could look for examples of such sexist language actually written by me. Somewhere like a blog where I have written a War-and-Peace-and-a-half.

 In his self-exalted mind,

This is the “you think you’re better than me” argument, which I only hear from people who are afraid that I am in fact better than them. So thanks, Chopra, but I’m not accepting it. I’m no better than you.

Smarter, taller, better-looking, better-adjusted, better-dressed, a better writer, more successful, more comfortable in my own skin, less eager for the approval of others? Sure. But never “better.”

Bennett intended to ‘eviscerate’ the arguments mounted by Citron;

Why is “eviscerate” in quotes? Did I use that word? I don’t think I did.

More importantly, evisceration is sex? Sicko.

Look back at the form of the argument:

  • Bennett uses “f**king” in a blog post title knowing that people like me will take it as “fucking.”
  • Men use aggression metaphors, which are really fucking metaphors, for argument.
  • Men cannot help but use aggression metaphors for sex.
  • Therefore Bennett is a sexist tool.

It may well be that I am a sexist tool, but I remain unconvinced.

I invite Chopra to use the search box for examples of my being a sexist tool. He may find me calling my old friend Kurt Kerns a “Big Fucking Pussy,” and seize on that because he is humorless, becauase he has trouble with irony, and because that’s it: one word out of 900,000+.

he was really going to lower the boom;

I am pretty sure that’s a nautical metaphor, not a sexual one, sicko.

Citron was going to get some rough rhetorical treatment. So why not analogize–in that dazzlingly witty style above–that forensic analysis to, you know, sex?

Thing is, if I mean “fucking” I write “fucking.” I don’t write “f**king” unless I want foul-minded people like Chopra to think I mean “fucking” but I really don’t mean “fucking.”*

I apparently could have used just about any verb there, and Chopra would think I was talking about sex: “Touchdowning Danielle Citron.”

And for even better measure, why not stick your interlocutor’s name in the title?

Why not, indeed? Citron is public about her support of revenge-porn criminalization, one of a few people widely and by choice associated with this brave new world of speech crime.

Citron does write about the harassment of women online, by–among other things–hate speech and revenge porn,  so it would only be appropriate that her name feature in such a title.

Plus, it’s her arguments, published under her name, that I’m responding to. So there is that.

I bet that would make her squirm just a bit.

I’d take that bet. I doubt that Citron cares.

But it’s nice of Chopra to come to her rescue, whether she needs it or not. Nothing sexist about that. Nope.

Why not just let your dick flag flutter proudly?

Is that the dick flag that is attached to the boom I’m lowering? Just curious. I proudly fly my asshole flag all the time. Can I fly both at once? Should my dick flag really be fluttering like this? No, seriously, I think I might need to see a doctor.

I’m sure some of his male

Six.

readers–perhaps some drenched-in-testosterone

Does Chopra have something against testosterone? He may. It would go along with his self-loathing about how he dirty-talks his bros.

male

Seven.

law school students and bloggers–are passing around Bennett’s post and chuckling over how ‘Bennett gave Citron a good bitch-slapping.’

Why on earth would he imagine that? They say that all criticism is autobiographical. Is that the way Chopra talks?

(Incidentally, the tweet that led me to Bennett’s post said that it ‘just filets open and guts pernicious Danielle Citron+MaryAnne Franks revenge porn laws.’)

“Filet open and gut” is sex talk to Chopra?

I would definitely not want to be this sicko’s boyfriend or girlfriend.

I’ve given up being amazed or appalled by the sexism of smart men.

Eight.

Male

Nine.

power is well-entrenched and defiant, but it is embodied in some very insecure folks.

I won’t argue with “insecure.” Only losers are not a little insecure. “Very” is a bit harsh, though. That hurts my feelings.

Note #1: I doubt Bennett thought any of his female

Number of times that Chopra treated gender as a factor in his blog post: ten.

Number of times that I treated gender as a factor in my blog post: zero.

Number of instances that Chopra can find of actual sexism in posts on this blog: zero.

Isn’t that interesting?

When the only tool you have is feminist orthodoxy, every problem looks like a nail.

Can I say “nail”?

Nail nail nail nail nail.

Sorry. Didn’t mean to make Chopra hot.

readers would find that title amusing.

Bennett hopes that his readers aren’t fragile flowers like Chopra. Indeed, Bennett suspects that his female readers did find the title amusing—doubly so now—because, unlike Chopra, Bennett doesn’t think that all females think in lockstep.

WTH. Why’d I start talking about myself in the third person?

Truth is, I don’t see Citron any differently than I see any intellectually dishonest male zealot. Some of the most formidable lawyers I know (not Citron) are female, and I aspire not to treat them differently because of their gender despite (and to spite) the sexism inherent in the system. I think I do a good job of that.

PS: Bennett’s arguments are well-worth a read. Even sexist tools can be good First Amendment analysts.

That’s the money shot: In conclusion, none of this personal rebuke was an actual argumentum ad hominem: despite being a sexist tool, Bennett is a good First Amendment analyst.

Chopra seems to be an incoherent thinker and a poor rhetorician, but I am sure that as a philosophy professor he is a competent judge of First Amendment analysis.

P.S. and * This time, and this time only, “f**king” is “fucking”: the participial adjective.

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2015.16: Another Proposed Texas Revenge-Porn Statute

Texas HB496:

Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE
VISUAL MATERIAL. (a) In this section:
(1) “Intimate relationship” means a marriage relationship or a relationship of a romantic or intimate nature between two persons.
(2) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(3) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person;
(3) knows or should have known that the depicted person has not consented to the disclosure; and
(4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.
(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person.
(d) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.
(f) An offense under this section is a Class A misdemeanor.
(g) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

This is a tighter statute than HB101, which would forbid intentionally disclosing visual material depicting another person engaged in sexual conduct if the actor was negligent about whether the depicted person has not consented to the disclosure.

Under HB496, an intimate partner would be liable for disclosing visual material showing sexual conduct only if she disclosed it electronically, was negligent about whether the complainant had consented, and disclosed it with the intent to cause harm. “Harm” is not defined, but some examples are given.

The bill would create criminal liability for website owners, but not for other third parties. So if an intimate partner gave prints to her friend who then scanned them and posted them online neither the partner (who did not disclose them electronically) nor the partner’s friend (who was not in an intimate relationship with the complainant) is liable (though the State might be able to cobble together an argument for party liability). Expect this to change if the statute goes any farther.

It’s also a class A misdemeanor, which is sure not to satisfy the bloodthirsty criminalizers. Expect this also to change.

Subsection (c), dealing with website owner liability is not written very well. It says: “A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person.” What is the “character and content” of the visual material? It must depict another person engaged in sexual conduct, and the website owner must know that, but must she know that he did not consent to disclosure?

It fails the Weiner test (sharing the congressman’s dick pics would be punishable), but how does the bill stand up to constitutional scrutiny?

It forbids disclosure of images based on their content—depicting another person engaged in sexual conduct—so it is a content-based restriction on speech. It is presumptively unconstitutional unless the speech it forbids (or at least the vast majority of that speech) falls into a category of historically unprotected speech. The speech—erotic pictures disclosed without consent with the intent to cause harm—falls into none of the already-recognized categories of unprotected speech, so unless the Supreme Court recognizes another category of unprotected speech it fails the Stevens test.

That’s a big “unless.” See the discussion of categories of unprotected speech here.

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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.

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2015.14: Je Suis Charlie, Mais Pas Français

In France if you print cartoons inciting discrimination and hatred against Muslims, you may be murdered by a band of armed thugs. This is censorship.

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In France if you print cartoons inciting discrimination or hatred against Muslims, you may be arrested, tried by a court, and imprisoned for a year. Only if you resist can you be murdered by a band of armed thugs. This is civilization.

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