Lying Law Prof Mary Anne Franks Comes to Town

Thanks to the Houston Chronicle, Cyber Civil Rights Initiative activist Mary Anne Franks got to bring her special brand of authoritarianism to my neck of the woods:

Franks dismissed claims by some groups, like American Civil Liberties Union, that criminal penalties for posting the photos infringes on behavior protected by the First Amendment.

“This isn’t protected speech, at least under any theory I can think of,” she said.

Rogers called me after talking to Franks, and I was quoted directly following her:

Other lawyers disagree, including Houston attorney Mark Bennett, who said the proposed laws, including the ones written by Franks, are unconstitutional.

Had I known exactly what Franks had told Brian Rogers, I would have said, “any idiot with a law degree knows the theory under which this is protected speech. If Franks can’t think of a theory under which revenge porn is protected speech, she’s incompetent.” But I don’t think she’s incompetent going on. I think she’s lying to Rogers. She does have a history, after all, of being untruthful about these matters.

Franks knows why revenge porn is protected speech: because speech is protected unless it fits into a recognized category of unprotected speech. She has made arguments for squeezing revenge porn into one category or another; I have shown why those arguments are specious. She has not responded, though she has claimed to have done so. She has never had to defend her thesis.

In their article Franks and Danielle Citron write, “Nonetheless, First Amendment doctrine holds that not all forms of speech is subject to strict scrutiny.” They provide no cite, and I contend that this is inaccurate: that all content-based speech restrictions are subject to strict scrutiny, and that they satisfy such scrutiny only if the government can show that no substantial amount of speech they restrict is unprotected. I look forward to seeing their cite for their proposition in the completed article.

They also misquote Eugene Volokh:

In his view, non-consensual pornography lacks First Amendment value as a historical matter and should be understood as categorically unprotected as obscenity.

Here’s what Volokh actually said:

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

That’s could, not should. Revenge porn could be treated as obscenity just as “consensual depictions of nudity” could be. I don’t think we want to open that particular door.

It may be that the Supreme Court will eventually recognize revenge porn as being in some category of unprotected speech. Citron thinks that an element of harm may be required for revenge porn statutes to withstand overbreadth challenges; Franks disagrees.

I’m with Citron ((!)): the chances that a revenge-porn criminal statute will pass muster are better if the statute requires proof of harm—or, in my view even better, intent to cause harm. We would probably disagree on what “harm” is; I think there’s a modern tendency to treat hurt feelings and embarrassment as harm, and I would require an intent to cause more severe emotional distress than that.

I doubt that Franks is stupid. What endgame could she possibly envision, trying to pass statutes that even her coauthor thinks have First Amendment issues? Five years (at most) under her regime, before the massive rollbacks when the first such statute hits the Supreme Court? I don’t see anyone being helped by that but her.

Lying Law Prof Lies.

Me, October 24, 2013, here:

Professor Franks, when I say that you haven’t addressed counterarguments, I mean that. I’m sorry that you find it tedious that you be expected to address why, for example, in light of Stevens’s unambiguous rejection of a balancing test, you continue to insist that some sort of balancing test applies.

As for your working paper, I’ve yet to see any counter to my point-by-point analysis of it, here: http://blog.bennettandbennett.com/2013/10/are-statutes-criminalizing-revenge-porn-constitutional.html

Mary Anne Franks, October 24, 2013, here:

Sadly, Mr. Bennett, I do not have endless amounts of time to read everything that people write about me or my ideas.

Franks, November 25, 2013, commenting on Josh Blackmon’s blog (Blackmon had linked to my critique of Franks’s rationalization of her proposed statute):

Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work: http://www.concurringopinions…..

I don’t know how to interpret Franks’s new claim that she responded to my critique, after snottily denying a month ago that she could be bothered, as anything other than an out-and-out lie. ((Is falsus in unum, falsus in omnibus a fallacious argumentum ad hominem?)) So it’s through that prism that I invite you to view the rest of her quotes in Blackmon’s post, drawn from this U.S. News post:

The proposed law has not be finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

Franks-to-English translation: “I am drafting the bill myself, and I haven’t found a sponsor who’s willing to sign on to my victimocratic newthink. Don’t they know that I can call them misogynists?”

“We’re going back and forth and actually writing the law with them,” said Franks, a board member of the Cyber Civil Rights Initiative, which was founded by “revenge porn” victim Holly Jacobs.

Franks-to-English translation: “I’m trying to write something that is not so clearly unconstitutional and destructive of freedom of speech on the Internet that I can get a member of Congress to put her name on it. That’s turning out to be a much higher bar than I would have thought. I keep trying, but nobody seems interested. They must all either be confused, or be threatened sexists.”

“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”

“Section 230 trumps any state criminal law, so a lot of companies can’t be touched by state criminal laws. And that is so upsetting to me that I’m willing to destroy the Internet ecosystem to undo it. Yes, I’d cut a great road through the law to get after the Devil.”

“The impact [of a federal law] for victims would be immediate,” Franks said. “If it became a federal criminal law that you can’t engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations.”

“Don’t think about the collateral consequences. Think only about the victims. Never mind that this would effectively shut down the Internet.”

“Hopefully,” she said, “we would develop a similar take-down notice regime that we see in a copyright context, which means that anytime a victim becomes aware that [their] picture is on one of these websites without their consent, [they] can notify the website, [they] can notify Google, [they] could notify all the people inadvertently helping the image get shown… that this is nonconsensual material and needs to be taken down.”

“Yes, I’m talking about a criminal statute, intended to put people in jail, but I’m going to make it seem more benign by talking about it like copyright.”

Franks says she’s seeking input on the federal legislation from EFF, the American Civil Liberties Union, large companies and others likely to have concerns.

“I sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to my personal email. I sent similar emails to people connected with the ACLU, Apple, and Verizon. I take it by their silence that they don’t disapprove. Because while I don’t have endless time to read the drivel people write about my ideas, I am important, and am entitled to a response.”

Gov. Jerry Brown, D-Calif., signed into law his state’s ban on “revenge porn” Oct. 1, inspiring a wave of proposals elsewhere. Self-shot photos are not covered by the California law and victims must prove emotional distress. Franks says she’s working with a California legislator to reverse the caveats, and says she’s helping legislators in seven other states write bills.

“Strangely, it’s much easier to find people who are not confused and are not threatened sexists in statehouses than in the U.S. Congress. The people must elect a higher quality of representative to serve in their state capitals than to serve in D.C.”

Rep. Jackie Speier, D-Calif., and Sen. Barbara Boxer, D-Calif., publicly expressed interest in a federal law, Franks said, but neither is the forthcoming bill’s sponsor.

“I didn’t say that they expressed interest in a federal revenge-porn law, now did I? As long as I don’t claim that someone is a sponsor I can keep trying to find one.”

This is not really a new phenomenon, but the phenomenon of victims being brave enough to come forward is new and hard for the mainstream public to ignore,” she said. “We’re in the middle of that momentum and this is the best time we could possibly do it. That being said, there are some pretty powerful forces on the other side who are going to be raising objections to this – so it’s anyone’s guess who is going to win out.”

“This phenomenon is more than a year old. We’re in the middle of a moral panic, and this is the best time we could get bad legislation passed. That being said, the First Amendment is a pretty powerful force on the other side, as is reason. I’m pretty much betting my professional future on this, so I’m going to hedge my bet and make an excuse now in case I eventually fail. So if my proposed statutes all go down in First-Amendment flames, remember, it’s not because I have stupid ideas that I can’t support with legal reasoning. It’s that there are pretty powerful forces on the other side.

“Because being a victim is better than being right.”

Revenge Porn: More Made-Up First Amendment Law

Mary Anne Franks is still inventing First Amendment law in the cause of her political crusade to get her proposed statute outlawing revenge porn outlawed:

PrometheeFeu, I do disagree with you, but much more importantly, the Supreme Court disagrees with you. The Court has never held that speech that has zero political, newsworthy, artistic, or scientific value receives First Amendment protection – and certainly not full First Amendment protection. Speech, by the mere virtue of being speech, does not receive First Amendment protection by default. Factor in that the speech in question here is sexually explicit, of purely private interest, and has devastating secondary effects – that’s speech with zero positive value and a great deal of negative value. There’s no Supreme Court precedent for protecting that. To the contrary, the Court has made it clear that such forms of speech “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky v. New Hampshire)

For a case in which the Supreme Court held that speech with zero political, newsworthy, artistic, or scientific value receives First Amendment protection, we need look no further than 2010’s U.S. v. StevensStevens was about depictions of animal cruelty, valueless speech if there is such a thing. In that case the Court rejected, in no uncertain terms, the proposition that there is a balancing test for the criminalization of speech:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “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.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).

To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “`of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'” R.A.V. (quoting Chaplinsky). In New York v. Ferber we noted that within these categories of unprotected speech, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck,” id. The Government derives its proposed test from these descriptions in our precedents. See Brief for United States 12-13.

But such descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.

So where Franks sees a balancing test in Chaplinsky, today’s Court does not. Contrary to Franks’s foot-stamping assertion, speech is protected by default. Speech is protected unless it is within a category of speech that is historically unprotected. Stevens again:

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. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

Franks will not address the categorical approach taken by the modern Supreme Court in Stevens. She will not because revenge porn does not fit into any category of speech that has been described by the Court as historically protected. To admit that would be to admit that she has been wrong all along; that current Supreme Court precedent does not permit what she would have state legislatures to do.

Franks is not acting as a neutral, but as an advocate for a position. Unfortunately, when she presents herself as a “law professor” laypeople assume that she is neutral, that she is knowledgeable about the subject matter, and that she is right. In this instance, none of those assumptions are correct.

It might be that the Supreme Court will someday recognize a category of unprotected speech encompassing revenge porn. But convincing the Supreme Court to recognize a new category of unprotected speech will be a very different—and much more difficult—battle than Franks is selling to state legislatures.

Is New Jersey’s Revenge-Porn Statute Constitutional?

In Are Statutes Criminalizing Revenge Porn Constitutional? I considered Mary Anne Franks’s proposed statute aimed at revenge porn, and concluded that lower courts considering the constitutionality of the statute will be constrained by current Supreme Court precedent to find the statute unconstitutional.

At least three states—New Jersey, California, and Texas—have statutes that would criminalize revenge porn. I’ve discussed the unconstitutionality of Texas’s improper-photography statute before, and California’s statute is newer, so let’s turn our attention first to New Jersey’s third-degree-invasion-of-privacy statute.

Here’s the relevant portion:

(c) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

d.     It is an affirmative defense to a crime under this section that:

(1)     the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c., and

(2)     the actor acted with a lawful purpose.

New Jersey’s statute comes with a loophole big enough to drive a truck through: Continue reading

Are Statutes Criminalizing Revenge Porn Constitutional?

There’s a movement afoot to pass statutes outlawing “revenge porn”—the malicious publication of images of intimate partners. Here’s the proposed state statute, drawn up by Florida law prof Mary Anne Franks:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.
(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.
(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

The question arises: Will such statutes pass Constitutional muster?

[Tl;dr: Not under current Supreme Court precedent. But there’s a lot more to it, so read it.] Continue reading

Six Ways to Screw Up Your Persuasive Writing

In support of her attempt to limit speech to protect women from revenge porn, Mary Anne Franks, who teaches family law, criminal law, and criminal procedure at the University of Miami, demonstrates, via Concurring Opinions, some of the hazards of single-issue advocacy, accidentally providing some compelling negative rhetorical lessons, demonstrating to the world six things not to do when you’re trying to persuade:

    • Overstate your case: “[T]his kind of conduct is an act of sexual use without consent, that is, a form of sexual abuse.”

The thing about laws restricting speech is that speech is treated differently than conduct. Franks can stamp her foot and insist that revenge porn is sexual abuse, but saying it doesn’t make it so.

    • Misstate the law: “Right now, only two states, New Jersey and California, currently treat non-consensual pornography as a crime in itself.”

Texas’s improper photography statute treats non-consensual pornography as a crime in itself: “A person commits an offense if the person…transmits a visual image of another…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person.” ((I argue here that the statute is overbroad.)) I’ll bet Franks missed other states’ statutes.

    • Make handwaving generalizations: “The First Amendment doesn’t protect threats, obscenity, child pornography, and a very long list of other things.”

In fact, the list of other speech unprotected by the First Amendment is quite short.

In her working paper on the subject (PDF), Franks lists the categories of speech that she thinks are unprotected: “stalking, harassment, true threats, child pornography, incitement, obscenity, fighting words, libel, fraud, expression directly related to criminal conduct, or discrimination.” For this she cites, in footnote 31, U.S. v. Stevens.
Stevens mentions “obscenity…defamation…fraud…incitement…speech integral to criminal conduct,” and child pornography. Stevens does not mention “harassment,” nor does it mention discrimination mentioned in the context of unprotected speech, and much discriminatory speech is clearly protected. ((Franks can call her detractors misogynists, and they have no recourse.)) I don’t believe that this law professor’s misrepresentation of Supreme Court First Amendment precedent is negligent.

There are arguments that other categories of speech—for example, harassment and violations of privacy—should be unprotected; these arguments have never been accepted by the U.S. Supreme Court. In order to uphold Franks’s proposed statute, the Supreme Court would have to create a new category of unprotected speech—speech violative of privacy. I’m not saying it couldn’t happen, but it hasn’t happened yet, and the last time the Court had an opportunity to create a new category of unprotected speech, in U.S. v. Stevens, it declined.

    • Demonize disagreement: “I think resistance to these laws can arise from a variety of factors. Some people – including some lawyers, much to my surprise – are just uneducated about the First Amendment and really seem to think that it protects all forms of expression.… But then there’s a whole category of people who aren’t confused at all – let’s call this the ‘threatened sexist’ category.”

So if you don’t agree with Franks, you are either ignorant or a threatened sexist. ((By Franks’s reasoning, since I am fighting Texas’s online-solicitation-of-a-minor statute, I must favor child abuse.)) I know I am supposed to be impressed by Franks’s CV, but the inability to see the other side of the argument except in condescending or offensive terms—is usually the sign of a second-rate mind and a third-rate lawyer. She must be a really hard worker.

    • Use false analogies: “Presumably these people also believe that if a woman has sex with one man, she has given that man the right to invite all of his friends into the bedroom to have sex with her too.”

Nonsense unworthy of response. The basic problem here, I suspect, is that for purposes of her political crusade, Franks doesn’t want speech to be different from conduct, but it is different.

  • Lie: “One New York lawyer/blogger was so freaked out by the law I wrote that he wrote an entire post about it that didn’t contain a single argument against it – only the incredibly juvenile and tasteless insinuation that I must be working on this issue because I was a victim of this conduct myself.”

This being the Internet, you can read the post to which she’s passive-aggressively referring here, and judge for yourself the truth of her description.

I have strong feelings about protecting kids. I have strong feelings about protecting women from abuse. Those strong feelings are trumped by my strong feelings about the First Amendment, as they should be—even odious speech needs protection—but I’m willing to consider arguments for restricting this particularly odious speech.

In her working  paper, Franks suggests five justifications for her revenge-porn law. They range from interesting (“publication of private facts”) to risible (“obscenity”) to dangerous (“matter of purely private concern”). It would be interesting to see the arguments fleshed out by someone interested in the law, rather than in a political movement or a vanity project. That’s not what we’re getting from Franks. ((Here‘s Marc Randazza’s analysis:

I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.

Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.))

My advice to Franks’s students, should any wander by here: don’t follow her example. It may work in the academy; it may persuade dimwitted legislators; but in the world of real advocacy you’ll get eaten alive.

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