Legal Developments in Revenge Porn: An Interview with Mary Anne Franks

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41 Responses

  1. Quick admin note: Trolling or harassing comments will be zapped on sight. Consider yourselves on notice.

  2. Orin Kerr says:

    Maybe I just missed this, but can you add some links to different proposed statutory texts? It’s hard to know what to make of the proposed statutes — or to speculate about the motives of those who oppose them — without first reading the statutory language.

  3. Mary Anne Franks says:

    Hi Orin, we’re working on putting in links, but in the meantime you can read my model statutes in the short document “Criminalizing Revenge Porn” on my SSRN page (also available on http://www.endrevengeporn.org/?page_id=240).

    AP, as I said in a slight different context above, saying it doesn’t make it so. But maybe Scott Greenfield will give you a cookie.

    For those interested in what some actual First Amendment scholars think about the New York bill I helped write, see Pete Brush’s article in Law360 (behind a paywall, unfortunately, http://www.law360.com/articles/479052/1st-amendment-poses-hurdle-for-ny-revenge-porn-bills). Here’s a sample:

    “But, perhaps more importantly, the bill backed by Franks — which is making the rounds in Albany and gaining dozens of co-sponsors, though it hasn’t officially been published yet — takes a careful approach toward defining the kind of conduct it seeks to punish. The bill she favors creates a crime of “intentionally and knowingly” disclosing images when the person who shared the images had a reasonable expectation of privacy.

    Especially crucial, according to privacy expert Neil Richards, a professor of law at Washington University in St. Louis, is the portion of that bill that stipulates “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.”

    If that language becomes law, Richards said, it will take away the ability of a lawyer to help a client beat a criminal charge on free-speech grounds by arguing that, in sharing the image in the first place, the complainant waived any expectation of privacy.

    “Written that way, it does a nice job of balancing the important personal interests at stake with the First Amendment. The First Amendment is strong, powerful and important — but it’s not absolute,” Richards said.”

  4. Joe says:

    Recent coverage: http://rhrealitycheck.org/article/2013/10/08/when-bitter-breakups-and-digital-photography-meet-what-to-teach-our-kids-about-revenge-porn/

    There are people who stamp their feet and insist that non-consensual pornography is free speech, but saying it doesn’t make it so.

    “stamp their feet” sounds a bit dismissive … “pornography” is free speech, including if it is in some fashion “non-consensual.” If someone writes about a sexual experience, e.g., it might be “pornography,” and it is protected, even if the other party doesn’t want the information shared.

    This is where the “Carefully drafted laws” are involved, including the type of penalty (e.g., civil torts can be more likely to be upheld) and narrowly drawn (a picture of someone in a bathing suit might not get you in trouble while nude pictures or video can).

  5. Orin Kerr says:

    Thanks, Mary. For interested readers, here is the model state law:

    *********
    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, the reporting of unlawful conduct, or legal proceedings.
    2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.
    *****

    It’s an interesting statute. A few crim-law-prof interpretive questions come to mind:

    1) Would this statute be violated if the person in the picture is not identifiable? Does that constitute an “image of another person”?

    2) The text lists a mental state for “discloses,” but no mental state is listed for the other elements, and in particular “under circumstances in which the person has a reasonable expectation of privacy, commits a crime.” What’s the mens rea required with respect to the element of “under circumstances in which the person has a reasonable expectation of privacy, commits a crime”?

    3) I’d be interested in knowing more about how you would want courts to apply the reasonable expectation of privacy test here. In Fourth Amendment law, if A secretly records B while B knows that A is there, A has not violated B’s reasonable expectation of privacy by making the recording. See United States v. White (1971). Do you mean to incorporate that test, or do you have a different version of the reasonable expectation of privacy test in mind? It seems like you have something else in mind, in part because that standard would only prohibit being a “peeping tom” and not taking a picture with someone’s consent. I assume that’s not what you have in mind, asthe language says “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.”

    4) Would prohibited acts of disclosure include printing out images on a person’s own printer? Or making a second electronic copy, such as by transferring images from a cell phone to a laptop? Is that “manufacturing” the image? See, e.g., People v. Hill, 715 N.W.2d 301 (Mich. Ct. App. 2006), (holding that making a copy of an image of child pornography constitutes the crime of “making” child pornography).

    5) Imagine A and B are in a relationship and take a dirty picture of together that B stores on her home computer. The next day, B is talking to her roommate C and she tells C about how they took the dirty picture. C asks B if she can see the picture. B agrees, and shows the picture to C. Is that a crime?

  6. Excellent questions, Orin. I think you’re on to something in general, which is that the combination of technology and social interaction here create wrinkles like nothing else that law has ever dealt with, and so the response needs to take into account that complexity. And you’ve highlighted some good questions here.

    One that I’d add to the list, in the fine-tuning process, is the possibility of accidental disclosure.

    For instance, suppose my girlfriend e-mails me a nude photo, with the caption “for your eyes only.” And I store this photo on my laptop; and the next day in class, because I am a technological klutz, I accidentally click on that photo instead of on my powerpoint slides, and beam my girlfriend’s nude photo onto the projector for the whole class. (Note: NOT based on any actual events!)

    That seems to be a facial breach of the statute, and maybe it should be. It does seem to be a different type of act than the evil folks who run these revenge-porn websites.

    Or, remember the recent instances of accidental tweets of nude self-pics? I’m not convinced these are entirely accidental, because they generate lots of publicity for the people involved. But Vanessa Hudgins, Hayley Williams, and a few others have recently accidentally tweeted nude pics that they meant to send to a partner.

    Taking the claim at face value, let’s assume it’s actually an accident. Except that, instead of a self-pic only, Hayley Williams had accidentally tweeted (instead of DMing) a picture of the couple _together_ — “here’s a sexy picture of _us_ from that last vacation.”

    I don’t know the answer to these, and I’d be really interested in Mary Anne’s take, Danielle’s, or other folks’.

    As a general matter, I think this kind of fine tuning is exactly the conversation we need to be having. They’re important and helpful questions. And they’re a lot more interesting than the war-on-men claims or First Amendment histrionics that many folks fall back on.

  7. Mary Anne Franks says:

    Orin and Kaimi, these are great questions, thank you. I don’t have complete (or even very good) answers for all of them, and I would be very interested to know what others think about these issues.

    Here are some of my initial thoughts: Kaimi, I think that the requirement that the disclosure be “intentional” means that the statute wouldn’t apply to the projector hypothetical or to the “meant to DM but tweeted instead” hypothetical (this of course raises questions about how to prove that a disclosure was “intentional” or “accidental,” but such is life). One interesting issue raised by both of those hypotheticals is whether subsequent disclosure by other parties could be actionable under the statute. That is, after an initial unintentional disclosure of an image, a third party distributes it (someone takes a cellphone pic of the projector image and posts it online, or re-tweets the pic meant for DM). If the third party knew (and this relates to some of Orin’s questions) that the initial disclosure was accidental, that is, made without the consent of the subject depicted, I think the subsequent disclosure would be prohibited by the statute.

    Orin, I’ll start with your last question because it just came up in the discussions Danielle and I had recently with the drafters of the Maryland bill. This was/is tricky, because if “disclose” is defined too broadly, scenarios like the one you offered would be criminalized, but if it were defined too narrowly, scenarios like Steubenville might not be (that is, when a large number of individuals crowd around a cellphone image, sometimes in front of the victim herself). We settled on a definition of “disclose” that tried to walk the line between the two: to “transfer, publish, distribute, circulate, disseminate, exhibit, advertise or offer.” But there may well be better ways to address this line-drawing problem.

    Okay, the other questions:

    1. I think the answer is no, if by “identifiable” you mean “can be recognized” (as opposed to being linked to identifying information such as name, social security number, etc. – images without this kind of information should still be covered under the statute ). If there is no way to tell by looking at the image who the person is, I think the statute does not apply.

    2. My intuition is that the mens rea with regard whether the person depicted has a REP would be knowing, but I’d like to hear what others think about this.

    3. I do have a different REP test in mind from what the Court uses in US v. White. I think the Court has generally done a pretty terrible job with REP in the Fourth Amendment context, so I wouldn’t want to import those mistakes here. I’d prefer to import some of the insights of privacy tort law.

    4. This is a very helpful question. My intuition is that a person printing out or transferring to another medium an image that he obtained with consent does not count as disclosure so long as the image is only for that person’s personal use. That means, perhaps, that we could sharpen the definition of “disclosure” to mean transmitting, posting, distributing, etc. images “so that they will be/are likely to be viewed by other parties” or something along those lines.

  8. With regard to mens rea issues above, am I right to believe there are no cases here that include something less than knowledge and purpose or direct intention, say, recklessness or gross negligence (or dolus eventualis)? It seems a couple of the hypotheticals above could involve something between simple negligence or an “accident” and robust intention, particularly in situations or circumstances in which individuals using these technologies are quite familiar with them (hence can possess knowledge of possible risks entailed with their use).

  9. Mary Anne Franks says:

    Hi Patrick, I think there may well be cases that fall between negligent and intentional, and that we’ll be likely to see more of them as more laws are passed prohibiting intentional conduct. It makes me wonder if it might be best to make the mens rea “intentional or reckless.”

  10. Joe says:

    Would the lady who exposed Wiener’s wiener been prosecuted under this law?

  11. Mary Anne Franks says:

    Joe, I think she could be, but I don’t think it would be successful. I think Weiner would have a difficult time proving that he and Sydney Leathers were in a “private, confidential relationship” or that he had an otherwise reasonable expectation of privacy, especially given his status as a public figure/official. The two were not married or dating, and in fact had never met in person.

    She would almost certainly not be prosecuted under the Maryland bill that Danielle and I worked on, which states that the law does not apply to “acts that serve a bona fide and legitimate scientific, educational, governmental, artistic, or other similar newsworthy purpose.” Given that Weiner’s extramarital sexting was plausibly a matter of public interest (in my view, only because he had made public assurances that he was no longer engaging in such conduct), the photos could easily be regarded as serving a “newsworthy purpose.”

    I haven’t included a “newsworthiness” exception to my model statute even though I recognize that such an exception might be necessary to ensure its passage in some states. The reason for this is that I’m not convinced that there should be such an exception. The public’s right to know the fact that Weiner engaged in this conduct is not, in my view, the same thing as the public’s right to view the sexually explicit images of such conduct. That being said, it is of course also true that such images can serve as proof of the conduct, so a law that allows people to be prosecuted for producing such images might have an undesirable chilling effect.

    My hesiation is not so much for cases like Weiner’s, but for cases that involve someone other than the individual whose conduct might be newsworthy. Let’s imagine that back in the 90s, Linda Tripp obtained a videotape showing Bill Clinton and Monica Lewinsky having sex. As proof of an extramarital affair that the President claimed not to be having, this tape would be newsworthy. But it seems to me that this would not justify splashing the tape all over the Internet, given that it is not only Clinton’s conduct that would be exposed, but also Monica Lewinsky’s. I’m not entirely comfortable with the idea that a private figure’s (or even a public figure’s) most intimate activity could lawfully be made viewable (not knowable – viewable) to the general public simply because there is something newsworthy about the other person participating in it.

  12. Brian L. Frye says:

    Is the statute intended to cover drawings or paintings? A literal reading of a “reproduction of the image of another person” would seem to include non-photographic images.

  13. Orin Kerr says:

    Mary Anne,

    Interesting, thanks for the exchange. Responding to your numbered points 1-4 using the same numbers:

    1) I think that makes sense, and I think you probably should make that explicit. The child pornography laws have some helpful language here in the definition of morphed child pornography. 18 U.S.C. 2256(9)

    2) I suppose knowing makes sense, although it may depend on your version of the REP test (see below).

    3) I think the question of what REP test you have in mind is really essential, as it gets to what the statute actually covers. I think it’s important to nail down what you mean by that. I wonder if perhaps the phrase “reasonable expectation of privacy” isn’t the right phrase. Everyone loves that phrase: It’s gloriously vague and yet sounds comforting, which is probably why the Supreme Court uses it. But as you know in the Fourth Amendment setting, what it actually means can be really different from what the words might seem at first blush.

    For example, using my 4th-Amendment-focused brain, I would have thought that the Weiner/Leathers example is clearly a violation of your model statute: Weiner took the picture in the privacy of his home, where the expectation of privacy is generally deemed at its high point. Further, I would think that the language, “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,” would apply: Weiner was sending the image in confidence with the assumption it would not be exposed. I suppose the underlying question is what is a “private, confidential relationship,” and more broadly, what is a “relationship” under your statute. Is a one-night stand a “relationship”? Online flirting? I think it would be hard to define a precise level of seriousness or reciprocity needed to trigger a “relationship,” especially for a criminal statute.

    4. On the definition of “discloses,” one possibility would be to use “distributes” instead? That’s a well known concept in criminal law, as you know, and it seems to cover the cases you have in mind. “Distributes” should cover all cases of transferred possession, including passive transferred possession. See, e.g., United States v. Shaffer, 472 F3d 1219 (10th Cir. 2007). It would presumably exclude merely showing the image to another, though, so I’m not sure if you want to include that, too.

  14. Joey Fishkin says:

    It seems like an important project to establish the legal principle that there is such a thing as a reasonable expectation of privacy within a relationship (i.e. I am disclosing X within this relationship but not to the whole world). I think the law has really lagged behind society in recognizing this idea, and this lagging is a lot of what is making it difficult for the law to do anything about revenge porn.

    It seems to me that this principle has some potential ramifications outside the domain that the statute is aiming at. For instance, sometimes the law of discovery today holds that when a person has disclosed something to one other person, the “reasonable expectation of privacy” is gone and now it becomes discoverable in litigation. I recognize that this statute only applies to sexually explicit images. But for instance, in a messy divorce proceeding, would a “reasonable expectation of privacy” shield from discovery the images on a cheating spouse’s phone that show evidence of the affair? (That is, privacy within the relationship between the cheating spouse and his or her lover.)

    Also, a very small & unrelated point. In the model statute pasted above, I wonder if there should perhaps be a comma between “contact” and “without.” It says “or who is engaged in an act of sexual contact without that person’s consent” — a comma would help make clear that you’re referring to disclosure without consent, not necessarily contact without consent.

  15. Joe says:

    (comments 5 and 12 are made by different people)

  16. Mary Anne Franks says:

    Brian, no, the statute is not intended to cover non-photographic images, and I’ve advised every drafter I’ve worked with that they need to make this very clear (usually easy to do by referencing other definitions in the state’s code).

    Thanks, Orin, for the 2256 language and for the “distributes” suggestion. I’ll need to think more with Danielle about whether it’s acceptable to lose the ability to reach situations where the actor shows the image to a large number of people without transferring or reproducing it. And thank you, Joey Fishkin, for the comma fix!

    On to the REP issues that Orin and Joey raise. Wisconsin has just announced its proposed legislation on the issue, which I helped them draft. Their statute, unlike New York’s, includes no expectation of privacy language. I personally prefer WI’s because I find REP so ambiguous (WI based their language on a mix of a much earlier version of my model statute, which didn’t include REP, and the NJ law), but I worry that it will make it harder for the bill to pass. I think, in my perfect world, that the law should just flat-out prohibit the distribution of any sexually explicit images of another identifiable person without that person’s explicit consent, subject only to certain enumerated exceptions (law enforcement, reporting of unlawful activity or matters relating to legitimate public concern, and the reproduction of commercial images that were themselves created/distributed with consent).

    (a) Whoever, without the consent of the person represented, reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a representation of a nude or partially nude person or of a person engaging in sexually explicit conduct is guilty of a Class A misdemeanor. The consent of the person represented to the capture of the representation or to the possession of the representation by the actor is not a defense to a violation of this subsection.

    (b) This subsection does not apply to any of the following:

    1. The parent, guardian, or legal custodian of the person represented if the representation does not violate s. 948.05 or 948.12 and the reproduction,
    distribution, exhibition, publication, transmission, or other dissemination is not for commercial purposes.
    2. A law enforcement officer or agent acting in his or her official capacity in connection with the investigation or prosecution of a crime.
    3. A person who is not the actor and who reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates the representation to a law enforcement officer or agency for the purpose of reporting a crime or for the purpose of assisting a law enforcement officer or agent in an investigation or prosecution of a crime.

    (c) This subsection does not apply if the person represented consented to the reproduction, distribution, exhibition, publication, transmission, or other dissemination of the representation for commercial purposes.

  17. prometheefeu says:

    Mary Ann Franks,

    Glad to see you’ve changed your model statute since your stint as a guest blogger here and walked away from requiring that consent be in writing and added an exception for people who are naked in public.

    I am a bit uncertain why you limit this to a private or confidential relationship though. Let’s say I agree to let a stranger take a naked picture of myself without consenting to its distribution. Your model statute does not appear to cover that.

    What do you think is the mens rea requirement regarding the “without consent” element of the offense? The hypo I am thinking of is Mallory takes a nude picture of Alice and then without Alice’s consent posts the picture on a messaging board while impersonating Alice. Bob comes along and downloads the picture reasonably believing that Alice has uploaded the picture herself. (And therefore consented to the distribution) Under your model statute, it looks like Bob is still liable.

  18. Ken Arromdee says:

    They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.

    You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?

  19. Mary Anne Franks says:

    prometheefeu, it may very well be the case that consent will still need to be in writing (it’s going to be difficult to prove otherwise), but I decided that the statute didn’t have to address that explicitly. The exception for people naked in public is really just legislative overkill, as a person who is voluntarily naked in public would have a difficult time making the case that he had a reasonable expectation of privacy.

    The model statute doesn’t limit protection to a private or confidential relationship. If you read the text, it applies whenever a person has a reasonable expectation of privacy. It simply additionally makes clear that a person who consents to an image being taken within such a relationship retains an expectation of privacy beyond that relationship. Also, as I mentioned in a previous comment, the Wisconsin statute (posted above), which I also helped draft, does not limit protection to exchanges in a relationship, or even include the “reasonable expectation of privacy” language. It’s another possible way of approaching the issue.

    I personally think that an individual needs to have actual consent before he distributes sexually explicit material of another person, subject to the kinds of exceptions stated in the model statute. An individual should not simply assume that he can take an explicit photo from one context and transfer it to another. The law should be as simple here as it should be for rape: by acting without clear consent, you open yourself to the possibility of prosecution. Otherwise, every defendant can claim that he reasonably believed the subject “would have consented” or somehow “implied consent.” In any event, I don’t think Bob’s actions in your hypothetical are reasonable. Believing someone who says on a message board that “I am Alice and here are some explicit photos of me,” given how easy and common it is for harassers and stalkers to attack victims in just this way, and using that as an excuse to distribute Alice’s picture (merely downloading may be different) is at least negligent, if not reckless. It’s not as though we’re dealing with situations where action is required on Bob’s part. If in doubt, don’t do it. As with rape, if someone is not sure his or her actions are desired, he or she needs to make sure or just stop. The worst thing that will happen to a person who doesn’t do anything is that he doesn’t get to distribute an explicit photo; the worst thing that will happen if he proceeds without clear consent is that he will have subjected someone to the humiliation, stalking, and harassment that comes with the non-consensual distribution of explicit photos.

    But that’s my personal view, which may not be shared by legislators or their constituents. My goal in advising legislators is to help them draft the strongest version of a law that they agree with and think they can get passed. Different states have different concerns, and as the difference between the proposed New York and Wisconsin bills shows, they address them in their own ways. So they may well not agree with my view of the consent issue, and in those cases, I will work with their views.

    Ken Arromdee, yes, as someone who teaches criminal procedure, I am quite familiar with the third party doctrine. As I’m sure the majority of readers understood, I wasn’t talking about the highly questionable doctrine the government would invoke to justify its invasive practices – I was talking about the fact that most people (perhaps you are an exception) do not accept it as a justification. There has been, in case you’ve missed it, tremendous outcry from the general public, privacy watchdogs, civil liberties groups, and legal scholars over government spying. What they object to is the idea that consent to sharing information with one party in one context can be taken as consent to sharing this information with other parties in other contexts. My point was that anyone who understands this objection (or understands why we have laws against identity theft or confidentiality laws) should understand what is wrong with non-consensual pornography and why it is not “protected expression.”

  20. PrometheeFeu says:

    Mary Ann Franks,

    Thanks for taking the time to respond.

    I think arguments can be made either way on whether Bob’s belief that the pictures were posted with consent is negligent or reckless or neither. Ultimately it is going to be very fact-dependent. I think we can come up with a reasonable fact pattern where Bob’s belief was reasonable. (Bob knows Alice and has seen Alice upload nude pictures of herself on multiple occasions in the past to that same message board. The pictures were posted using Alice’s account, etc…) My point was that your model statute by imposing strict liability vis-a-vis consent casts too wide a net.

    I also think there is a big difference with rape with regard to mens rea. If you are having sex with somebody, you can always confirm consent by asking the person you are having sex with. There is no opportunity for a third party to interpose themselves and trick you into believing consent was obtained. Not so with an explicit image on a website. A third party could, without too much difficulty, share explicit pictures and trick viewers into reasonably but wrongly believing consent was obtained to distribute.

    I think without a men rea requirement, such a statute will have a disturbing chilling effect on speech.

  21. Mary Anne Franks says:

    I agree that many cases are going to be heavily fact-dependent. I don’t agree that strict liability with regard to consent chills any legitimate speech, but as I said, I understand that some people think differently. I personally just don’t find it convincing that there is any constitutionally protected interest in distributing sexually explicit images without clear consent (subject to the exceptions provided in the statute and possibly a very narrow exception for public interest, as Danielle Citron and I have developed for Maryland’s proposed bill).

    It isn’t true that a third party cannot trick a person into believing that another person consents to sexual activity. We’ve seen far too many recent cases that involve exactly this: an angry ex (or rejected suitor) impersonates the victim and invites sexual contact, even going so far in some cases as to offer assurances that “I may struggle and say no, but that’s all part of the fantasy.” In the Jebidiah Stipe/Ty McDowell rape case, McDowell tried to defend himself by saying he was tricked by Stipe into believing that the victim consented. He was found guilty, and rightly so. It is not relevant how burdensome it might be to verify actual consent to a sex act given how severe the consequences can be if one doesn’t. This is true in the non-consensual pornography cases as well. The people who are so deeply invested in distributing non-commercial sexually explicit pictures should be the first ones agitating for making the consent verification process as efficient and accurate as possible – perhaps by developing a written consent form regime. But they cannot claim that they have an unfettered right to distribute these (non-political, non-newsworthy, non-artistic, non-scientific) images without explicit consent given the devastation caused to individuals when their most intimate moments are transformed into spectacles for public amusement.

  22. Kaimi says:

    PrometheeFeu, do you really think that mens rea is going to be an issue in most of the cases?

    “I uploaded my ex’s nude pics to EvilRevengePorn.com with the caption ‘hey guyz lookit the tits on this bitch who I used to date’ because … I’m interested in art!”

    I mean, seriously, how many non-evil rationales are there for that kind of behavior?

  23. PrometheeFeu says:

    Mary Anne Franks, (Sorry, I just realized I’ve been mispelling your name)

    I think we may simply have to disagree on the effect of strict liability with regard to lack of consent. I don’t believe that speech needs to be political, newsworthy, artistic or scientific to be legitimate and worthy of protection. I believe you are here casting too broad a net, though your intentions may be good.

    You are of course correct that a third party can trick a person into believing that another person consents to sexual activity. My point however is that a strict liability regime burdens legitimate sexual activity much less than it burdens the exchange of explicit imagery. If you wish to verify that your sexual partner is consenting to the act, you can simply ask them as they are in front of you and at that point, nobody is interposed. To the contrary, it is very burdensome to become completely sure that a person has consented to an image of themselves being shared. Especially since a person posting a nude of themselves may be quite wisely reluctant to share their name, address or phone number. That is why I think a strict liability regimen makes sense in rape laws, but not revenge porn statutes. But I see we disagree.

    Kaimi,

    I recommend you read what I already wrote here and you may be able to see where my concerns are. (Hint: It has nothing to do with what you are talking about)

  24. Mary Anne Franks says:

    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)

  25. Respectfully, Professor Franks, you seem to lack an understanding of First-Amendment law. In fact, speech does receive First-Amendment protection by default, unless the speech falls into some recognized narrowly defined category of historically unprotected speech.

    I recommend that you read U.S. v. Stevens (http://scholar.google.com/scholar_case?case=85657697512539256), in which the Court explicitly refused to adopt a balancing test and instead followed a categorical approach in overturning a statute that forbade depictions of animal cruelty.

  26. Ken White says:

    To follow up on Mr. Bennett’s comment, some of the particular language of Stevens is instructive. First, the 8-1 majority of the court on balancing:

    ” 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).”

    Second, the Court specifically rejected the proposition that existing categories were a result of balancing alone: “When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis.”

    Third,the Court refused to create a new ad hoc categorical exclusion at the request of the government:

    “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. 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.”

  27. Respectfully, Mr. Bennett, having taught and published on the First Amendment, I am quite familiar with First Amendment doctrine. You seem to be basing your assertion that I “lack an understanding of First Amendment doctrine” on the mere fact that I do not share your interpretation of it. But as anyone actually familiar with First Amendment doctrine knows, there is plenty of room for reasonable disagreement about what the Supreme Court has said, should say, and will say about complex free speech issues.

    Your comment about categories of “historically unprotected speech” is particularly odd, as it overlooks the fairly obvious fact that these categories were not unprotected before the Court said they were. If the Court actually took this view, it would never have found any exceptions to the First Amendment at all.

    In any event, there is no particular reason to assume that non-consensual pornography is a new category of speech. You and Ken White cite Stevens as though it were the only First Amendment case that exists. Presumably this is because you both believe that the closest analogy to non-consensual pornography is animal cruelty videos, but why you think this is unclear. Professor Eugene Volokh, whom I assume you would both agree knows something about the First Amendment, thinks that non-consensual pornography easily fits into the category of obscenity. I may not necessarily agree, but it is certainly a plausible view. Non-consensual pornography may also be a form of “sexually derogatory ‘fighting words,’” as Scalia put it in RAV v. St. Paul. Sure, it’s dicta, but it’s dicta from Scalia, of all people, and it may well be the key to the way the Court will frame the issue of non-consensual pornography if faced with it.

    For that matter, non-consensual pornography could be considered akin to credit card theft or violations of doctor-patient confidentiality. I very much doubt that either of you thinks that laws regulating those types of conduct violate the First Amendment, or that a waiter has a constitutionally protected right to use the credit card you gave him to pay for your dinner to go on a personal shopping spree.

    I don’t claim that the model laws I have written, or the laws I have helped draft in various states, are perfect. Very few laws are. But they are the ongoing product of an open exchange of ideas with knowledgeable individuals. I published early drafts of my work on this very blog and invited comment and critique. I also sent my working paper on the subject to respectd First Amendment scholars for feedback. At every stage of this process I have invited, evaluated, and incorporated feedback from people with First Amendment expertise. You are likely aware of the fact that Prof. Volokh believes that a narrowly crafted statute prohibiting non-consensual pornography would not violate the First Amendment. If you have been following the issue closely, you would also be aware that another First Amendment expert, Prof. Neil Richards, has said that the law I helped write for New York “does a nice job of balancing the important personal interests at stake with the First Amendment. The First Amendment is strong, powerful and important — but it’s not absolute.”

    In other words, there is no battle here between First Amendment advocates and First Amendent opponents. The majority of First Amendment scholars and experts that have expressed views on the issue do not believe that a narrowly crafted law against non-consensual pornography violates the First Amendment. It is entirely possible to both respect the First Amendment and to respect the rights of victims whose lives are destroyed by this abuse. Those who insist that this is not possible do not have justice, equality, or the First Amendment on their side.

  28. Ken White says:

    Stevens is, indeed, just one case. But it is a modern case from the current Court and its continued viability is not in doubt. By contrast, Chaplinsky — on which you rely for broad language — has been narrowed and nibbled away over the decades, and is in doubt. When’s the last time the rule of Chaplinsky was expanded?

    Stevens is apt because, in advocating for laws against revenge porn, you employ broad arguments that Stevens rejects. In fact, you employ gratuitously broad arguments, which is why you get as much dissent as you do.

    I am open to the possibility that a law against some forms of involuntary or revenge porn could be criminalized consistent with the First Amendment. In that I differ from some of my colleagues. However, it’s not clear to me why supporters are using the broadest arguments possible to support them — like, for instance, the balancing argument.

    Unless, of course, the purpose is a broader one — to erode the First Amendment steadily in support of a wider “cyber civil rights” agenda .

  29. Mary Anne Franks says:

    Ken White, I don’t rely on Chaplinsky in my working paper on the subject, nor do Danielle Citron and I rely on it in our forthcoming co-authored piece on the subject. Especially in the latter piece, we take careful stock of the relevant First Amendment cases (old and new), including Stevens and Snyder. I wrote about Chaplinsky here in direct response to a comment that asserted that sexually graphic images of private individuals published without their consent and having no political, scientific, artistic, etc. value receive First Amendment protection by default. I merely pointed out that there is no reason to think that this is true, and Chaplinsky (along with Miller and Snyder) help us see why this is the case. I did not make the opposite claim that all forms of speech are subject to a balancing test. As I have stated many times before, a narrowly crafted statute prohibiting non-consensual pornography can be defended on several different grounds, not just one. I am not particularly concerned about which ground people find most convincing. I think it is more important to note that, given the multiple ways to justify such a statute, the burden is on critics to demonstrate why none of them is convincing.

    So I don’t know which other supporters you are referring to using “the broadest arguments.” Perhaps you mean Prof. Volokh or Prof. Richards, in which case I’d be interested to see why you think they are wrong. Or perhaps you mean the California chapter of the ACLU, which withdrew its objection to the revenge porn bill passed there (not that I’m a fan of this bill). Or the numerous legislators who have sponsored and drafted similar legislation, often with the input of free speech advocacy groups. I certainly can’t account for anyone else’s reasons for supporting this kind of legislation, so if you are critical of them, perhaps you should turn your attention to them.

    Your last sentence, however, suggests that you take the position that the First Amendment and civil rights are incompatible. If that is the case, then it is probably safe to say that we disagree.

  30. Ken White says:

    Professor Franks, your last sentence suggests that there is a consensus on what “civil rights” means. The entire point of my comment is that there is not. There is a consensus about what civil rights laws currently say; that is not what I am referring to. But some visions of what civil rights ought to be created and recognized — for instance, the notion of a civil right to be free of anonymous criticism or insult — would certainly conflict with the First Amendment.

    Also, I am a great admirer of Prof. Volokh, agree he is a preeminent authority on the First Amendment, and confess to making appeals to authority using him myself. However, making appeals to authority, I think it’s helpful to examine what he’s actually said, as opposed to characterizations of what he’s said. See, for instance, here: http://www.volokh.com/2013/04/10/florida-revenge-porn-bill/. For instance, the assertion that he said that revenge porn fits into the obscenity category “easily” appears to be an argumentative gloss. Also, he suggests that “legitimate purpose” exceptions are unconstitutionally vague, which strikes me as persuasive.

  31. Prof. Franks, thank you for your response.

    Your “fairly obvious fact” is not at all obvious to the Supreme Court, according to which speech in historically unprotected categories was unprotected even before those categories were recognized.

    A law against revenge porn might be constitutionally criminalized with the recognition of some previously-unrecognized category of unprotected speech. We likely disagree on our readings of those particular tea leaves.

    I’ve discussed elsewhere the theory that revenge porn fits into one of the existing categories. Suffice it to say here that Prof. Volokh (who hasn’t opined on your proposed statute) groups revenge porn along with “lewd exhibition of the genitals” as something that the Court could find to be historically unprotected obscenity.

    I’ve yet to see Prof. Richards’s legal “First-Amendment balancing” analysis. I look forward to some evenhanded analysis from Professor Volokh, Professor Richards, you, or any other academic.

    Your argument so far rests on out-of-context dicta, flawed analogies (e.g. credit card theft = speech), and unsupported assertions of law, such as “speech…does not receive First Amendment protection by default” and your assertion that erotica, when nonconsensually published, lose all value.

    There is room for disagreement, but society is not served by pretending that revenge-porn statutes don’t face an uphill battle in the appellate courts. Such rhetoric may appeal to legislators and other laypeople, but it is intellectually dishonest, unbecoming of a serious scholar, not to address the counterarguments to your arguments.

    It won’t be the law profs or the legislators briefing and arguing the constitutionality of these statutes. As one who litigates First-Amendment issues, I am going to be cleaning up the mess that legislatures are making for years. I’d rather they got it right in the first place.

    As one who has taught and published on the First Amendment, surely you can do a better job of looking at both sides of the argument.

  32. Mr. Bennett, I’m glad that you recognize that there is room for disagreement. For instance, I would disagree with the characterization of sexually explicit images of people disclosed without their consent as “erotica” as I would disagree with the characterization of rape as “rough sex.” But disagreements are all well and good, and it is really perfectly fine that you do not like these laws. Fortunately, the success of these laws does not rest on my convincing you.

    But the repeated lie that I have not addressed counterarguments is tedious. What you mean to say is that you feel I’m not giving your objections enough attention. I hate to disappoint you, but this will continue to be the case unless you make better arguments.

    After all, nothing is stopping you from making your own arguments about this issue and advancing your own drafts of model laws. I am not the gatekeeper of legislation on this or any other issue. I made the choice to make my work publicly available for comment and critique, but this does not obligate me to respond to every person out there who has an opinion on this subject, much less to agree with him or her. To assert that someone is “intellectually dishonest” and acting in a way “unbecoming to a serious scholar” simply because they disagree with you is, well, certainly reflective of your sense of your own importance and expertise. But I suppose if I were tasked with single-handedly rescuing the First Amendment from the devastation wreaked by revenge porn laws, as you suggest you are, I’d be cranky too.

    I have never claimed that non-consensual pornography laws won’t be challenged. They certainly may be, especially if they are not drafted carefully. The fact that laws may be challenged is not a reason not to draft them – it’s a reason to draft them carefully. Doing nothing is not an option for anyone who is familiar with the severe and often irrevocable harm caused to victims of this conduct.

    I am well aware that Prof. Volokh has not opined about my model statutes, although he was kind enough to read an early version of my working paper and offer detailed feedback. The point of mentioning him, which you and Ken White seem to miss, is that while experts in the field take various positions about WHY narrowly crafted statutes prohibiting non-consensual pornography do not violate the First Amendment, they don’t seem to be in disagreement about WHETHER such statutes would violate the First Amendment. In my view, the latter point is the most important one. The bottom line for me as an activist and legislative advisor (as opposed to as a scholar, because the roles are slightly different) is to draft and support laws that protect victims and comply with the First Amendment.

    Ken White, by all means examine what Prof. Volokh has actually said, including this: “[E]ven 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.”

    And I certainly agree that there is plenty of room for debate about what civil rights do and do not mean. That is exactly why I rejected your blanket assertion that a civil rights agenda necessarily “erodes the First Amendment.”

  33. 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

    Your assertion that photos that are erotica when made lose all value when published without the subject’s consent is a good example of an unsupported assertion. You believe it to be true because you believe it to be true; this is not going to persuade any judge. While I abhor revenge porn, I can imagine cases in which nonconsensually published sexual images might have artistic value, at the very least (“art” being a category encompassing things that many people abhor).

    I do appreciate your admission that you are not concerned with which ground for upholding the proposed statute works. This is what lawyers who practice law call the spaghetti approach: throw a bunch of stuff at the wall and see what sticks. The spaghetti approach doesn’t generally work. In the First-Amendment context in particular the spaghetti approach doesn’t work because the categorical exceptions are narrowly drawn, so that if a statute purports to address more than one category of unprotected speech it is probably overly broad.

    Remember that the challenges to these statutes will be “as written” challenges, so that the horrid conduct of the particular defendants, beyond the elements of the statute will not be part of the appellate record. A revenge-porn statute would have a better chance of success if it tracked the test for some category of unprotected speech. For example, if you want the statute to pass muster as a restriction on a previously unrecognized type of “obscenity,” include at least some of the Miller elements.

    I recognize that you think those of us who will actually be responsible for litigating these issues are only barely worthy of a response. I’ll bother you no more here with tedious practical matters, but I look forward to seeing you and Prof. Citron write something scholarly—rather than politicized—on the subject.

    Best,
    MB

  34. Sadly, Mr. Bennett, I do not have endless amounts of time to read everything that people write about me or my ideas. I also do not have time to review basic principles of reading comprehension or logic with every commenter with an axe to grind. You have your own blog to misstate claims and display a lack of self-reflection (Case in point: “Your assertion that photos that are erotica when made lose all value when published without consent is a good example of an unsupported assertion.” I haven’t made any assertions about photos losing their value through disclosure. One commenter above argued that such images would be protected even if they had no artistic or other value, and I responded specifically to that assertion. Declaring photos to be “erotica when made,” on the other hand, is a very good example of an unsupported assertion.)

    As you well know, this is a controversial subject that provokes all kinds of different reactions in different people. It is hardly surprising that any one approach will fail to convince everyone (although I wonder if you have taken note of the fact that the various state bills I have helped draft are different in interesting ways), and you have made it abundantly clear that I have not convinced you. Fortunately for you, I’m just an untenured professor who was moved by the plight of victims and who wrote a draft statute that some people like. There is no way to tell whether my efforts or the efforts of any of the victims’ advocates will actually take root. My efforts to craft a narrow statute that protects victims of terrible abuse and complies with the First Amendment on multiple grounds may very well fail. I will not regret making the attempt regardless.

    I am sorry to see that you apparently view this issue as some kind of competition between litigators and scholars, or practitioners and professors. I for one have no interest in artificial divisions of that sort (especially given that many people fit into more than one category). I have welcomed and continue to welcome the input of litigators, legislators, professors, advocates, laypeople, scholars, and victims in my efforts to address this harmful conduct. I evaluate this input on the basis of merit, not on the CV of the person offering it.

  35. Professor Franks,

    A very ungracious reply given that I already said I was done here.

  36. I’ve read “When Bad Speech Does Good” (the link that Prof. Wenger gave when describing you as having published on the First Amendment), and while it is well written and thought-provoking, I think it’s overstating your case to say that you have “published on the First Amendment,” if that claim is based on that publication.

    I see now that you have admitted that you are writing as “an activist and legislative advisor” rather than as a scholar. I suppose you think that excuses your rudeness and intellectual dishonesty.

    It’s okay. I am writing as a scholar. I’ve got no axe to grind other than teasing out the truth. If a revenge-porn statute can pass constitutional muster, I’m okay with that; if it doesn’t, I’m okay with that too. This is a purely intellectual exercise, so I decline to meet rudeness with rudeness, nor intellectual dishonesty with intellectual dishonesty, and apologize for any past rudeness.

    Calling photos “erotica when made” is not an assertion but a presumption: presumably at least some revenge-porn complainants have given sexual images to their boyfriends because of the images’ erotic value. Do you seriously question this presumption?

    If you are not saying that such sexual photos lose their value through nonconsensual disclosure, but you are saying that nonconsensually disclosed sexual photos have no value (which I presume you don’t now deny), then you must be saying that sexual photos have no value when made. That, too, is an assertion not supported by the law; in fact it is contrary to the law.

    Regards,
    MB

  37. Mr. Bennett, if you are in fact apologizing for your past rudeness, I accept your apology. I’m sorry if you find my responses to you rude – such delicacy of feeling on your part is surprising given the tone of your comments here – but perhaps you are simply unaccustomed to calm, sustained disagreement.

  38. Confused says:

    This is a genuine question, because I think I must be confused: Mark (and I guess Ken, too), do you think that, after Stevens, there are no more interest-balancing tests in First Amendment law, and that only historically unprotected categories of speech can be regulated? No more time, place, and manner restrictions? No more strict scrutiny? No more commercial speech doctrine?

    If that’s what Stevens really meant, then it was a blockbuster indeed. So far as I can tell, though, it’s the only case on which you’re relying, and its accuracy – and precedential value on that particular point – seems pretty dubious to me, and to others: http://joshblackman.com/blog/2010/04/20/the-first-amendment-and-balancing-tests/ (To be clear, I’m not Josh Blackman.) It’s hard for me to imagine that even the Justices who signed Scalia’s opinion thought that they were sweeping away so much First Amendment doctrine. If they were, then that course just got a hell of a lot easier to teach.

    Prof. Franks might or might not be right about whether her plan satisfies the First Amendment, but it’s hardly extraordinary to suggest that some balancing of interests might be involved.

  39. R.U. Tenured says:

    Professor Franks, if you are, as you say, “just an untenured professor,” perhaps you would be better served submitting papers to journals, teaching, and applying for grants, rather than venturing into these sorts of projects. I appreciate that you are moved to help victims, but I do not see this helping your tenure case. To the contrary, with all due respect, your manner of interaction with Mr. Bennett, Mr. White, and others reflects poorly on you, and is now a permanent record available to anyone with a web browser.

  40. jay says:

    she needs to be raped

  41. Admin says:

    Admin note: We would normally delete threatening comments like this last one. In this case, it is a useful object lesson of some of the kinds of reactions to Professor Franks’ work.