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.