In Revenge Pornography and First Amendment Exceptions, to be published in the Emory Law Journal, Northwestern law prof Andrew M. Koppelman says (PDF) what I’ve been saying all along: revenge-porn statutes
restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue.
While praising Danielle Citron’s model revenge-porn statute and negging Mary Anne Franks’s (“I worry,” Koppelman writes, “that Franks’s statute may be overbroad”; ((By “overbroad” Koppelman presumably means “even broader than I would allow,” rather than “overbroad under current First Amendment law, which he concedes both Citron’s and Franks’s model statutes to be.)) this will be the harshest criticism Franks has received from within academic circles), and noting that revenge porn does not fit into any recognized category of unprotected speech, Koppelman writes that “There is, and should be, a presumption that such a statute is unconstitutional” ((None of Koppelman’s legal conclusions will surprise readers of this blog, and this is how things should end in every court but the highest.)) before launching himself from scholarship to editorial:
Free speech law goes wrong when it declares that the presumption cannot be overcome.
Koppelman’s philosophical thesis is that the Court should add a new category of unprotected speech. He supports his thesis with his reading of John Stuart Mill.
Koppelman’s philosophical argument is unexceptional. I have no quibbles with it, but Koppelman’s prescription is light on the law.
First, Koppelman’s proposes a thinly-disguised balancing test of the sort explicitly rejected in Stevens. He says “it misdescribes the problem to say that these harms are to be balanced against the imperatives of the liberal political order.” But that’s a straw man: the Stevens court did not reject as “startling and dangerous” the proposition that the value of speech should be balanced against the imperatives of the liberal political order. Rather, the Court rejected the 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.
It is inescapable that Koppelman’s philosophical judgment — that we ought to be able to protect people from the unwanted disclosure of intimate photos that they have privately shared — is based on the low value of the speech against its societal costs. His philosophical argument is a legal nullity.
Forbye, decent people might agree that revenge porn is bad, and decent people who are also authoritarians ((Bear with me here.)) might agree that the state oughta do something. But the judgment of whether the Supreme Court should recognize another category of unprotected speech depends — this really should go without saying — on what the category is. If the proposed category of unprotected speech is “nude pictures,” so that all nude pictures will be unprotected, then the Court should not recognize that category.
The problem of advocating for a new category of unprotected speech is one of unforeseen consequences. If you have no idea what the category is, you have no idea what else it’s going to render unprotected.
Koppelman recognizes the problem:
That leads us to a lawyer’s question: can the category of unprotected speech be crafted with sufficient precision that clear notice is given as to which speech is protected and which is unprotected? Categories of low value speech must be “well-defined and narrowly limited.” That responds to familiar concerns of “chilling effect” and “slippery slope.” If, however, a category of unprotected speech can be crafted with enough precision, then exceptions to ordinary free speech principles, even the prohibition of viewpoint discrimination, can be consistent with the broader purposes of the system of freedom of expression.
Even explicitly recognizing that he is unable to answer the question ((Yes, it’s a lawyer’s question. Leave the answering of it to the lawyers, okay?)) of whether a narrow-enough category could be crafted, Koppelman blithely recommends that something be done. ((Maybe in response to Koppelman’s article Franks and Citron will propose some exception, but until now they’ve been so busy pretending that some already-recognized exception will save their baby that they haven’t even tried.)) Why does Koppelman go to the trouble of finding a philosophical reason that revenge porn is bad — I mean really bad — and that the Supreme Court oughta recognize a categorical exception, without proposing a category? ((I discuss the problem of defining such a category here. Scroll down to “So how would we….”)) Easy: he’s gertruding. ((Please upvote the Urban Dictionary entry.)) Having called Franks’s and Citron’s revenge-porn babies unconstitutionally ugly, he throws them a little bone of philosophy with no legal meat on it because he doesn’t want to be called a misogynist.
The takeaway for practitioners, legislators, and judges from Koppelman’s article is that revenge-porn statutes — like Texas Penal Code section 21.16 — are unconstitutional under current First Amendment law, which is what I’ve been saying here, Cassandra-like, for years.