Free Speech: It’s Not That Complicated.


“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.”

The legislature must strike a balance between sexual-privacy rights and the First Amendment.

Because revenge porn does not fall within one of the enumerated categories of unprotected speech under the jurisprudence of the United States Supreme Court, legislators must narrowly craft statutes to avoid infringing on important First Amendment rights.

Applying the analysis of [Thompson], revenge porn likely constitutes protected speech because nonconsensual photography and visual recordings are inherently expressive, and the First Amendment protects their distribution. … This conundrum means that in order to pass constitutional muster, states must draft statutes using the least-restrictive means to achieve the purpose of safeguarding privacy interests and ensure that the statute does not prohibit a substantial amount of protected speech for overbreadth-doctrine purposes.

All four quotes are from Christian Nisttáhuz’s comment, Fifth States of Gray: A Comparative Analysis of “Revenge-Porn” Legislation Throughout the United States and Texas’s Relationship Privacy Act, coming in the winter 2018 issue of the Texas Tech Law Review (vol. 50 no. 2).

Law students, not in a position to recognize mediocre legal talent, often have stars in their eyes for law professors, and might be excused for following them. So I don’t fault Ms. Nisttáhuz for extensively citing the carceral-feminist mediocrities who are pushing revenge-porn criminalization nationwide, especially since it just doesn’t feel right that revenge porn should be constitutionally protected.

And Nisttáhuz gets extra leeway for not using the phrase “essentially intolerable” to justify criminalizing nonconsensual pornography.

But c’mon now. How could anyone type that first quote—from the Supreme Court’s 2010 8–1 U.S. v. Stevens—and then the second quote? Either:

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

or

legislatures must strike a balance between sexual-privacy rights and the First Amendment.

(I think the Supreme Court, and not the carceral mediocrities, got that one right.)

And either:

revenge porn constitutes protected speech

or

statutes can be narrowly crafted to criminalize revenge porn without prohibiting a real and substantial amount of protected speech.

You can’t criminalize protected speech without prohibiting a real and substantial amount of protected speech.

This internal inconsistency is just sloppy. And the best explanation for the sloppiness is incredulity. If you believe that there must be some speech that is simply not worth the First Amendment’s protection, it is just unbelievable that the Supreme Court really meant:

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.

I’ve seen this same incredulity from intermediate appellate judges: How could the Supreme Court possibly have meant what it said in Stevens, and Alvarez, and Reed, and Brown? How could the Court of Criminal Appeals possibly have meant what it said in Lo and Thompson? Surely the Court in Stevens (crush-video case) and Alvarez (stolen honor) wasn’t thinking of revenge porn! And surely the outcome would have been different if it had been!

But it wouldn’t. The Supreme Court really meant what it said.

Suspend your disbelief: it really is that simple


2 responses to “Free Speech: It’s Not That Complicated.”

  1. I guess the one problem I have with your argument is that the definition of “obscenity” has changed so very much since the founding. Porn (revenge or otherwise) would easily fit under an originalist view of the term. While I very much like where first amendment law has reached I must readily admit that it has strayed very far from that root (I do not believe the Alien and Sedition Act would survive the modern court, as an example).

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