Revenge Porn Questions and Answers (Updated)


Dear Mr. Bennett,

I’m writing to follow up on a voice mail I left late yesterday.

I’m a writer with the ABA Journal, the American Bar Association’s member magazine, and I’m writing an article on First Amendment challenges to revenge porn laws. This of course includes your current case for Jordan Jones before the Texas Court of Criminal Appeals. I understand from media reports that you may have other clients with similar situations, which suggests to me that you might have strong opinions on the topic. I’ve also read your opening brief and some of your response briefs, which reinforced that.

Would you be interested in discussing this sometime in the next week? I’d want to ask:

First, can you tell me about your other revenge porn clients? If you feel names are a violation of your confidentiality obligation to your clients, I’m really interested in how many there are and if there are interesting fact patterns in any case.

There are seven or eight others.

Because these challenges are as-written or facial challenges to the statute, the facts are not relevant to the litigation that I’m doing, so I don’t have any reason to know the fact patterns. So I don’t.

-What makes you interested in these cases?

With all due respect, by focusing on the trees of revenge porn, you miss the forest of government assaults on free speech. (This is something that I find journalists, who should be most sensitive to speech restrictions, too often blithely dismiss.)

As well as revenge-porn I have constitutional challenges pending to online-impersonation, harassment (Ogle v. Texas in the U.S. Supreme Court), and fraudulent-use-of-identifying-information statutes, among others.

And I’ve won on “online solicitation of a minor” and “verbal abuse of educators,” getting those statutes held unconstitutional by the high courts of Texas and Georgia respectively.

There are areas of speech that basically everyone agrees should be protected by the First Amendment. There are areas that are quite controversial (“hate speech,” for example). And there are areas that basically everyone agrees should be unprotected.

All of my cases involve speech that basically everyone agrees should be unprotected. If right-thinking people didn’t agree that the speech should be unprotected, the legislature would never have passed the statute.

I am defending such speech because the farther out we keep the boundaries of protected speech, the safer is the speech in controversial areas as well as the speech at the heart of protected speech.

I don’t trust politicians, if given any more power to restrict speech, to use that power responsibly. If we allow the restriction of speech based on “violations of privacy” or “emotional harm” there is no limit to the speech that may be restricted.

Which is all to say that revenge porn is a very small part of the larger fight, which is to protect free speech by defending it at its farthest frontiers.

-Would you be willing to tell me the underlying facts in the Jones case? No appeals court has gone into them and the Smith County trial court does not make its filings available to the public.

The underlying facts are not relevant to the constitutional litigation, so I don’t know them.

Smith County filings are available to the public; you just have to send someone to the courthouse. (I’ve heard that journalists did that sort of thing, once upon a time.)
-You filed brief responses to most of the amicus briefs, which is unusual in my experience. Is there any interesting story behind that?

Most lawyers, including most judges, have a very sketchy idea of First Amendment law, comprising folk wisdom, dimly remembered platitudes, and bad reasoning under the guise of common sense.

I want to minimize the chance that the court will fall for arguments that are incorrect but superficially appealing.
-In your opening brief, you essentially argue that speech expressly intended to cause harm should be protected because the First Amendment is so important.

Okay.

Not only should it be, but it is protected.

For example, under defamation law, harmful speech may only be punished if it is false. Truthful-but-harmful speech is protected.

This struck me as “bad optics” regardless of its truth or falsity.

Okay.

In Ex parte Lo, I argued in my brief, “The U.S. Constitution allows an adult to talk dirty to a child as long as the dirty talk is not obscene as to the child (or otherwise unprotected speech, such as actual solicitation).”

Successfully.

I’m more interested in clearing as much space as possible for free speech than in “optics.”

If I argue, “speech does not become unprotected merely because it is intended to cause harm,” and the court agrees with me, I’ve cut a broad swath, and we aren’t going to be revisiting that question for a long time.

If I argue, “the statute is overbroad because someone can be punished for speech that they don’t know is harmful” (the holding of the Tyler Court) and the court agrees with me, I’m playing whack-a-mole. I’ve killed this iteration of the statute, but the legislature will just pass a version that requires an intent to harm, and we will wind up spending years litigating that.

What’s more, if I make the mealy-mouthed narrow argument, I’m giving the court an opportunity to write dicta that will be troublesome in future cases.

So I’m not going to try to sugar coat it.

We hurt each other with speech all the time. We embarrass and offend each other intentionally.

Investigative journalism is intended to harm its subjects—to harm their reputations, if not to embarrass and offend them. So is op-ed.

Even if an investigative journalist could truthfully swear that in publishing public figures’ misdeeds she did not intend to harm the public figures, prosecutors and jurors aren’t necessarily going to see it that way.

If speech becomes unprotected because it is intended to cause and causes emotional harm, there is no limit to the mischief that the government might work.

Ideally, the Court of Criminal Appeals will adopt the Supreme Court’s recent (from the last decade) free-speech jurisprudence, optics be damned.

Do you see any limitations to that?

Protected speech can be restricted, but the restriction has to be truly content neutral. That is, an innocuous or positive message delivered the same way has to be just as illegal as the negative message.

There are oughts and there are ises. Here’s an is: The Supreme Court in Reed v. Town of Gilbert said that a restriction on speech based on the purpose of the speech is a content-based restriction. Intent and purpose are synonymous. A restriction on speech based on the intent of the speech (e.g. “intent to harm”) is ipso facto content based.

For example, should stalking be legalized as a form of speech?

I don’t understand the question. Is stalking speech?

-Can you explain why you believe that a finding of overbreadth means a statute is per se not narrowly tailored?

What is the opposite of “narrow”?

Broad.

A statute cannot be both “overly broad” and “narrowly tailored.”

As the state argues, this would make strict scrutiny meaningless as a test.

Here, you and the State are incorrect. (This is one of those arguments that are incorrect but superficially appealing.)

Strict scrutiny has two components: compelling state interest, and narrow tailoring. Both of these components have to be satisfied for a regulation to pass strict scrutiny. If a regulation fails one prong of the test, the other prong doesn’t matter.

If the state interest is not compelling (for example, the State’s purported interest, more honored in the violation than the observance, in protecting individual privacy) then it doesn’t matter how narrowly tailored a statute is. It fails strict scrutiny.

Likewise if a regulation is not narrowly tailored, it doesn’t matter how compelling the State interest is. It fails strict scrutiny. That doesn’t mean that strict scrutiny hasn’t been applied. It just means that the regulation has failed strict scrutiny.

Take a look at U.S. v. Stevens, in which the Supreme Court used this analysis: the statute was overbroad, and therefore void. The court did not need then to go into the state interest involved because no compelling state interest can justify a statute that is not narrowly tailored. (Then take a look at footnote 1 of Brown v. Entertainment Merchants Association, in which the court answered the question, “was that really strict scrutiny, though?”)

The fact that speech outside of the recognized categories of historically unprotected speech is protected (from content-based restriction) reflects a judgment that there is no compelling state interest in restricting (based on content) speech outside of those categories.

As the Court wrote in Stevens, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

On the other hand, the fact that speech in those recognized categories of historically unprotected speech is unprotected reflects a judgment that there is a compelling state interest in restricting speech in those categories.

The government has a legitimate interest in restricting speech in those unprotected categories, but does not have a legitimate interest in restricting protected speech, based on its content.

If a statute restricts almost exclusively unprotected speech, but captures incidentally a small amount of protected speech, then it is not substantially overbroad, so it passes strict scrutiny.

But if a statute restricts a real and substantial amount of protected speech based on its content, it is not narrowly tailored, and no further inquiry is needed.

So overbreadth doctrine provides rules rules for applying strict scrutiny in the special case of a content-based restriction. The Supreme Court has identified the speech (speech in unprotected categories) that the State has a compelling interest in restricting, and has named a quantum of breadth (“not substantially overbroad”) within which the restriction must lie.

-You also argue in your brief that causing social or emotional harm is a viewpoint, an argument that seems to rely on the idea that causing offense is a viewpoint. Can you explain that a little further?

That’s what the Supreme Court says in Matal v. Tam: “Giving offense is a viewpoint.” Eight justices agreed.

Imagine a law that barred newspaper editorial pages from causing offense. Would it be a content-neutral restriction, subject only to intermediate scrutiny? Or would it be a viewpoint-based restriction, subject to strict scrutiny and the presumption of invalidity?

I hope the answer is obvious to you.

By mandating positivity (unoffensive speech) a law silences dissent.

-I see from the Austin American-Statesman that the state legislature has tried to create a new law just in case the TCCA rules for your client. Can you explain why you don’t believe they can write a constitutional law?

Because legislators are mostly midwits with no expertise in First Amendment law and no interest in listening to proven experts.

Before the internet came along, Texas statutes forbade all of the speech that could be forbidden consonant with the First Amendment. Everything unprotected was already restricted.

With the advent of the internet, the Texas Legislature started seeing new forms of harm, and passing laws to try to punish them.

Because everything unprotected had already been restricted, these new laws restricted protected speech.

The lege passed a new revenge-porn law in response to the Tyler Court’s opinion in Jones. But the Tyler Court’s opinion in Jones is not, I think, going to hold up in the CCA. Either the CCA will find some way to hold the statute constitutional (in which case the lege’s action was unnecessary) or the CCA will hold the statute unconstitutional on broader grounds (in which case the new statute will fail as well).

Years ago I actually suggested a way that the legislature might use obscenity law to restrict the worst revenge porn without offending the First Amendment. But obscenity is hard to prove, and the legislature wants to make things easy for prosecutors.

“Making speech easier to prosecute” is something of which all of us should be wary.

I hope some of this is helpful.

MB


The writer had represented that she needed answers before the end of September 18th.

When I responded, she did not reply.

I called her a day or so later to make sure she had received my email.

She had. She didn’t have any other questions for me.

She hasn’t published her story yet.

I guess it wasn’t the story she wanted to tell.

Update 12/19/2019: Lorelei Laird finally wrote something, closing with this soundbite:

It’s too bad the “reporter” didn’t ask me, “Why do we not think of naked photos as being as deserving of privacy protection as things like our medical records?”

My answer: “we” do.

But “we” don’t think of our exes’ disclosing our non-buttock secrets (including intimate facts not photographically reflected) as justifying imprisonment.

If the State of Texas passed a law forbidding you from revealing an intimate acquaintance’s medical records, or financial records, or any of the myriad things that we learn by being in an intimate relationship, I’d be the first to challenge that law.

Like “intimate images,” “intensely private facts” is not a category of unprotected speech, nor should it be.

But thanks for confirming my opinion of your motivation, you talentless partisan hack.


4 responses to “Revenge Porn Questions and Answers (Updated)”

  1. Regarding stalking, the reporter could have been thinking of so-called internet stalking, done exclusively on Facebook (and similar), that does indeed amount entirely to speech (written, though sometimes also video). The mid-2019 example of Stephen Crowder and Carlos Maza on YouTube come to mind, where Maza created videos for his show called Strikethrough, resulting in “debunking” videos from Crowder that used many of his self-described terms but in a jacking context. The result of this kerfuffle was a series of complaints to YouTube, the complete demonetization fo Crowder (while YouTube also asserted that he violated no rules), and Maza leaving Vox. Someone in that position may feel they are “stalked” entirely with words (though this example was on a purely private platform, of course). Maybe I’m just giving her too much credit though.

    I’m still mad that Entertainment Merchants Association wasn’t completed first, it really should have been captioned with Schwarzenegger. Still has the best Scalia quote ever, “… I’d call it the California Office of Censorship.” I could hear that line coming during the questioning, and was starting to laugh even before he delivered it.

    Think I got this from you (or at least you get credit for it) when I explain how it works: if you have to read it, then it’s content based.

Leave a Reply

Your email address will not be published.