Fake Geek Guys: A Message to Men About Sexual Harassment

This is a good read. Khouri dissects the hostile response Janelle Asselin received after daring to criticize a superhero comic book cover. Instead of offering good faith disagreements, her detractors used hyperbole, misrepresentation, and outright lies in combination with sexualized harassment and threats to try to discredit her opinion. What is it about knowledgeable women offering opinions that inspires this kind of irrational hostility?

Meet the Krav Maga-fighting law professor behind U.S. revenge porn laws

Happy to report that there are plenty of free speech advocates who DON’T think fighting revenge porn makes me the enemy!  A thoughtful piece by Kevin Collier.

Keeping the “Dirt” in “Techdirt”: Ignorance, Hypocrisy, and Revenge Porn Laws

Techdirt’s Mike Masnick, who bravely refuses to let his tenuous grasp of the First Amendment and CDA Section 230 stand in the way of vehement objections to legislation against non-consensual pornography, calls my observation of the errors he and Tim Cushing have made about my work “going ballistic.” He feels that my drawing attention to the fact that he had either misunderstood or misrepresented my work is “attacking” him.

I had not realized that Masnick was a delicate flower that wilts upon exposure to accuracy (this sensitivity seems to be a Techdirt-wide phenomenon; fellow Techdirt “writer” Cushing was so upset about my calling him out for his outright lies that he had to storify his feelings). But then, one must consider the company he keeps - chief among them a law blogger whose idea of critiquing my ideas is asking his readers if they have any naked pictures of me and who tweets speculations about what I’m like in bed (when he’s not demonstrating his embarrassing lack of comprehension re: Section 230).


Masnick and Cushing and the rest of the “Internet is Falling” boy band seem to think that if they repeat a lie enough times, gullible people will start to believe it. That’s depressing on a number of levels, but particularly because there is actual room for reasonable debate on these important issues - a fact obscured by such cheap tactics. Some people are genuinely of the view that a federal criminal law protecting sexual privacy, no matter how carefully designed, might chill important online speech. I happen to think that this is wrong, and have explained why in many forums, but I understand that reasonable minds can disagree about this. By contrast, hysterical claims that my model legislation will “gut the Internet," or completely baffling claims that I am trying to "upend safe harbors on the Internet ‘for the children’" (Cushing is apparently mixing up my legislation with child porn legislation, and apparently thinks child porn laws are bad. Also seems not to understand that quotation marks are generally reserved for things people actually say) are simply inaccurate, and betray a serious lack of understanding about my model legislation, First Amendment doctrine, and how Section 230 works.

For the benefit of those coming to these issues for the first time in this post, I have never advocated amending or altering Section 230 as a way of responding to non-consensual pornography. There are people who do so, and interestingly enough, one of them is someone Techdirt writes glowing stories about on a regular basis. That would be Marc Randazza, whose civil litigation efforts on behalf of revenge porn victims has been rightly praised. In his own words, “Section 230’s time for amendment has come.” It’s quite odd that no one at Techdirt has any issue with Mr. Randazza’s actual call to amend Section 230 protections, but has now published three stories about the grave consequences of my non-existent call to amend Section 230. It is also exceedingly odd that Techdirt, along with Mr. Randazza and certain ACLU attorneys, fail to comprehend one of the most basic tenets of First Amendment doctrine, namely, that the First Amendment makes no categorical distinction between civil and criminal regulation. In other words, one cannot praise civil remedies against revenge porn without conceding that revenge porn is not protected by the First Amendment.  And if revenge porn is not protected by the First Amendment, it is possible to criminalize it without violating the First Amendment. In other words, one cannot both praise civil remedies against revenge porn and oppose criminal laws against revenge porn on the basis of First Amendment doctrine.

Of course, one can argue that some specific criminal law is broader than some specific civil law, and in that sense could violate the First Amendment in a way that the civil law does not. But as the model criminal statutes I have proposed are extremely narrow, especially compared to torts like intentional infliction of emotional distress or invasion of privacy, this criticism does not have much weight either (attorney Carrie Goldberg offers a helpful First Amendment analysis of my model statute in the comments section on her blog). I suspect this is why most criticism of my proposed criminal legislation fails to cite any actual language from it, despite it being publicly and widely available. Masnick, for instance, disingenuously wonders whether sites will have to take down “unflattering” photos - the answer is no, because the model statutes address only sexually explicit images, and the definition of sexually explicit is clearly set out with reference to existing legal definitions of those terms.

One can of course oppose criminalization for other, non-First Amendment reasons - for instance, that the conduct isn’t serious enough to warrant prison time. Given that non-consensual pornography is a grave violation of sexual privacy and autonomy - certainly at least as much as traditional voyeurism is, which is criminalized in most states - and furthermore causes harms ranging from job loss to stalking to suicide, this is an odd objection. Property theft and minor assaults normally do not cause nearly as much lasting and irreversible harm as non-consensual pornography does, yet there is no widespread objection to their criminalization. 

So is there anything behind this claim that a federal criminal law against non-consensual pornography destroys Section 230? Not much, or at least not any more than the claim that federal child porn laws, federal identity theft laws, federal extortion laws, or any of the hundreds of federal criminal laws that already exist destroys Section 230. The law wouldn’t suddenly transform Google or Facebook into criminals any more than any of these laws do. This is immediately apparent to anyone who actually reads the model legislation (of course, the actual law that will finally be proposed may differ from my model, but the elements will likely be similar). Only individuals who intentionally disclose a sexually explicit image of another person when a reasonable person would have known that the person did not consent to that disclosure have any chance of being prosecuted. That means if Google or Facebook or any other intermediary has no idea that a third-party user has introduced such an image into its platform, it is not liable.

The harder question is the process by which Google or Facebook or any other intermediary can be informed that they are hosting an illegal image, and the procedures that should be in place to ensure its timely removal without undue burden to the intermediary. But this is not a novel question. The same question has been raised by child porn laws and copyright laws. Safe harbors and affirmative defenses for intermediaries have been worked out before for other illegal content, and while they may not be perfect, they have also not brought the Internet to a screeching halt. There is no reason to think that non-consensual pornography presents some sort of sui generis, insurmountable challenge to free speech on the Internet. Those of us involved in the drafting of federal legislation have actively sought out the advice and input of online intermediaries in designing safe harbor provisions, and we continue to welcome input from knowledgeable individuals on this issue (if any such knowledgeable people happen to be reading this post, please do get in touch - email is best).

I’ve been told that Techdirt sometimes offers well-informed, nuanced analysis of technology and business issues. I haven’t seen any evidence of this so far, but if it is the case, the question really is why Masnick and Cushing’s writing on this particular issue is so uninformed, hypocritical, and childish.  Is there something they find so distressing about the possibility that severe violations of sexual privacy might be punished that makes them forgo any semblance of objectivity or integrity? If Mike Masnick or Tim Cushing or anyone else really wants to try to understand the complex legal and ethical issues of non-consensual pornography, and offer opinions about my efforts about them, they might try actually researching the issue. Or educating themselves about what Section 230 actually says.  Or actually reading the model legislation. Or contacting well-known First Amendment scholars. Or Section 230 experts. Or victims’ advocacy organizations. Or victims. Or me. Instead, they wallow in falsehoods, misrepresentations, and references to bloggers who write ad hominem, self-aggrandizing attack pieces devoid of intellectual curiosity or nuance. While echo chambers may be great for making like-minded people feel better about themselves, they do very little to advance ideas or encourage thoughtful engagement with complex issues.

The Case for Making Revenge Porn a Federal Crime

Great coverage over at Gawker.

Federal 'Revenge Porn' Bill Will Seek to Shrivel Booming Internet Fad - US News

I am extremely excited to be working with Congresswoman Jackie Speier on federal legislation against non-consensual pornography.

You Will Not Believe What Florida Is Doing Now

Florida’s Stand Your Ground law has been used to protect men who killed people in disputes over the number of garbage bags that should be placed on a curb, dogs, drug deals, and FPL bills. Unsurprisingly, Rep. Matt Gaetz now wants to keep the media from finding out about these cases.

Revenge Porn: Societal Costs and Legislative Solutions - Legal Talk Network

Holly Jacobs, the founder and President of the Cyber Civil Rights Initiative, and I were interviewed recently by the Legal Talk Network. We discuss victim-blaming, the First Amendment, and what CCRI is doing to try to combat non-consensual pornography. You can listen to the entire interview at the link above.

Idaho just made revenge porn a felony

Idaho is the first state this year to pass a law criminalizing non-consensual pornography. You can read the full text of the bill here. This makes it the fifth state to criminalize the conduct, joining New Jersey, California, Alaska, and Texas.

State 'Revenge Porn' Legislation

We are definitely making progress. I’ve now worked with more than a dozen states on anti-revenge porn legislation, and the National Conference of State Legislatures reports that 23 states and Puerto Rico have pending bills on the issue this year. Click on the link above for more information. If you are interested in joining the effort against non-consensual pornography and other forms of online abuse, please visit the Cyber Civil Rights Initiative.