Franks: A man who posted naked pictures of his girlfriend to his Twitter account and sent them to her employer and to her sister broke no law, a judge ruled last week. It may be puzzling to a layperson, but “revenge porn,” as it’s often called, isn’t a crime in New York.
Of all the categories of victims who might justifiably agitate for more protection from the law, women facing down abusive partners in their own homes should be at the top of the list. And yet Stand Your Ground laws do nothing to help them. This is n…
There is no doubt that Ian Barber posted naked pictures of his girlfriend to his Twitter account and sent them to her employer and to her sister. There is little doubt that he did so without her consent. There is also no doubt that the victim promptly reported the conduct to police. Yet Ian Barber will face no punishment for his actions.
My mini-opinion piece in The Independent.
"Just because someone elects to give a sexual photo of herself to an intimate partner doesn’t mean she’s chosen to relinquish all control of it. As University of Miami law professor Mary Anne Franks has said, someone who makes a living as a boxer hasn’t consented to be punched outside the ring. There is, and should be, a strong presumption that anyone who gives someone an image of herself naked has not consented to any wider dissemination….
The First Amendment can coexist fine with laws against revenge porn — as it does with laws against child porn, incitements to violence and sexual harassment. Unless there is some clear public interest in publication, writes UCLA law professor Eugene Volokh, “courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.”
Read the entire editorial here.
In the midst of these exchanges about online and offline harassment, there have also been many solemn declarations that such abuse is the “price we pay” for free speech, or even more grandly, for a free society. There’s much to be debated in this assertion.
My latest HuffPost piece debunks the claim that harassment, whether on the Internet or in front of abortion clinics, is the shared cost of doing business in a free society.
Can gossip websites be sued for defamation? Can revenge porn site operators be charged with extortion? Over at the Huffington Post, I try to clear up some confusion about website immunity in The Lawless Internet? Myths and Misconceptions about CDA Section 230.
This morning I was part of a HuffPost Live discussion about the producer of “The Bachelor” doing something possibly worse than producing “The Bachelor.” The short version: according to Elan Gale, a fellow passenger named Diane complained to airline staff about the flight’s delay. Gale bravely addressed this alarming situation by repeatedly sending the woman alcohol accompanied with handwritten notes telling her to “eat my dick.” Gale claims that after the plane landed, Diane slapped him in the face. Gale recorded all of these events on Twitter, and smugly informed Diane of this, telling her “Look me up online. Read every tweet. Read every response. And maybe next time you’ll be nice to people who are just trying to help.”
First, it’s not at all certain that any of this actually transpired (SEE UPDATE BELOW). So far all we have is Gale’s word for it. (There is another lengthy story of self-righteous aggression on Gale’s blog that is so alarming that one has to hope that it is fake: Gale recounts his dislike of his neighbors, a couple who has noisy fights over the man’s gambling and the woman’s friendship with another man named “Billy.” After the man causes Gale to experience a delay in receiving a cookbook from Amazon - I repeat, a delay in receiving a cookbook from Amazon - Gale decides it’s time to retaliate. He does so by leaving a gambling receipt in the man’s name for the girlfriend to find and sending flowers and an explicit message to the girlfriend under the name Billy. Cue signs of breakup, which Gale giddily photographs and posts to his blog.) Second, even if the incident is real, there is good reason to question whether Gale’s version of events is accurate.
But what is certainly real is the outpouring of support Gale has received for his alleged antics (the word “hero" was actually used more than once, apparently without irony), and the curious lack of reflection about the particular way Gale chose to attack Diane (there have been exceptions, such as the terrific, insightful piece by Liz Dwyer on her blog Los Angelista - it was a pleasure to be included with her on the HuffPost Live panel).
As I say in the HuffPost discussion, what was at worst irritating and disrespectful behavior by a passenger was answered by a thoroughly gratuitous, sexist, and disproportionate attack by a person who had no real goal other than self-promotion. If it did actually happen, this incident is a case study in misdirected energy on Gale’s part and misdirected praise on the part of his supporters - and that would be true even if it is not the case that Diane is a terminal-stage lung cancer patient, as has been reported. Why should mocking a person for her clothing, the fact that she is wearing a surgical mask, and - wait for it - breathing too loudly be considered solidarity for service workers or a principled stand against rudeness?
More disheartening still is the failure to recognize the crude, casual sexism of Gale’s “eat my dick” remark, a failure that suggests that such sexism is so embedded in our social discourse that it is all but invisible. The fact that anyone even has to ask what is sexist about a man expressing his disagreement with a woman by telling her to put his dick in her mouth is as absurd as it is depressing.
So let’s hope Gale made the whole thing up, and reflect on what it means that this is the kind of story he believed would earn him praise … and was apparently correct in thinking so.
UPDATE: Looks like Gale is now claiming that the whole thing was in fact a hoax. That’s one way to spin getting caught in a lie.
It is such a simple and evident observation, yet one that has taken me a long time to embrace: It is good when people with awful views attack you. Not regrettable, not merely tolerable, but affirmatively good.
Let me clarify at the outset that this does not mean that only people with awful views attack others, or that there is no such thing as a legitimate, deserved attack. What I’m talking about here are attackers who are demonstratively malicious, ignorant, or prejudiced, at least with regard to the subject of their outrage. When that is clear, it should be cause for celebration when they unleash their hysterical rants. We should all sit back and enjoy the show, because it is the surest sign that these people feel that their awful views are being threatened. And if you are someone who is actively trying to make the world less hospitable to malice, ignorance, or prejudice, this is a very good thing indeed.
So, as an example, I take it as a reassuring, life-affirming, positive sign that recent media coverage (for example, here and here) of my work on federal legislation against non-consensual pornography is drawing fire. Again, I want to emphasize the difference between reasonable disagreement (including extremely strongly expressed disagreement) and hysterical attacks. There are some very smart, well-informed people who disagree with some or even all of the work that the Cyber Civil Rights Initiative is doing. I have personally sought out and continue to seek the views of such people because I think it makes both my legislative and my academic work stronger, and I am very grateful to all of the individuals who have taken the time to offer their critique and feedback.
But it is not a sign of either intelligence or good faith when disagreement takes the form of personal attacks, including wholly fabricated claims that I am lying about working with federal legislators on this subject; lying about whose feedback I have solicited; resorting to laughable caricatures about legislative efforts instead of actually engaging with the drafts of legislation that are publicly available (or even bothering to contact the person whose work they attack); as well as the old standbys of completely irrelevant reflections about my physical appearance and speculations about my sex life (I won’t provide links to most of this material because I’m not interested in giving the authors the traffic they so clearly want and because the information is readily accessible without my promoting it). It’s also not a reassuring sign when the tone and language of such attacks sound so much like old Enquirer headlines or an eight-year-old’s taunts (“Lying Law Prof Lies!” is my personal favorite so far, though the “Franks to English translations” and the variations on claims that I will kill the Internet are close runners-up. It’s also amusing, incidentally, to observe the remarkable inconsistencies of these personal attacks: I am by turns an insignificant, untenured nonentity academic that no one is paying attention to and an all-powerful Feminist Academic Overlord No One Dares Object To and Who Controls All the Laws and who will, as has been noted, single-handedly kill the Internet.)
Why would anyone who has legitimate points of critique need to resort to such tactics? The answer is, of course, that they wouldn’t, which leads to the next question: if they are not motivated by principle, what does motivate their continued (so continued and so verbose in some instances that I wonder if the authors have anything else to do at all) attacks? And there we have the topic of this post, and the reason I have started to embrace the attacks: fear and anger.
Again, we’re talking about individuals who really, really, really hate the idea that any kind of law - no matter how carefully drafted - might make it harder for people to use sex to destroy another (usually female) person’s life. It won’t surprise anyone to learn that these individuals hate being called misogynists - they mention the word in every screed and try to preempt the charge by claiming that this is just a label I assign to every dissident. But it is generally the case that the only people who are obsessed with that word, and fear being associated with it, are people who know that their own actions and arguments (I use the latter word loosely) lead to that charge. Of course one can be critical of legislation against non-consensual pornography without being a misogynist. I have encountered (usually by actively seeking out) several First Amendment scholars and activists whose views diverge from my own, and no one, least of all me, would describe them as misogynist.
But let’s face it: if one’s grounds for objection are that non-consensual pornography is a mere matter of “hurt feelings,” or that victims were “asking for it” or at least should have expected it, or that the public’s right to see Anthony Weiner’s penis should absolutely trump the suicides, job losses, stalking, rape threats, and harassment that afflict the mostly female victims of non-consensual pornography, then the misogynist label might just be appropriate. Moreover, if your tactic of critique is primarily composed of singling out one woman from all the people who are making legislative efforts on this issue, including the overwhelmingly male politicians who are sponsoring legislation in a dozen states, and encouraging your followers to speculate about her sexual activities and offer judgments about her physical appearance, well, then, that pair of Misogynist loafers is starting to look really comfortable on you. You don’t get called a misogynist because you disagree with a woman - you get called a misogynist when your disagreement expresses contempt for women instead of a contempt for particular ideas.
But misogyny is not the only culprit here. Much of the extremism is also driven by self-aggrandizement. It is no coincidence that vicious attacks do not often come from high-profile individuals widely respected for their integrity and expertise. They come from low-level players who desperately want to have that status. They seem to think that if they are shrill and persistent enough, perhaps they too will receive attention from legislators and from the media. After all, in today’s culture, it is possible to gain some kind of status and influence simply by being a really loud and unpleasant jerk. (To be fairer to my attackers than they likely deserve, it is also possible that there are mixed motives at work in some cases. A person might actually have real arguments to make, say, about the First Amendment, but undermine himself by engaging in hyperbole or vitriol; see some of the exchanges in the comments here for examples of this). “Trolling” is an imprecise and mischievous term, but to the extent that it captures the tactic of engaging in obnoxious behavior to get attention, it may be appropriate here.
There is no way to tell whether the Cyber Civil Rights Initiative’s fight (and the work of so many others, including Without My Consent, Army of She, and Women Against Revenge Porn) for legislative and social reform is going to be successful. Yes, there are bills introduced or pending in about a dozen states, the issue has received significant media attention, and it is extremely encouraging that a member of Congress has reached out to our organization for help drafting federal legislation. But the legislative process is a tricky and unpredictable thing, and we aren’t putting all of our activist eggs into one basket. We’re also working with leaders in the tech community on non-legislative solutions, as well as helping victims fight the abuse using currently existing methods, and working to change social norms about sex, consent, and privacy. We are hopeful that the many organizations and individuals who care about privacy and unlawful surveillance will want to join us, especially those whose consciousness has been raised by recent controversies over NSA spying. The so-called “third-party doctrine,” according to which a person loses his reasonable expectation of privacy over information that he shares with any other party, is rightly being denounced in the context of web searches and cellphone records. It should also be denounced in the context of exchanges of what many people consider among the most sensitive and intimate information they possess - images of their own naked bodies. If the effort to value sexual privacy at least as much one values web search or cellphone privacy is so frightening and repulsive to some people that they have to rush to their keyboards to denounce it, so be it.
Because it is good when people with awful ideas attack you.
It’s not easy being insulted on-air by one of the internet’s most infamous a-holes. But when Mary Anne Franks found herself the target of a vicious f-bomb-filled tirade by Vice magazine founder Gavin…