Posted May 15, 2020. To settle a pandemic-related financial crisis at UMass Dartmouth, law faculty are not receiving research compensation in summer 2020. I will be away from my desk, May 16 to August 15. Blog posts will be sparse, and I will not receive email. On the upside, summer 🌞! If you need to reach me, please send a message through the faculty assistants’ office (Ms. Cain and Ms. Rittenhouse). Stay thirsty.
Showing posts with label obscenity. Show all posts
Showing posts with label obscenity. Show all posts

Tuesday, April 24, 2018

Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'


Last week a Tyler, Texas, appellate court struck the state’s criminal revenge porn law as fatally overbroad, so facially unconstitutional, under the First Amendment to the federal Constitution.  The ruling garnered headlines heralding the unconstitutionality of revenge porn law, which could have big implications in privacy law and policy nationwide—even ramifications for U.S. foreign relations.

However, the court’s ruling was not so broad as headlines have suggested.  In fact, the court gave wise and constructive feedback on what a revenge porn law needs to look like to pass constitutional muster—which it can.  It seems in the end that the Texas law was just not well drafted.  Accordingly, the revenge porn laws that have proliferated in the United States, now in 38 states (collected at Cyber Civil Rights Initiative), should be scrutinized and, if necessary, corrected.  (Constitutional problems with Vermont and Arizona laws were mentioned just today by the U.K. Register, here.)

The Texas case, Ex parte Jones, No. 12-17-00346 (Tex. Ct. App. Apr. 18, 2018), involved a criminal information against Jones under Texas Penal Code section 21.16(b), which criminalizes the “unlawful disclosure of intimate visual materials.”  The statute reads:


A person commits an offense if:
  (1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;
  (2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
  (3) the disclosure of the visual material causes harm to the depicted person; and
  (4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]


The statute, section 21.16(a), furthermore defines “visual material” broadly (“any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide,” as well as electronic transmission) and “intimate parts” specifically (““the naked genitals, pubic area, anus, buttocks, or female nipple of a person”).

The court’s First Amendment analysis was sound.  The court applied de novo review to test the constitutionality of a criminal statute.  The court rejected a narrow construction that would confine the law to mere obscenity, as stringently defined by federal precedent.  Because the statute is then a content-based restriction of expressive content, the court charged the government with the burden of rebutting presumptive unconstitutionality.  The State conceded at oral argument that the law must survive strict scrutiny, i.e., advance a compelling state interest and be narrowly tailored to do so.  Intimate privacy passes muster on the first prong, but the statute facially fails narrow tailoring.  The court acknowledged that overbreadth doctrine is “strong medicine”; nevertheless, the statute could not measure up.

The court illustrated the statute’s fatal flaw with a hypothetical, unattributed so presumably original, that seems drawn from a law school or bar exam:


“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”


“In this scenario,” the court observed, “Adam can be charged under Section 21.16(b), but so can Charlie and Donna.”

Therein lies the problem: not necessarily as applied to Adam, but as applied to Charlie and Donna, who are ignorant of the circumstances under which the photo came to be.  Certainly Charlie, who received the photo from Adam “without comment,” might as well believe that Adam ripped the photo of a stranger from a pornographic website.  However indecent the photo, both Charlie and Donna have a First Amendment right to communicate the photo “downstream.”  Yet without Barbara’s consent, Charlie and Donna run afoul of the revenge porn law.  Given the ease with which persons can share visual images in the age of electronic and online communication, the court found “alarming breadth” in this potential criminalization of expression.  In First Amendment overbreadth doctrine, a facially overbroad criminal law must be ruled unconstitutional even if it might be constitutional as applied to the defendant before the court.

The court distilled the law’s flaws in two dimensions related to culpability.  Typically of a criminal prohibition, the statute requires intent.  But intent pertains only to the republication of the image.  The statute does not require that the actor have “knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.”  Second, the statute does not require “intent to harm the depicted person,” or even knowledge “of the depicted person’s identity.”  Borrowing the language of civil law (meaning common law tort), one would say that the statute requires volitional intent, but not intent to commit a wrong or to cause an injury.

The requisite intent to survive constitutional challenge may be likened to “actual malice,” which is used in both civil and criminal defamation law to describe “knowledge of falsity or reckless disregard of truth or falsity.”  In the context of revenge porn, a constitutional law might require “actual knowledge of the depicted person’s reasonable and continuing expectation of privacy in the image, or reckless disregard of same.”  If Charlie knew the identity of Barbara, so might infer the circumstances under which the photo had been taken, then the State might at least allege recklessness.  Donna, who did know Barbara’s identity, might be charged.  But she should be entitled to defend upon a qualified privilege, borrowed again from common law defamation, to share information in the interest of a recipient or third party when the defendant should disclose according to general standards of decency.  A corrected statute would hold Adam accountable without a constitutional problem.

Also just last week, the Rhode Island legislature (my home state) passed a revenge porn bill (2018-H 7452A) that has the support of the Governor Gina Raimondo (AP).  Raimondo vetoed a revenge porn bill in 2016, objecting on free speech grounds (Providence Journal).  Her position now is bolstered by the Texas decision in Jones.  Beefing up the intent requirement is precisely one of the R.I. legislative fixes that brought the latest bill to fruition.  The Rhode Island bill requires that the defendant intentionally disseminated, published, or sold “[w]ith knowledge or with reckless disregard for the likelihood that the depicted person will suffer harm, or with the intent to harass, intimidate, threaten or coerce the depicted person.”

I still have qualms about extending the “reasonable expectation of privacy” (REP) standard—which is drawn from Fourth Amendment jurisprudence as a bulwark against improper state action—being extended into the realm of private criminal or civil liability.  REP is potentially much broader than the intimate-depiction definitions of revenge porn laws.  And criminalization and civil liability are not the same.  Even though criminal defamation is constitutional when qualified by actual malice, contemporary human rights norms discourage the criminalization of expression at all.

At the same time, I have argued in favor of evolving U.S. law to recognize downstream control of private information, in consonance with both American values in the information age and emerging global legal norms.  Revenge porn laws—as against Adam, to the exclusion of Charlie and Donna—are a modest step in that direction, which European observers will welcome of us.  We will have to remain vigilant to continue to protect freedom of expression in tandem with expanding privacy rights, especially in a time in which the latter at the expense of the former is the fashion.  Conscientious actors such as the Jones panel (Worthen, C.J., and Hoyle and Neeley, JJ.) and Governor Raimondo are doing well, so far.

Wednesday, November 2, 2016

Laughing with Lenny Bruce, from schmuck to conscience

 
Kitty Bruce cuts the ribbon on the Lenny Bruce archive at the Brandeis University Goldfarb Library.

There is indecent language in this post.

In the last week of October, Brandeis University hosted a conference, “Comedy and the Constitution,” celebrating the life and work of comedian Lenny Bruce (1925-1966).  The conference marked the accession in the Brandeis University Library of Lenny Bruce’s papers, donated by his daughter Kitty Bruce, who participated in the conference.  The program was organized by Professor Steve Whitfield in American Studies and Sarah Shoemaker in Goldfarb Library Special Collections.  Featured speakers included Christie Hefner, former chairwoman and CEO of Playboy Enterprises, and “outrage” comedian Lewis Black, known to many through his long-running Daily Show segment, “Back in Black.”

My own paper for the academic part of the program concerned free expression and communication regulation.  Specifically, I looked at Bruce's technique of repeating indecent words with the aim of disempowering them.  If one repeats fuck again and again, the tenth repetition doesn’t sting the ear as much as the first.  George Carlin was there at least once when Bruce was arrested for “obscenity” based on the use of discrete words.  There can be little doubt that the experience directly influenced Carlin’s famous “seven dirty words” routine.  This comedic tradition at least tracked a strengthening of free expression in U.S. culture and law—think “Fuck the Draft” on Cohen’s jacket, 403 U.S. 15 (1971)—and might moreover have been a precipitating force.  For better or worse, the power today that attaches to many favorites in the pantheon of bad words is not what it used to be.  Ruth Wajnryb observed in her 2005 book, Language Most Foul, “[N]owadays it takes several fucks to achieve what one lone fuck would have achieved ten years ago.”

The lodging of Bruce’s legacy at Brandeis is a good fit for a couple of reasons.  The university is named for Justice Louis Brandeis, an associate justice of the U.S. Supreme Court from 1916 to 1939.  Brandeis was a key contributor to modern First Amendment law.  In the wake of World War I, he laid the groundwork for a more vigorous model of speech protection than had been known in the prior century.  Even amid the Red Scare, Brandeis recognized that if freedom of speech means anything, then minority perspectives on politics must be protected, however distasteful to the establishment.

Brandeis also was the first Jewish member of the U.S. Supreme Court, an experience that informed his views on social justice and antimajoritarianism.  Judaism played a key role in the founding of (non-sectarian) Brandeis University and remains today an omnipresent part of the university’s social culture.  Bruce was a Jewish comedian, and his cultural experience shaped his comedy.  

A number of academic papers at the conference focused on the role of Yiddish in the comedy of Bruce and also in the wider tradition of Jewish comedy.  I was ignorant on this point.  But presenters made a compelling case that the Yiddish tongue is especially well suited to comedic devices such as double entendre and nuanced word play.  In broad strokes, the particular compatibility of Yiddish with comedy seems a function of the truism that people have always turned to comedy to relieve suffering.

Christie Hefner

In terms of political commentary, Christie Hefner traced a direct legacy from Lenny Bruce to the sharp witted comedy of The Daily Show and Last Week with John Oliver.  I think she’s right.  Jon Stewart and Stephen Colbert routinely scoffed at the notion that they produce news, despite serious research showing their influence on popular thinking about politics.  Stephen Colbert’s SuperPAC bits on The Colbert Report spoke volumes on the very real role of money in politics.  John Oliver eschews the label of journalist, but his work at HBO has at least raised awareness, if not effected reform, on critical social issues such as net neutrality.

Someone at the Brandeis conference pointed out that some of our attribution to Lenny Bruce of a desire to make the world a better place--by cursing of all things--has got to be a posthumous fiction.  I think that’s right too.  Bruce was just a person, not a legend.  He wanted to sustain himself with his flair for the funny, to fill seats at shows, and to take care of his family.  Arrests for obscenity--the more absurd the state's case, the better--were good for business.

I’m not troubled by any dissonance in the legend and the man who was Lenny Bruce.  The Old Testament is replete with the sea changes of unlikely messengers.

Lewis Black

Friday, September 9, 2016

Of turds and torts

<Warning: Vulgar language ahead!>

Lately I have been doing research on "bad language" in anticipation of the Lenny Bruce conference that will dedicate his archive to Brandeis University libraries (see Comedy and the Constitution, and join us on October 27-28!).  A couple of sources have taught me that the vulgar word "turd" shares an origin with the legal term "tort."  As explained by Professor Geoffrey Hughes in his Encyclopedia of Swearing (2006), page 467:
TURD. This ancient term has followed the same basic semantic route historically as shit, being first recorded in Anglo-Saxon times in a plain literal sense, leading to various metaphorical extensions of coarse abuse from the medieval period onward.  Etymologically the word turns out to be a distant relative of legal tort, both rooted in the concept of being twisted or crooked.
So the next time I'm told, "You're full of shit," I will say, "Why, thank you.  I am indeed a torts professor."

Now that's a savory re-tort.