Revenge Porn: More Made-Up First Amendment Law

 Posted on October 23, 2013 in Uncategorized

Mary Anne Franks is still inventing First Amendment law in the cause of her political crusade to get her proposed statute outlawing revenge porn outlawed:

PrometheeFeu, I do disagree with you, but much more importantly, the Supreme Court disagrees with you. The Court has never held that speech that has zero political, newsworthy, artistic, or scientific value receives First Amendment protection – and certainly not full First Amendment protection. Speech, by the mere virtue of being speech, does not receive First Amendment protection by default. Factor in that the speech in question here is sexually explicit, of purely private interest, and has devastating secondary effects – that's speech with zero positive value and a great deal of negative value. There's no Supreme Court precedent for protecting that. To the contrary, the Court has made it clear that such forms of speech "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (Chaplinsky v. New Hampshire)

For a case in which the Supreme Court held that speech with zero political, newsworthy, artistic, or scientific value receives First Amendment protection, we need look no further than 2010's U.S. v. Stevens. Stevens was about depictions of animal cruelty, valueless speech if there is such a thing. In that case the Court rejected, in no uncertain terms, the proposition that there is a balancing test for the criminalization of speech:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." Brief for United States 8; see also id., at 12.As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. 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. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being "`of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" R.A.V. (quoting Chaplinsky). In New York v. Ferber we noted that within these categories of unprotected speech, "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required," because "the balance of competing interests is clearly struck," id. The Government derives its proposed test from these descriptions in our precedents. See Brief for United States 12-13.But such descriptions are just that- descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute's favor.

So where Franks sees a balancing test in Chaplinsky, today's Court does not. Contrary to Franks's foot-stamping assertion, speech is protected by default. Speech is protected unless it is within a category of speech that is historically unprotected. Stevens again:

Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that "depictions of animal cruelty" is among them. We need not foreclose the future recognition of such additional categories to reject the Government's highly manipulable balancing test as a means of identifying them.

Franks will not address the categorical approach taken by the modern Supreme Court in Stevens. She will not because revenge porn does not fit into any category of speech that has been described by the Court as historically protected. To admit that would be to admit that she has been wrong all along; that current Supreme Court precedent does not permit what she would have state legislatures to do.

Franks is not acting as a neutral, but as an advocate for a position. Unfortunately, when she presents herself as a "law professor" laypeople assume that she is neutral, that she is knowledgeable about the subject matter, and that she is right. In this instance, none of those assumptions are correct.

It might be that the Supreme Court will someday recognize a category of unprotected speech encompassing revenge porn. But convincing the Supreme Court to recognize a new category of unprotected speech will be a very different-and much more difficult-battle than Franks is selling to state legislatures.