First Amendment 101

 Posted on October 06, 2014 in Uncategorized

Danielle Citron compensates for her ignorance of First Amendment law with her certainty:

Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Slate, All States Should Outlaw Revenge Porn.

Laypeople don't know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law:

  1. Speech is presumptively protected.

  2. Content-based restrictions on speech are presumptively void.

  3. For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:

  4. Advocacy intended, and likely, to incite imminent lawless action;

  5. Obscenity;

  6. Defamation;

  7. Speech integral to criminal conduct;

  8. So-called "fighting words";

  9. Child pornography;

  10. Fraud;

  11. True threats; and

  12. Speech presenting some grave and imminent threat the government has the power to prevent, "although," says the Supreme Court, "a restriction under the last category is most difficult to sustain."

Those are the categories of speech that the Supreme Court has recognized as unprotected. ((In fact they are redundant-child pornography is unprotected because it is speech integral to criminal conduct.)) So Citron's assertion that "disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection" is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category

In her law review article with Mary Anne Franks Citron argues (from Supreme Court dicta and other courts' opinions) that the Supreme Court might recognize such a category, for example, as Eugene Volokh goofily proposes, by redefining obscenity to eliminate the requirement that the material be of prurient interest, as well as the requirement that the material be utterly without redeeming social interest. ((Citron and Franks cite Volokh's proposal approvingly even though Volokh notes that his notion of obscenity would render unprotected "many consensual depictions of nudity." They would cut down every tree in England....))

Indeed the Court might some day recognize a category of unprotected speech that includes revenge porn. ((And perhaps it should. But it's hard for this First Amendment lawyer to see how an exception could be crafted to exclude from protection revenge porn but not exclude socially desirable communications, such as Volokh's consensual depictions of nudity.)) How the Supreme Court responds to private images may depend on how the case arrives at the Supreme Court. I can see the court treating the disclosure of consensually made images differently than the nonconsensual making of images. But we're a long way from there, and while Citron's certainty may affect the lawmakers whom she is trying to convince to pass revenge porn statutes, it won't convince the courts that will be hearing the inevitable challenges to those statutes. Those courts are bound by Supreme Court precedent, which contra Citron, does not put revenge porn into any unprotected category.(See also Scott Greenfield.)

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