Revenge Porn: Peanut Gallery Weighs In

 Posted on October 23, 2019 in Uncategorized

Some dolt ((Not an argumentum ad hominem: I'm not saying his argument is wrong, because he's a dolt. I'm saying he's a dolt, because his argument is wrong. Read on, and tell me if I'm wrong.)) in Illinois thinks my handling of the "speech of purely private concern" argument here is too "dismissive":

You're right that the Supreme Court has not applied its lesser-protected speech language to cases like this. But that language is there and the test is being developed on the state level. Your dismissive approach therefore does not seem to be particularly effective.- Michael Smith (@msmith750) October 23, 2019

He bases this statement on his reading of the blog post I wrote on People v. Austin, linked to above.

That blog post was a cut-and-paste job from the brief I filed to tell the Court of Criminal Appeals about the Illinois Supreme Court's decision in Austin. The dolt doesn't have any reason to know this, because his curiosity about the arguments in this case starts and stops at "what the Cyber Civil Rights Institute can do to outlaw this icky speech."

If he had followed the briefs in this case, he'd have seen that in my brief on Austin I footnoted the sentence, "It then holds that the statute "regulates a purely private matter," so that the strict scrutiny that applies to content-based restrictions does not apply," with "For a thorough discussion of this argument, please see Mr. Jones's opening brief at 16–25."

Here's Mr. Jones's opening brief:

[pdf-embedder url="/wp-content/uploads/2019/10/Jones-PDR-Brief-Final.pdf" title="Jones PDR Brief Final"]

I am proud of our work here, but not so proud that I would not have replied if I thought that someone had, in the several briefs filed by or on behalf of the state (including a weak effort on behalf of the Cyber Civil Rights Institute as amicus), laid a finger on my argument.

Nobody laid a finger on my argument. Outside of Illinois, the speech of a non-government employee does not receive lesser protection from criminal restriction because it is of purely private interest. Every argument to the contrary is either jailhouse lawyering (taking a snippet of text out of context and blowing it up to mean everything) or arguing by negative inference ("The Supreme Court says that this speech is not purely private, and is constitutionally protected. That must mean that speech that is purely private is constitutionally protected."

Even the Vermont Supreme Court, in upholding that state's revenge-porn statute in VanBuren, rejected this "purely private interest" test:

Because the Supreme Court has not expressly adopted an intermediate scrutiny framework for evaluating content-based restrictions that apply to low-value, purely private speech, we decline to do so here.

If the purely private nature of speech made that speech less protected (flaccid doltlike intermediate scrutiny, as opposed to robust Bennettian strict scrutiny), then most of the Supreme Court's criminal free-speech cases of the last 30 years would have come out differently. ((Please see my brief at 17–19.))

I'm not saying that we win in the Court of Criminal Appeals. If I thought that was inevitable I wouldn't have put so much effort into briefing it. It's possible that, as the Illinois Supreme Court did, the Court of Criminal Appeals will uphold the statute because the results of holding it unconstitutional are unpalatable.

I'm just saying that I'm pretty sure I'm right, and nobody has come close to raising a doubt in my very open mind.

Everyone is entitled to an opinion. I love competent criticism of my work, because it makes me better. But if you're a lawyer and you come at me calling my arguments ineffective, will you please read the goddamn briefs in which I make the arguments first? Because I have been studying and working on this question for about five years now, and I'll stake my knowledge of the arguments against anyone's. And if you think you know better than me, you're most likely wrong.

I'm not angry. I'm just annoyed.