There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don’t offer any statutory language that might pass First Amendment Muster.

Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.

Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don’t suggest language that might be acceptable (Citron disagrees with Franks’s approach—she thinks that an acceptable statute will “only punish individuals who knowingly and maliciously invade another’s privacy and trust“; Franks disagrees, and her model statutes don’t include those requirements).

In “Regulating revenge porn isn’t censorship” Citron and Richards write:

Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

For “some critics” they link to my post fisking Citron’s Forbes Forbes piece on the subject.

They also write—

The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

—which puts Richards squarely in the sleazy dishonest camp, with Citron and Franks, of those who, knowing better, accuse people opposed to criminalization of favoring the activity that would be criminalized.

That notwithstanding, I’ve read some of Richards’s writing on privacy and the First Amendment, so I was curious how a revenge-porn criminal statute could pass First Amendment muster.

I asked Richards via The Twitter Machine:

@neilmrichards you say, “First Amendment is no bar to a well-crafted law.” Please provide an example of such a law. https://t.co/qbHYK5LY1j

— Mark W. Bennett (@MarkWBennett) February 24, 2015

He replied:

@MarkWBennett in under 144 chrs: 1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy — Neil Richards (@neilmrichards) February 25, 2015

What he may not have known is that I had already read him. I quoted him back at himself:

@neilmrichards “The power to declare facts or topics to be [not newsworthy] is in a very real sense the power to censor.”

— Mark W. Bennett (@MarkWBennett) February 25, 2015

1/ @neilmrichards “Giving a court the power to declare information ‘illegitimate’ under a malleable standard is to give that court the power

— Mark W. Bennett (@MarkWBennett) February 25, 2015

2/ @neilmrichards “…to censor expression that it (or a jury) dislikes, and is at odds with modern commitments to the freedom of speech.” — Mark W. Bennett (@MarkWBennett) February 25, 2015

What he’s saying in those quotes is that giving courts a standard such as “not newsworthy” or “of purely private concern” gives them the power to censor expression that they dislike, and is at odds with modern commitments to the freedom of speech. Which is a very different thing than a well-crafted law will criminalize “1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy.”

@neilmrichards Have you now decided that it’s okay to let courts declare speech illegitimate because it’s not newsworthy? — Mark W. Bennett (@MarkWBennett) February 25, 2015

He crawfished:

@MarkWBennett no, but an exception for undeniably newsworthy content is one possibility for a NCP law. It might not need it.

— Neil Richards (@neilmrichards) February 25, 2015

@MarkWBennett In any event, Twitter is the wrong medium for this conversation, where things can easily be taken out of context.

— Neil Richards (@neilmrichards) February 25, 2015

I would be interested in reading a breach-of-confidence revenge-porn statute, but I’ve yet to see one, and Richards is apparently a dry hole. He’s hand-wavey on the defense of his platonic well-crafted law, too:

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

With links and everything! Except that the first link is to a book by Citron; the second to a book by Richards; the third to an Atlantic article; the fourth (headache-inducingly) to an ACLU press release about the lawsuit challenging Arizona’s revenge-porn statute, which says nothing about intimidation, threats, or harassment; and, finally, some law: Rice v. Paladin Enterprises, Inc., in which the Fourth Circuit Court of Appeals reversed the District Court’s grant of summary judgment in favor of the defendant who had published a manual for murder.

Except that the Supreme Court has never said that there is no right to secretly capture sexually explicit images. Nor has it ever held that privacy trumps the First Amendment, nor that speech violating a trust is ipso facto unprotected.

Perhaps if the speech is intended to intimidate, threaten, or harass (rather than merely to embarrass or offend), it is unprotected. Non-content-based restrictions forbidding such speech have been upheld, but such restrictions need meet only intermediate scrutiny, lower scrutiny than the strict scrutiny that content-based restrictions face, so that’s no indication that a content-based restriction like a revenge-porn statute will be upheld.

Besides, try suggesting to the carceral feminists, fans of criminalizing revenge porn, that a criminal statute should include as an element the intent to intimidate, threaten, or harass.

Good luck with that.