UPDATE
A bit about the brilliant Eugene Volokh, a noted libertarian-conservative scholar of law:
http://www.volokh.com/2013/03/23/congratulations-to-eugene-volokh-listed-among-the-100-most-influential-lawyers-in-america/
ORIGINAL ARTICLE
As I just blogged, the first amendment is not a get-out-of-jail-free card, as some libertarians seem to think.
At Slate, Emily Bazelon, who did a great legal analysis of the Trayvon Martin case, suggests how to improve the new law.
She suggests, rightly, that an improved law would ban the posting of ANY content depicting nudity or sexual contact, unless there was explicit permission from the subject.
The injunction would extend to the publisher (regardless of whether he had a malicious intention or not), not simply to the person who took the image, who in many cases is the victim herself.
For those who are in full “blame-the-victim” mode, here’s why you are off-base:
Consider someone who takes a picture of her body, for medical reasons, and, by accident leaves a copy on her computer. Say that someone gets hold of it and tried to pretend the person sent the image to a porn site.
It is easily done.
They could then upload that pornified image onto their target’s cell-phone, unbeknownst to her, and “send” it to her employers, or to her husband, or to strangers, or even to a popular forum, texting a fraudulent message of consent to publication along with it.
What did the victim do to merit such harassment?
The sky is the limit when it comes to the ingenuity of people in devising such evil schemes to target what are often very young women. Holly Jacobs was 23 at the time.
Other times, the victims are only especially vulnerable (lonely or sick) or naive.
Many are not even aware of the potential of the technology in their hands, which is pushed relentlessly, not just by the government, as libertarians would have it, but by corporations intent on commercially milking every human drive to its ultimate limit.
A modicum of good will and intelligence should let us see that Holly Jacobs is not at fault any more than a home-owner who finds himself burgled by a workman he trusted is at fault for trusting a criminal.
“Here’s a better model bill that doesn’t have the flaws of the one in California. The bill makes it a crime to “disclose” an image, video, or recording involving nudity or sexual contact without the subject’s consent, “under circumstances in which the person has a reasonable expectation of privacy.” Consenting to the photo within a private relationship doesn’t meaning consenting to public disclosure. The author, University of Miami law professor Mary Anne Franks, says that when people tell her they oppose it, they often start “waving their hands about free speech. But when you ask them how this violates the First Amendment, they can’t tell you why.” That’s because it really doesn’t. Eugene Volokh, a strong free-speech advocate who teaches law at UCLA, doesn’t see a constitutional problem with “a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication.”
Wow, did you ever loose me on this one:
“how to improve the new law. […] an improved law would ban […] “Here’s a better model bill that doesn’t have the flaws […]
A modicum of good will and intelligence”
Yes, and the gooberment shall make things right and be a modicum of good will and intelligence?
…If only it were improved/reformed?
Whoa.
Hi Clark,
Poisons in small doses at the right time and place in conformity with nature’s laws work.
That’s homeopathy.
“Gooberment” is a funny term. Unfortunately, it doesn’t substitute for actual thought.
The US needs to dismantle all its distributionist, nonsensical pseudo-laws and then firmly DEFEND life and property.
Statism is defense of distributionist laws. Statism is NOT the defense of life and property.
The latter is natural law. When the LAWS of the state conform to NATURAL LAW
then they are indeed needed and just.
“When the LAWS of the state conform to NATURAL LAW”
Not before.
Poisons in small doses at the right time and place
That’s many things. Not just homeopathy.
I so hate knowing some things, sometimes.
I wonder, when was the last time this ever really truly happened?:
“When the LAWS of the state conform to NATURAL LAW
then they are indeed needed and just.”
I think: that’s Never been the case. Ever.
And never will be.
Really?
The laws against murder conform to natural law. The ones against theft, against perjury, against blackmail. They are all perfectly consonant with natural law.
The laws against murder only benefit the state, they do nothing for victims (obviously) nor for the families of the victims.
The same with perjury and blackmail.
The rich and powerful, the well connected, do not suffer the consequences as does the common man. When has that ever been so?
That is not conforming to natural law.
The Law Is Dead
“The Law died because she had to in order to make room for what Bastiat called “legal plunder” which “destroys for its own profit, and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder.” […]
In short, they want the game rigged in their favor and are willing to pay to make that happen.”…
http://www.lewrockwell.com/2012/03/ct-rossi/the-law-is-dead/
“Thomas Paine, in Common Sense, wrote that “in America, the law is king” in reference/contrast to earlier ideas that the king was the law.”…
http://www.lewrockwell.com/2011/03/john-tyner/the-demise-of-the-rule-of-law/
“the king was the law” – That’s what I mean by, I think: that’s Never been the case. Ever.
And never will be.
So long as there’s gooberment, anyway.
Hi Clark,
Sorry, nothing you (or any no-govt libertarian) says will convince me that in our current society, anarchism will work.
But let me see if I can say it again for the 100th time.
“The laws against murder do not benefit the victim only the state”
1. Very simply, ANY law against murder could never benefit the victim, since he’s dead, or his family, since they can never get him back. Beyond that, however, in many cases, you’re just wrong:-
FACT Victim’s family can sue and get compensation for loss of income, grief and pain. Money helps them. It does give them something,
FACT If the state follows through with capital punishment, then the punishment most certainly comports with Mosaic “eye for an eye” – which is surely in conformity with natural law.
FACT The victim’s family gets an investigation that often, if the victim is poor, they would never have been able to afford themselves.
FACT The perp can no longer be sure he can get away with it, because even a cold case can be opened after the victim’s family and friends have moved on.
FACT Rich people cannot always buy their way out of crimes. So they cannot just “off” people and then bribe them..unless they have political connections, in which case they can get away with it, of course….
FACT Just because not all crimes are prosecuted correctly or justly, it doesn’t mean ALL of them aren’t. Even if a third of crimes are correctly prosecuted, hundreds of thousands get the benefit.
FACT Bribery and perjury play a huge part in many trials by the state. Likely, they will play almost as great a part in non-state trials. The reason is that our culture and language are so badly corrupted that, state or not, all application of the law is going to be more or less imperfect.
FACT The present set up is the result of TOO MANY LAWS that do not conform to natural law (no real crime), while REAL CRIMES are ignored.
We have BOTH too many laws and too few, just as we have both too much regulation and too little.
MY RESPONSES TO CLARKE ARE INSERTED BETWEEN POINTS HE MAKES IN HIS COMMENT BELOW.
CLARKE:
It appears to me you’ve given up on the idea, “individuals, not ideologies” what have you replaced it with?
LILA: Not at all. I’m an individual. That is just why I don’t toe any ideological line.
CLARKE
Also, it seems to me anarchism Does work, even now, and in the past:
LILA
I don’t say anarchism might not work in small groups and at times. I am saying it doesn’t work here and now.
For example, a comment by Hot Rod:
@Oxy
“no such oxymorons as “godly anarchists” exist. (i’m leaving out schizophrenics; even then, it’s only one, or the other, at a time.)”
Well that is because you see people and God as the same kind of ruler over people. I unfortunately disagree then as my definition is the same as the prophet Samuel, no government but God:
http://www.lewrockwell.com/1970/01/stephen-w-carson/no-government-but-god/
But it gets even more clear! Eventually, after a period under this Mosaic “anarchy,” the Israelites ask the prophet Samuel for a king.’
So let me be clear that biblical anarchist believe in no government of men, wheareas you believe the true anarchy is no ruler even in God.
Lila: Where did you get that?
Clarke:
I decline to call myself the latter anarchist, and if you are the only definer of such a definition anarchy (which I seriously doubt) then I’m most certain that you’ll be hearing the crickets chirp.
Lila: I think you’re confusing me with someone else.
Clarke:
As almost every non lunatic anarchist, believes in a “natural law”
Lila: Incorrect. A lot of contractarians don’t believe in natural law and still believe in anarchy.
Clarke:
and thus that there is wisdom and judgement in the world to keep things from getting too far out of balance. Otherwise anarchy of course would then be disorder and moral relativism kind of anarchy, that the statist so promote. So I decline your invitation that anarchist means no ruler including God.”
Lila: You keep repeating this. I think it’s perfectly clear that I think there is Divine providence.
But I don’t accept your selective use of the Bible. The Bible accepts human government, although there are ambiguous texts about it.
http://ericpetersautos.com/2013/09/26/emasculization/
Clarke:
RE: “FACT Victim’s family can sue and get compensation for loss of income, grief and pain. Money helps them. It does give them something,”
Um, if the killer was rich, perhaps. And the killer he/she had really bad lawyers. Maybe.
But what happens if the killer was poor?
Wouldn’t you say the usual outcome is the state is the Only one to benefit?
Lila: No. Not at all. That is simply libertarian hyperbole. I’ve known people who’ve had public prosecutors defend them and win. I’ve had recourse to the law and been very successful a couple of times. The law is corrupt but it is not always corrupt. Idealogues get misled by their own mythologies.
Clarke:
RE: “FACT If the state follows through with capital punishment, then the punishment most certainly comports with Mosaic “eye for an eye” – which is surely in conformity with natural law.”
…Making the whole world blind?
Lila: No. That’s Gandhi. I think it would stop quite a lot of crime. The research studies are massively biased.
Clarke:
What if the victims believe in forgiveness and the state proceeds anyway?
Granting forgiveness could be a form of benefit for the family, yet the state benefits from ignoring the family?
Is it anarchy, or natural law?
Lila: If the victim believes in forgiveness then I think the state should back out.
Most victims however want more rather than less, so I think your exception is rather rare. In any case, you can forgive and the state can still carry on.
Clarke:
RE: “FACT The victim’s family gets an investigation that often, if the victim is poor, they would never have been able to afford themselves.”
umm, That one seems to be stretching it a bit. We all know the only thing the gooberment does is mop things up and take photos.
Lila: That’s ideology talking again. It simply isn’t true. I’ve known corrupt incompetent people in the private sector too. I knew a girl who was raped and the prosecutor did a marvelous job and had the guy convicted. Took less than a year.
Clarke:
A real investigation?
Phalease.
Especially for the poor. It’s hard to believe you’d even use that one.
Lila: Because it’s true. Her father was a school teacher who wouldn’t have been able to afford a private lawyer of investigator.
As I said, in theory I’m down with anarchy. But that doesn’t mean I have to pretend that black is white or believe that every single government official is evil incarnate and all of society is just a bunch of innocents persecuted by the state, Those are fairy-tales not political theory.
Anarchy can work, in a society of a high moral caliber of a fairly homgenous nature, I would think, and much smaller than the one we have now. I’m not sure who long it would last thought.
Clarke
RE: “FACT The perp can no longer be sure he can get away with it, because even a cold case can be opened after the victim’s family and friends have moved on.”
I’m not sure what you mean by that.
Lila: You can reopen a murder trial after 20 years, because the state has the ability to keep after something if it wants to. Most people don’t have the wherewithal.
Clarke:
You say, “after the victim’s family and friends have moved on.” So in other words, only the state would receive a benefit? After all, the friends and family have moved on.
Lila: Moved on in the sense of given up. They would be happy that the case was solved. You are grasping at straws, my friend.
Clarke
RE: “FACT Rich people cannot always buy their way out of crimes.”
I wonder how true this is, what the percentage is.
Lila: A lot of them do. I’ve seen it.
Clarke:
RE: “FACT Just because not all crimes are prosecuted correctly or justly, it doesn’t mean ALL of them aren’t. Even if a third of crimes are correctly prosecuted, hundreds of thousands get the benefit.”
But of those third, what percentage is the state the Only beneficiary?
Lila: But that’s because our laws emphasize imprisonment. They could emphasize financial compensation. then people would benefit, right? So that’s culture and the American preference for locking people up.
Clarke:
RE: “FACT Bribery and perjury play a huge part in many trials by the state. Likely, they will play almost as great a part in non-state trials. The reason is that our culture and language are so badly corrupted that, state or not, all application of the law is going to be more or less imperfect.”
I’m thinking about what ‘natural law’ is in relation to that last bit and how it all conforms.
Lila: I’m talking about how to make something work effectively in real life. Not some utopian dream, as bad the communist dream
Clarke
RE: “FACT The present set up is the result of TOO MANY LAWS that do not conform to natural law (no real crime), while REAL CRIMES are ignored.”
I can’t disagree with that.
RE: “We have BOTH too many laws and too few, just as we have both too much regulation and too little.”
Whoa!
We simply have too few laws and too little regulation? For the other half, we’re right back at the beginning, It appears to me you’ve given up on, “individuals, not ideologies”
Lila
Not at all. Read my pieces. I’ve always said that. I don’t believe in this false dialectic between socialist and libertarian. It’s made up by the intelligence services. I am sure of it. No one could be that stupid, so it’s obviously a ploy.
Clarke:
It seems you really have ripped up your libertarian card for good.
Lila I was never your kind of libertarian. Read my blog! I’ve always been a Tory-bohemian in sensibilities and a classical liberal, a minarchist.
I think anarcho-capitalism is a misnomer and linguistically confused.
Clarke:
..So I wonder, what card do you carry now?
Or am I mistaken?
Lila:
The one I’ve always carried. I think for myself.
No one tells me what I should think or how, unless they come down with a harp and I get to put my hands in their wounds.
“Consider someone who takes a picture of her body, for medical reasons, and, by accident leaves a copy on her computer. Say someone gets hold of it and tried to pretend the person sent the image to a porn site. It is easily done.”
s.
Now that’s like the non-sequitur of the year.
Lila: Not at all. Same principle. LACK OF CONSENT.
A woman, along with sexual partner, or perhaps with a photographer present, engages in photographing herself
(Lila: I DELETED this. My mom reads this stuff. Knock off the graphic texts, please.
Also, you made up that bit about a photographer to make it look as if she was doing something intentionally. The boyfriend hasn’t said there was any photographer.)
And complains later. She should have had the sense to obtain a contract for the images, or videos.
(Lila: It was her boyfriend. Do people usually enter into legal contracts with their boyfriends? And by the standards of modern America, that is what a lot of younger people do. It’s the net culture. She is not exceptional sluttish to have done it. Just google sexting. So, if a close friend comes to your house as a guest and then walks away with your watch, you’re to blame because you didn’t get your friend to sign a contract not to take anything. Wow).
What next? Ban literature that includes the worn out N word?
(Lila: Oh lord. No similarity at all. Literature by definition is made for the public. A private picture is by definition private. It’s only porn when it is public. You should try to actually crack open a book of law or political theory. Can you not tell the difference between a PRIVATE and a PUBLIC act? Or CONSENSUAL and NON-CONSENSUAL?)
Sorry, but this idiotic concept is far removed from anything regarding Article I of the Bill of Rights.
(Lila: Well, I beg to differ and so would Eugene Volokh – surely better qualified than you to judge – who has written, accurately, from my own research, that the Framers would have regarded much of what is called free expression on the net, merely libelous).
Good taste is one thing. Producing porn, then complaining about it is another thing.
(Lila: Can you read? She didn’t produce porn. Porn is for public viewing. She sent it to a boyfriend. That is something else. It might not be to your taste, but it’s certainly not pornographic. By definition. It might be obscene to you. But then so are most contemporary sexual practices obscene and most contemporary fashions obscene, by traditional standards.
The average modern woman in the west, at least, would be considered obscenely dressed by most traditional standards. So if your wife or daughter got raped when she went into a traditional culture, should I tell you that it was their own fault for dressing in short skirts and form fitting clothes and making “porn” out of themselves. Bikinis and swimsuits, halter tops, crop tops, shorts, low necklines, tight clothers, make-up – all look pretty slutty to non-Western cultures. So I guess Western women should take responsibility if they get raped because someone else’s cultural standard is different from theirs. Personally, if you take off most of your clothes in public on the beach, I seriously don’t see how that’s different from stripping in a night-club, so does that mean those women are also porn stars in the making? It’s pretty licentious to take off all your clothes publicly, right?
How does that grab you?
So it’s a matter of cultural standards.)
Fuck personal responsibility, right? Everyone is a “victim.”
(Lila: Personal responsibility has nothing to do with it. If I forget to lock my house one day and a neighbor decides to walk in and beat me, it’s still assault. I don’t see why you can’t get the difference between giving consent and NOT giving consent. If she doesn’t want something on the net and didn’t enter into a contract, it’s both fraud and force to put it on the net. You’re just being emotional.)
BTW – I did a Google search for the images after I read an article about “victim.”
My thought was – she wanted everyone to search for the photos. If she’d kept quiet, few people would know.
(Lila: And I guess when your wives and sisters are raped in the third world, I will also suggest that if they complain, it’s because they wanted it and wanted to star in their own rape fantasies.
Strictly speaking, one shouldn’t look at such images any more than one should buy stolen goods.
Do you also google child porn – the children didn’t object to their pictures or demand contracts, did they? Do you also download copyrighted material?
Same thing. Did she agree to put it out there? No. Case closed. Was she foolish. Yes. Do foolish people deserve anything criminal done to them. No. It’s really simple.)