I got a long critical comment responding to my blog post on First Amendment scholar Eugene Volokh’s support for a narrowly defined anti-cyberstalking law. The comment deserves thought, so here goes, with my response in italics:
M. Terry said…

(Quote)

“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.”

(End Quote)

Now that’s like the non-sequitur of the year.

Lila: Not at all.  It shows the same principle at work. A private image was created.  Someone misused the image. In both cases, there was NO CONSENT.

M. Terry :A woman, along with sexual partner, or perhaps with a photographer present, engages in photographing herself

Lila: I DELETED some words you wrote. Knock off the graphic text, please.

Also, you made up that bit about a photographer to make it look as if she had the intention of making the images public. But even her boyfriend hasn’t said there was any  such photographer.

M. Terry: And complains later. She should have had the sense to obtain a contract for the images, or videos.

Lila: It was her boyfriend of 3 years, remember. And she was 23 at the time. Do people usually enter into legal contracts with their boyfriends?

By the standards of modern America, this is what a lot of younger people do. It’s Internet culture. She is not all that exceptional. Just Google sexting.

What you are arguing is that 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. Is that reasonable?

M. Terry: What next? Ban literature that includes the worn out N word?

Lila: Now, that really is a non-sequitur.

There’s no similarity at all between the two instances.

Literature is created with  the intention that someone will read it. It is intended to be public

Also, to be deserving of the legal protection given to art/literature,  a  piece of writing usually has to have some verifiable artistic content, even if slight.

Porn, especially unintended porn, is a different category altogether.

A private picture becomes porn only when it’s made public.  Porn (at least, the kind that is adjudicated) is a sexual act that is spectacular –  that is, created for public viewing.

So you are eliding the legal and moral difference between a PRIVATE and a PUBLIC act. And  the difference between a CONSENSUAL and a NON-CONSENSUAL act.

M. Terry; Sorry, but this idiotic concept is far removed from anything regarding Article I of the Bill of Rights.

Lila: Name-calling is an admission that you don’t have arguments.

Eugene Volokh  is well-qualified  to judge  and he has written that the Framers would have regarded much of what is called free expression on the net merely libelous, even though the Framers also didn’t create a right of privacy.

M. Terry:

Good taste is one thing. Producing porn, then complaining about it is another thing.

Lila: Her good taste or judgment or lack thereof is irrelevant, because it doesn’t rise to the level of contributory negligence.

One more time. She didn’t produce porn. She was engaged in a private sexual interaction.

Porn is for public viewing. She sent it privately to a boyfriend.

It might not be to your taste, but it’s not , by definition, pornographic.

Her private actions might offend your moral sensibility, but that does not give you a right to deprive her of the legal protection of her life and property (and being able to hold a job is included in that word).

Her private action might be repugnant to you. But so are most contemporary sexual practices repugnant, and most contemporary fashions obscene, to traditional observers.

The average modern woman in the west, at least, would be considered obscenely dressed by most traditional cultures.

So I ask you, do you consider women like that to be voluntarily participating in their degradation and therefore not deserving of legal protection should someone threaten their professional and personal lives?

Because that is what you’re arguing.

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 clothes, make-up – all look pretty slutty to traditional cultures.

So I guess Western women should take responsibility for it 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 don’t see how that’s different from stripping in a night-club. Seriously.

So does that mean women on beaches are also porn stars in the making?

Stripping in PUBLIC is surely more offensive to other people by definition than photographing yourself in PRIVATE where other people aren’t involved.

So Holly Jacobs, in my view, did something far less provocative than millions of Western women do daily, when they take their clothes off in public on beaches, and let themselves be photographed by strange men (and women).

But their actions are perfectly acceptable and not offensive to you, even though they are done in public.

Personally, I consider books like Naomi Wolf’s recent one,  describing the author’s sexual history and  body parts,  a kind of soft- core porn, yet no one would argue that the author doesn’t deserve the protection of the law if someone cyberstalks her.

So it’s a matter of cultural standards. And it’s a matter of differentiating between private acts and public ones.

M. Terry: 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, regardless of my carelessness.

If she doesn’t want some image on the net and didn’t enter into a contract, it’s both fraud and force to put them on the net.

M. Terry:

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 women are raped in the third world and they complain, it’s because they wanted it and wanted to star in their own “native” 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.

This case isn’t hard.

Did she agree to put it out there? No.

Was she foolish?  Yes.

But no more foolish than thousands of teens and twenty-somethings these days.

Do foolish people deserve crimes committed against them?

No.

Otherwise, each time you exceeded the speed limit, ate too much sugar, lost your temper, or did any of the foolish things we all do, you would deserve to have a crime committed against you.

Case closed.