Over at Foseti’s there was some slight discussion of the new fad for anti ‘revenge-porn’ laws, or some kind of liability for the unauthorized dissemination of intimate obscene recordings. The proposal is problematic for several reasons – cultural and moral, for sure, but especially legal.
For one, it flies in the face of the controversial but long-standing Third Party Doctrine. If you give something private to anyone, absent an agreement or law forbidding further dissemination, you lose control over it. (Though, as Orin Kerr will tell you, there are some statutory exceptions and protections).
For another, there are problems with interpretation and drawing lines. If I take a photo of you at the party and you’re drunk and doing something embarrassing and I publish that to the world, and in your distressed shame you do something stupid to yourself, am I liable? What if it were you who took the picture and sent it to me? Do you have to be totally nude? Topless? It’s hard to say. There are also first amendment issues at play.
And what about inadvertent release? Quick personal story – my father passed away many years ago and, being the eldest son, it became my task to examine and settle his estate. Primogeniture survives at moments like these.
When I was going through his collection of private papers I found some nice Instamatic Polaroids of an extremely attractive young woman not my mother wearing nothing but what God gave her. But I couldn’t tell you the date when those photos were taken and whether they were pre or post-nuptial. Way to go pop? Either way it makes me smile.
Obviously, he thought it worthwhile to keep the images, and that’s probably because she had a magnificent rack that he fondly remembered vigorously motorboating the minute after she let him take (and keep) those pictures of her. And now I get to look at them too. Maybe I scan them and post them on this blog or facebook someplace, and she finds out. Am I Liable? Is my father’s estate liable?
Now let me add a wrinkle. What if our hypothetical Lady Juliet takes a few selfies and hands them to Romeo only after his agreement to her explicit condition that it is exclusively for his enjoyment and he is not disseminate it further. But then they get in an argument, and Romeo’s friend Gutenberg offers him some payback. “Give me the photo and I’ll publish it in the Verona-Times evening edition.” Gutenberg pays Romeo, and all the locals pay Gutenberg handsomely to get a glimpse. Juliet is humiliated and does herself in, and the entire family Capulet is ruined. Romeo is in hiding in Russia fearing the vendetta they’ve placed on his head, but Gutenberg is doing pretty well.
Now what do you think about the propriety and legality of what each party has done? Most people would say Romeo at least, and perhaps also Gutenberg, are liable for wrongdoing. Let’s say Romeo is tried and lies, “I don’t know where Gutenberg got them, but it wasn’t from me!” Whether Gutenberg is also liable for anything is a secondary matter. The primary matter is whether we should even be allowed to subpoena Gutenberg and have him reveal the identity of his source.
But this is how some journalists, or their sponsoring media corporations, make their money. In fact, the unauthorized disclosed of confidential government materials for profit – enabled by leveraging personal contacts with insiders – the press equivalent of insider trading – is the entire business plan.
If I freely, and without compensation, tell you a bit of private (non-governmental) information not generally known, for which no one has made me sign an explicit non-disclosure agreement – “Psst. Erbitux didn’t get FDA approval because it was horribly named, you might want to sell ImClone stock now before everyone finds out” – and you act on it (a voluntary exchange between willing buyer and seller in a liquid marketplace with no misrepresentations made) then the government will actually send you to jail even if you are a self-made, popular billionairess socialite, and even though it’s hard for legal scholars to agree on whether you actually harmed anyone, who they were, or by how much.
But if you work for the government – that is, you volunteered to be employed by the organization, follow the law and the rules of your job, and you took their money – and you promised not to tell any unauthorized person information to which they had no legal right, and then you tell a corporate employee protected with the magical amulet credential of ‘Journalist’, then suddenly everything changes. And even if the Attorney General gets a warrant from a judge to get the phone record evidence of law-breaking by reporters, the rest of the press goes nuts with calls for special solicitude. By the way, anybody hear whether Snowden’s offered to give all his dirty government money back?
Reporters, like anyone else, and while professing adherence to ideologies of equality, think they’re special and should be exempted from generally applicable laws. Because they’re the good guys doing good things … or something. Thus we have the obscene absurdity of opinion-influencing corporate propaganda institutions owned primarily by a few wealthy individuals, such as the New York Times, decrying the Citizens United result because now other rich individuals and the corporations they own could play public political-manipulation too. What really stings is that they prefer to do this through television ads, which are still much more influential for short-term voting results than, say, what’s printed in the Times.
Likewise, there now sits in Congress a ‘reporters’ privilege’ shield-law bill resuscitated from the grave by the recent DOJ actions and the anti-privilege holding in the Risen decision, the Free Flow of Information Act. The Supreme Court and lower federal appellate courts have ruled repeatedly since 1972 in Branzburg, (5/4, ‘natch) that the First Amendment has no special ‘reporters’ privilege’ in the press clause. In other words, SCOTUS narrowly takes a pass on changing the law this time, which forces Congress to write legislation and vote. What a bother!
So, if we’re going to change the rules of evidence to make journalists and reporters exempt from general testimonial requirements and equivalent to priests, psychologists, spouses, and attorneys (well, ok, a slight exaggeration – nobody gets as much leeway as lawyers, let’s not get carried away), then that brings up the sticky matter of exactly who qualifies as a ‘journalist’.
To the bat-text, Robin! S.987:
It is here that we find the parliamentary legal terminology where a statute gets to define its own jargon. Here the key words are ‘covered person’ and ‘compelled disclosure’ and ‘protected information’. Section 11, Part 2 (abridged and outlined for comprehensibility, emphasis added for words of legal import):
The term ‘covered person means:
Intent: to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interestPattern of Behavior: Regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters
…(ii) has such intent at the inception of the process of gathering the news or information sought; and
(B) includes a supervisor, employer, parent company, subsidiary, or affiliate of a person described in subparagraph
Well, at least Bill Gates will never have to testify when Rachel Maddow finally spills the top secret beans about the powerful coterie of lesbians at DHS.
The nature and timing of the requisite intent are interesting but matters for another day. The key word is ‘regularly’ – which, as Senator Feinstein tells us, means that being a reporter is your paying day job.
Which, means that us pseudonymous internet hobbyists are – like our Lady Juliet, Audrie Pott, the buxom woman in my father’s photography, or everybody else on ugotposted – uncovered persons.
Which is not just unfair. Life is often unfair.
No, it’s worse than unfair, it’s both obsolete and a lie.
Because, as most people around these parts know well, if you want actually true news, you’ve got to get it from “bloggers [which] have no check and balances” as opposed to Dan Rather who had all kinds of fact-checkers and balancers at his disposal and still came up with this:
Now I, dear reader, will not be telling you anything that is classified. But bringing us up to President Obama’s present proposal to launch some TLAM’s, perhaps against Syrian Air Defenses like their S-200’s, I’ve found that the internet hobbyists have, once again, in both their accuracy and time-consuming in-depth research, utterly outclassed the mainstream media in their reporting.
In this vein, I’d be remiss not to mention Chuck Ross’ (Gucci Little Piggy), terrific work on the whole latest Hate Hoax at Oberlin. Professor William Jacobson at Legal Insurrection has also been doing yeoman’s work covering the matter, and covering the cover-up.
If anybody deserves privileges, protections, or special exemptions, it’s these people. Instead, what we’re likely to get is a law which grants a special monopoly of get-out-of-jail-free cards to the tiny subset of individuals working for the tiny remnant of solvent news organizations left in the world. They will get all the leakers to themselves, because, after all, they’re the only ones that can credibly promise not to rat you out. Also everybody at all the subsidized / state-supported outlets like Al Jazeera, People’s Daily, Russia-Today, Agence France-Presse, and don’t forget the BBC. ‘Agents of a foreign power’ indeed.
Whatever mainstream journalism that ever existed that might have been worth protecting with special new laws died a long time ago in the West. Kind of like the presumption of a woman’s reputation for chastity and modesty.If Journalists want to defend themselves from participating in procedures stemming from unauthorized disclosures, they’d better get used to the classic defense that’s likely to be popular with the guys charged with revenge-porn given how indiscreet people have become – “everybody’s already seen it; no harm done.”