MPAA Actually Steps Up To Defend Free Speech (Really!); Gets Attacked For It

Free Speech

from the the-vampiric-broken-clock-emerges-from-the-shadows dept

The MPAA doesn’t often speak out about legislation… not unless it’s directly involved in the crafting (remember SOPA?) Issues that affect a much larger percentage of the public are considered none of its business. It will make noise from time to time about fair use and the public domain — usually arguing there should be less of both, but sometimes speaking out in defense of these IP aspects.

So, it’s rather odd to see it a) speak out on pending legislation and b) come down on the right side of it. (via Scott Greenfield)

The Motion Picture Association of America, the movie industry’s major lobbying arm, has for what’s believed to be the first time weighed in on a revenge porn bill: Minnesota’s HF 2741. As there is no federal bill or law specifically prohibiting the practice, the biggest battles against revenge porn take place in state legislatures. Currently, 27 states have laws restricting or banning revenge porn.

At issue is a provision in the bill that the person who releases such photos or videos doesn’t have to actually desire to harm the person depicted for it to be considered a crime. In an open letter, to Minnesota legislators, the MPAA worries that this could hamper the distribution of explicit but newsworthy material, like “images of Holocaust victims, or prisoners at Abu Ghraib.”

In a statement provided to Vocativ by spokesperson Chris Ortman, the MPAA defended the organization’s stance as an attempt to strike a balance between free speech and privacy: “While we agree with the aims of HF 2741’s sponsors, we are concerned that the current version of the bill is written so broadly that it could have a chilling effect on mainstream and constitutionally-protected speech.”

As Scott Greenfield notes, it’s rather painful to see one of the 21st century’s great villains take a logical, clear-headed stance on an issue — especially one where its stance may do more damage to it than simply remaining silent. After all, many actresses found themselves on the receiving end of what’s termed “non-consensual pornography” after being hacked. Nude photos of celebrities were scattered across the internet, affecting some of Hollywood’s biggest stars.

“I imagine that so many of the movie star victims of the celebrity hack would be horrified that the MPAA is taking this stance,” Carrie Goldberg, a Brooklyn attorney who specializes in revenge or nonconsensual porn cases, told Vocativ.

They might be horrified, but the bill being pushed through Minnesota’s legislature isn’t a good one. Goldberg thinks it’s a good one because it’s her cause. She’s none too thrilled that the MPAA won’t back a bill that doesn’t stipulate that the unauthorized distribution of intimate photos be linked to malicious intent.

“The stance that they’re taking is for a more narrow law, one that requires the intent to humiliate and harass victims. And Jennifer Lawrence and Kate Upton are exactly the type who would be excluded from this law,” Goldberg said.

The Cyber Civil Rights Initiative — the group led by Goldberg — has issued a point-by-point response to the MPAA’s statement on the bill. It’s not written by Goldberg, but rather by law professor Mary Anne Franks – someone who is almost always on hand to defend similarly awful legislation.

In her response, she goes toe-to-toe with the MPAA, leading off with a quote from a Supreme Court decision that seems to support her view that this bill — as written — is Constitutional.

The Supreme Court has stated that while “laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect – at best a prediction – cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. … overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601(1973).

Scott Greenfield points out that Franks has conveniently excised the part of this Supreme Court citation that directly contradicts her interpretation of it.

This is a rookie trick for lawyers. The sort that will usually result in a judge ripping a lawyer a new one for trying to sneak a lie past the court. But since Franks has never been in a court, and Collier wouldn’t have a clue about rookie lawyer tricks, it’s all new to them. One nifty trick is using ellipsis to conceal portions of quotes that you want to conceal from the unwary. Whenever someone uses ellipsis, it’s a red flag.

So what is the full quote from Broadrick?

It remains a “matter of no little difficulty” to determine when a law may properly be held void on its face and when “such summary action” is inappropriate. Coates v. City of Cincinnati, 402 U. S. 611, 402 U. S. 617 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice, and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct, and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face, and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U. S. 165, 394 U. S. 174-175 (1969). To put the matter another way, particularly where conduct, and not merely speech, is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.[Emphasis added.]

So she left out the part about “conduct, and not merely speech.” Shocking. There are plenty of other aspects of Broadrick that make it wholly distinguishable, but no need to go there. This omission proves the lie, not that Franks gives a damn.

And “conduct, not merely speech” is the crux of the MPAA’s opposition to the bill. The MPAA doesn’t want revenge porn to go unpunished, but it only wants actual revenge porn punished — not everything else that might get pulled in by the broad wording and lack of a malicious intent requirement. Franks decision to excise the very element the MPAA was concerned about is completely disingenuous, as it places her on the side of the Supreme Court, even when the Supreme Court doesn’t agree with her assertions.

Filed Under: free speech, intent, minnesota, revenge porn
Companies: mpaa