Actual Lawyer Thinks That Criminalizing Showing Murder On Facebook Will Prevent Murders On Facebook

from the where-did-you-get-your-law-degree? dept

Earlier this week, we wrote about the silly take at Wired, more or less suggesting that it was somehow Facebook’s issue that a troubled individual took a video of himself randomly killing an elderly man and then uploaded the video to Facebook. Unfortunately, others have had similar takes, including the New Yorker’s Steve Coll, whose piece is mostly balanced and admits that it’s basically impossible for Facebook to prevent this thing… but then at the end ignores all that and says, effectively, “Well, Facebook’s big so it has no excuse not to do something.

That is a fair and restrained assessment, but Facebook cannot expect to plead growing pains or a lack of resources for much longer. At the end of last year, the corporation reported holding almost thirty billion dollars in cash and marketable securities; its annual profit exceeded ten billion dollars for the first time. Facebook can afford to slow down and take on more of the risks associated with curating content?the risks of not doing so being increasingly glaring. Its engineers might, in addition to their habitual writing of improved algorithms, consider the durable oath of a profession that has long wrestled with the kinds of ethical quandaries that arise from innovating in the pursuit of the greater good: first, do no harm.

That’s one of those things that sounds good to someone who hasn’t thought through the actual consequences of what they’re saying. When you argue that Facebook should “slow down” and “take on more risks associated with curating content,” you’re arguing that Facebook should censor more content. Think of how that plays out in reality. Because we know already: every time Facebook takes down “good” content, the same media folks start bitching and screaming about how Facebook is so bad at moderating content. Remember Facebook blocking Napalm Girl? While Coll didn’t address that issue himself, just months ago, he raved about the importance of Napalm Girl and how adults need to see this kind of thing to “pause and reflect upon the costs of war.” But, apparently having them confront murder is a step too far.

But… that is not the worst take on this whole thing. So far, that award goes to Danny Cevallos, a legal analyst for CNN and apparently a real practicing criminal defense attorney. His argument is not to blame Facebook… but to criminalize posting murder videos to Facebook. It’s not often that you see a criminal defense attorney arguing for more crimes, but here we are.

To be fair to Cevallos, he’s not the first to come up with an idea this dumb. As online video became more popular, and as stories emerged of people (often young kids) filming themselves doing stupid things online, various grandstanding politicians have often argued that filming crimes should be illegal, arguing (often without any evidence) that the only reason these people were doing stupid/illegal things was because of the draw of being able to film them and post them online. This reached a fever pitch a few years ago when a legislator in South Carolina picked up on an exaggerated moral panic about the idea of the “knockout game” — in which people filmed themselves punching unsuspecting people — and wanted to pass a law saying that it was illegal to film a crime.

That’s more or less where Cevallos goes, though he’d limit it to just murder videos:

Use the law to deter this sort of depraved predator. We can criminalize the criminal’s act of broadcasting his crime.

In for a bit, Cevallos digs in deep:

When it gets into the realm of a horrendous crime like the recent shooting, what is to be done? As heretical as it is for a criminal defense attorney like myself to say, deterrence could help. More criminal legislation: enhancements, penalties, mandatory minimums.

And how the crime and its victims are legally framed is key. Whether it’s murder or simple assault, acts of violence that are also posted online create additional victims in the audience: the public at large. Broadcasts of intentional violence intimidate a civilian population, just as terrorism does.

What?!? Now he’s comparing broadcasting a murder tape as terrorism? Who exactly is intimidated? Will it horrify people? Yes, absolutely. But that’s not illegal, nor should it be.

Also, there’s this. How the hell is this actually a deterrence? What kind of person will say “Well, I was going to shoot that guy and broadcast it on Facebook, but since broadcasting it is illegal, I guess I won’t.” Really. Who? If you’re going to murder someone, you’ve already kinda committed to breaking basically the most serious law we have. Somehow, I doubt that the additional charge of “Oh, and he put it on Facebook,” is going to change the incentives much.

And, then, of course, Cevallos starts digging deeper with a really terrible First Amendment analysis (especially for a media company like CNN to publish). All it’s missing is the explicit use of the bullshit “fire in a crowded theater” trope.

The challenge here is that criminalizing Facebook broadcasts of one’s crimes does potentially infringe upon one’s freedom of speech about those crimes. The US Supreme Court held that the original Son of Sam law ran afoul of the First Amendment, because the suppression of speech was not narrowly tailored enough.

However, the First Amendment has plenty of limits, and today, almost all the states and the federal government have laws prohibiting those criminals who plan to profit from their crimes from doing so. The ability to profit still shouldn’t be constitutionally-protected.

Pretty simple rule of thumb: your First Amendment analysis is bad and you should feel bad if it’s basically limited to “Well, there are exceptions to the First Amendment, so surely the exception I want should be fine.” Hell, it’s near the top of Popehat’s famous “censorship tropes” in discussions of free speech.

But Cevallos isn’t done. After already carving out a new exception to the First Amendment, he then also argues that posting your own murder video maybe would fit under the very limited and extraordinarily narrow “obscenity” exception to the First Amendment:

It’s a tougher question whether “killing videos” could be additionally penalized as obscenity. This is because the term “obscenity” generally applies to depictions of sexual acts. The Supreme Court has held that violence alone is not obscenity.

On the other hand, obscenity may extend to deviant acts that are not sexual, and images of extreme cruelty alone could possibly be obscene, as evidenced by a case involving videos of animal cruelty. Indeed, “animal crush videos” ? which are every bit as horrific as they sound ? may be outlawed, even if sexual activity is not depicted.

Again, the legal analysis is… lacking any substance whatsoever. It’s basically “Well, animal crush videos can be outlawed, so sure, murders on Facebook too.”

Criminalizing the broadcast of crimes like Robert Godwin’s shooting death is doable. It won’t prevent these attacks, but it will deter them.

It will deter them… based on what evidence exactly? Just in your head?

Finally after all that nonsense, Cavallos points out just about the only accurate thing, and hilariously calls it “perverse”: the fact that what these videos do is provide all the evidence law enforcement needs to prosecute individuals for the crimes they’re committing on video:

The perverse upside is that social media creates a treasure trove of evidence: the criminals of social media may harm the society that views them, but they often assist the authorities in prosecuting them.

Yeah, that’s not “perverse.” That’s why the rest of your article makes no sense. The video is evidence of a crime. Layering on another, much lesser crime just for posting the video doesn’t deter crime. It deters people making it easier to catch, arrest and convict themselves of committing crimes. CNN needs better legal analysts.

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Comments on “Actual Lawyer Thinks That Criminalizing Showing Murder On Facebook Will Prevent Murders On Facebook”

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hij (profile) says:

Maybe grandstanding pols is a problem too?

various grandstanding politicians have often argued that filming crimes should be illegal, arguing (often without any evidence) that the only reason these people were doing stupid/illegal things was because of the draw of being able to film them and post them online.

I suspect that the only reason these folks are grandstanding in this manner is that they know it will draw attention. Perhaps we should limit the ability of people to post stories and videos of themselves clutching their pearls as a way to draw attention to themselves.

Ninja (profile) says:

Maybe we should remove the definition of murder from the dictionary and prevent people from using the word murder. It’ll surely prevent all murder-y activity once it’s done, right, right? Or even better, the Govt can use their own magic dictionary of secret interpretations and simply create another official meaning. I suggest using the same meaning as love for added effectivity.

“I murder you honey!”
“Aw, how sweet!”
And everybody lived happily ever after in a positively word-that-shall-not-be-mentioned world!

Anonymous Coward says:

Re: Re:

None of the other mainstream journalistic outlets in the US are any better. Most, if not all, of journalistic reporting is done by … wait for it… journalists. And most journalists take what?… anyone? Journalism (or English) as a degree in college. They are not qualified to write articles on technical topics of any sort at all, whether it’s the law, science, technology, or anything else. They sometimes don’t even get mundane news reporting correct regardless of the outlet. Their editors are no better, sometimes worse, because breathless OMG! type headlines means ratings, ratings means money, money means they keep their jobs. There is no incentive to check facts with experts unless the “expert” advances whatever agenda that news network wants to present.

DannyB (profile) says:

How that law would actually work

Suppose person A commits a murder.

If person A then puts that murder on Facebook, then this law is not going to prevent that. The murder itself is far worse than the act of putting it on facebook. It’s like criminalizing throwing chewing gum on the floor during a robbery.

If person B records A committing a murder, then criminalizing the putting it on facebook might deter B, assuming B committed no other crime and is not an accessory to the murder.

Now suppose that person A is a police officer. It would now seem that person B putting that recording on Facebook, YouTube and everywhere else suddenly has become a public service. That evidence needs to be spread far and wide before the police can disappear it, and disappear person B.

Anonymous Coward says:

Criminalizing the posting of a crime won’t deter it, but preventing the posting in the first place could.

Sports used to have a problem during televised games of people running on the field to get attention. The networks stopped showing those people, so now it happens less.

We have seen demonstrations that are fine and peaceful, right up until the time the cameras show up, and then they turn into riots.

Idiots attack people with the intent to post it online (for whatever reason they come up with in their demented brain) to become famous.

If you can prevent those videos from ever seeing the light of day, then you will reduce crime, but to criminalize it after the fact won’t do anything, because they have already reached their goal.

Anonymous Coward says:

Re: Re:

If you can prevent those videos from ever seeing the light of day, then you will reduce crime, but to criminalize it after the fact won’t do anything, because they have already reached their goal.

Yeah, sure…cops have been doing it for years and they’re still beating the shit out of people.

If it won’t deter them, why would it deter ordinary citizens?

Anonymous Coward says:

Re: Re: Re:

Because unlike cops, the people that film things like this is doing it for attention, to become famous.

The guy filmed himself committing murder, and the audio mentioned a woman. I would imagine he was doing the murder to punish the woman.

Take away the publicity, and you take away some incentive. People ran on the field to get on TV, after TV stopped showing them, and people stopped running on the field as much (not completely, since they still had 40K or so in the crowd seeing them (11K for Met Stadium).

End the fame and publicity, and you reduce the act, at least those looking for fame.

Anonymous Coward says:

These damn lawyers are involved in the paperwork that leads to the development and selling of ads that promote games that millions of minds tap into without going any further – unfortunately, these games have players do the same exact things that Stevens did and more. For nearly two decades, that same lawyer club has undergirded the COMMERCIALIZATION of violent entertainment in tel-lie-vision, movies, and simulation games that have players virtually shooting random people in the head, decapitating, stabbing, bombing, etc … and they’re worried about people posting real tragedies? I’d rather have a dime than a dozen of those selective assholes.

Blame the criminal, not the tools that are abused by the criminal.

Anonymous Coward says:

I think we should require that all murders record themselves committing their murder and post it on Facebook. We’ll make it a crime if you murder someone and don’t do that. Of course murder itself will remain a crime. Think about it, people will be thinking about murdering someone, but then they’ll go, “Oh wait, if I murder someone I’ll need to record it and post it on Facebook. But if I do that, then they’ll know it was me, and arrest me for murder. I better not murder anyone.”

I just solved murder.

Anonymous Coward says:

Mike’s just soft on killers. (Probably, especially on children-killers.)

What he should be doing is praising this legislator for an innovationalist, technology-based attack on a modern problem. Because this opens whole vistas on dealing with social problems. Look at all the solutions to real problems that this kind of ensight enables:

(1) The families of victims to seek restitution from the entity that profited most from the crime (Facebook, which placed ads–presumably for sharp and/or heavy gardening implements–around the murder video). Isn’t that a good thing?

(2) Analogous solutions for other crimes abound: e.g., using a cell phone while dealing drugs; wearing lipstick while soliciting for recreational semen-collecting; reciting the Koran while committing genocide; riding a skateboard while listing to downloaded artificial static; using artificial igniters and accelerants to burn down orphanages.

Surely any deprecation of technology I don’t use is a good thing in its own right, and a contributon to immanentizing the eschaton.

That Anonymous Coward (profile) says:

We have the death penalty in some states, and life in prison in others for people who commit murder.
Not sure how any enhancement to those is supposed to accomplish anything.

We let death row inmates die, then bring them back & kill them again over and over a few times?
We keep the corpse of someone who died after serving a life term in for another 80 years?

Perhaps its time to stop playing the crime enhancement game.
It exists to appease the thirst for blood the public has.

Someone commits a crime, does their time, we still brand them ex-felon and make it impossible for them to return to society… then complain they aren’t trying hard enough to fit in.
We are pleased that they are still being punished after the sentence and the pound of flesh has been repaid, because we want more… but won’t admit it.

Perhaps we should consider prison time for the people who saw the video after it was uploaded but did nothing to alert authorities.
Perhaps we should consider prison time for every media outlet who ran segments of the video for glorifying it.

We can NEVER stop all crime, unless we all live in sealed boxes & can’t interact with other people.
We don’t need “enhancements” to make a criminal face 250 years, to get them to take a deal.
We need to consider that removing any hope of redemption, causes more problems.

We need to rethink how Justice works in this country & stop trying to keep being punitive after the sentence has been served.
There also needs to be serious thought given to the fact our mental health care system was gutted & not fixed as promised. That some people in prison should be getting therapy and meds, because they were out of their minds.

We are a vengeful people, just look at the less than amazing response to the DA refusing to charge the guards who boiled an inmate to death for having shit on the floor. He was mentally ill, was getting no care, ended up in prison… only to be boiled alive.
What could this man have done that would justify being boiled to death & those that did it to not be charged with a crime?

The system is broken & rather than focusing on feel good hype of enhancements & make FB responsible, lets deal with the hard stuff of overhauling the entire system & the willful blindness that it fails us time and time again.

That Anonymous Coward (profile) says:

Re: Re: lets deal with the hard stuff of overhauling the entire system

There is that, but also the human tendency to scream we need to do something!!!
We’ll add special extra screwing if we think they killed someone because of their race & then say racism is fixed.

We are toddlers who politicians hand an iPad with a cat video playing, & we pay attention to the cat not the real issues.
Its messy & no fun, but to pretend we can just keep bolting more things onto a broken system and expect that THIS TIME it’s gonna fix it despite the last 14 failures.

They are trying to execute a man to beat a deadline…
Ignoring no DNA testing, Judge sleeping with the Prosecutor, ineffective consul, a drunk for his appeal who was opening slurring & repeating himself in court… and they pretend justice was served.

Its hard work, but we have to reform it. Instead of playing up the criminals deserve the worst, make people ask themselves would they say this should happen to a close family member in the same situation. Remove them from the iPad cat video bubble & remind them these are real people & this could happen to you or someone you love.

Anonymous Coward says:

Just remember…

If we criminalize he act of people committing murdering and posting them on Facebook, then only criminals will commit murder and post them on Facebook.

What we should do is criminalize the act of murder, that way we won’t have this issue at all, and all the rainbows and unicorns will be safe.

*Problem solved*

John85851 (profile) says:

We are a vengeful people

I know this is getting a little off-topic, but I completely agree with the phrase above about how we’re a vengeful people.

Has anyone been following the case of Markeith Lloyd, here in Florida? He shot a number of people, including some police officers, then ran from police, and then was captured.

It turns out that the State Prosecutor handling the case announced she wasn’t going to seek the death penalty.
It didn’t take long for pundits to argue that she shouldn’t do this, even though it’s completely within her right as the state prosecutor. I can’t say for certain, but she’s probably chosen not to seek the death penalty in other cases, but none of those were as high-profile as this one.

Then, governor Rick Scott fired her… because she refused to seek the death penalty for someone who shot police officers. We can argue whether the death penalty is good or bad, but now we have a situation where the governor will step in if he doesn’t like how the state prosecutor approaches a case.

The shooter will go to jail for life and probably never be released, but the people of Florida want their pound of flesh for what he did and the governor will make sure he’s executed if found guilty.

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