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.
Filed Under: danny cevallos, deterrence, facebook live, filming crime, murder, streaming