Would the anti-revenge-porn bill that passed the New York State Senate make it a crime to report sexual harassment if that report included pictures of your boss or congressman's genitals that they'd sent you? The bill number is S5946A-2013.
Perhaps without realizing it, you have asked a particularly difficult question.
I’m not a huge fan of such laws — the bills and proposed laws I’ve seen tend to be terribly written, poorly thought-through, and even hysterical. More the product of a shrill emotional crusade than any thoughtful attempt to craft a legitimate solution to a legitimate problem. They typically look like they’d cause more injustice than they’d prevent. Including criminalizing perfectly legitimate and indeed laudable conduct such as that you describe in your hypothetical.
On first glance, however, the New York bill you refer to would avoid such problems with a seemingly robust mens rea element — To be guilty of the crime, the state would have to prove that you intended to harass, annoy or alarm someone. They would also have to prove that you intentionally disseminated the pictures without the explicit consent of the person concerned.
Intent is the highest level of mens rea; the highest hurdle the state must jump. So presumably this would be the hardest to prove.
At first glance, the law would really only criminalize morally despicable acts of actually trying to harm someone by posting nude pix of them for all to see. It wouldn’t criminalize other circumstances like reporting someone for doing what Anthony Weiner’s supposed to have done.
In real life, however, the fact that you did something tends to be offered as proof that you intended to do it. Such bootstrapping is illogical at best, but far worse is the practical result of shifting the burden of proof onto you the defendant. Now, all of a sudden, you have to prove that you didn’t intend to harm anyone. A hard thing to prove when the “victim” is sitting there saying they were harmed and the fact of your report proves that you had it out for them.
And by reporting the nude-picture-sender, aren’t you in fact trying to at the very least “annoy” him? You want him to get in trouble! Pretty annoying, I’d say. You’re guilty!
And that “explicit consent” phrase should give anyone pause. Let’s say you’re on Tumblr. You see a beautiful, or funny, or intriguing nude photograph. It’s been reblogged 21 thousand times. You reblog it.
Did you have explicit permission from the person in that photo? No. Guess what — you could now be charged with a crime. One that in all likelihood will put you on the sex offender registry.
Oh, you didn’t mean any harm by reblogging it? Tell it to the jury. Maybe they’ll buy it. Then again, maybe they won’t. Most people who go to trial tend to lose, innocent or not. After all, they wouldn’t be there if they hadn’t done something, right?
Some might suggest that the state would never go after someone like you. Those with actual experience in criminal law would disagree — you’re actually the low-hanging fruit. You’re easy prey for a prosecutor looking to get re-elected or a cop looking to make some easy numbers. Also, witchhunts happen. They’re nasty. And they punish the innocent with just as much gusto as the guilty.
I could rant on this forever, but it’s after midnight and I’m in stream-of-consciousness mode already. And I haven’t even gotten to the First Amendment issues yet. It should be obvious to anyone who’s finished their first year of law school that much of the dissemination that falls under such laws’ umbrellas is completely protected speech.
Your hypothetical alone would be speech in the public interest, right? But are you willing to bet your life that the cops and prosecutors and courts will agree? The law itself as written doesn’t make any exceptions for protected speech whatsoever. Are you willing to be the test case to see whether it stands constitutional muster — by which I mean, lose the hearings before a trial judge unwilling to buck the legislature, lose at trial, go to jail, and fight it in the appellate courts to make your point?
And I don’t see any other exceptions either, for that matter. The innocent reblogger is damned. The whistleblower is damned. So is the medical professional. The journalist. Anyone else the witch hunt du jour wants to take down.
I’m going to bed. But here’s the tl;dr: Be wary of criminal laws rammed through by crusaders. Road to hell, good intentions. Innocents suffer.
Is the Plain View test basically the same as the difference between a Spot Check and a Search Check in Dungeons and Dragons?
That’s not a bad analogy. It’s not perfect, though. In D&D, the distinction turns more on how you were looking, whereas the Fourth Amendment will focus more on whether you were invading someone’s privacy.
IIRC, in D&D it’s a search if you’re actively looking for something, and a spot if you just happen to see it. In Fourth Amendment law you can passively spot something and it’s still a search if you saw it while invading someone’s privacy.
And you can have plain view of something you’re actively looking for, so long as you’re not invading anyone’s privacy to see it.
If FLIR devices become more commonly used, then that would reverse the 2001 ruling on police using them to look at peoples' houses? See the recent NPR article and your comic at p=2201.
It’s an intriguing question, and the honest answer is “it’ll depend on who’s on the Supreme Court when the issue comes up again.”
On the one hand, there are definitely judges who think society is better off the more evidence of crimes the police are allowed to gather. Such judges are more likely to say “aha, these gadgets are in common use, so you have to expect that people are using them, so you don’t have that privacy interest any more.”
On the other hand, there are judges who think that, just because a bit of technology is out there, that doesn’t mean the police ought to be allowed to use it without a warrant. Think GPS tracking, internet tracking, etc.
And on that same other hand, there are conservative judges like Scalia who say that by definition you have a privacy interest in whatever is inside your home, so even if other people could sneak a peek at what’s in there the police still can’t.
I’m being way too glib here, so don’t quote any of this in a legal brief, but you get the point.
My guess is most judges would balk at anything that lets the government see what’s inside your home. Just because it might be visible to suitably-equipped citizens, that doesn’t mean you can’t continue to expect it to be private.
a question about self defense with non deadly force vs deadly force. In a case where you're say, a disabled, elderly man, and some 300 pound body builder is going to take a swing at you, you're not allowed to shoot them with a gun, or even brandish said gun to dissuade his attack? But the elderly man stands no chance at defending himself against the attacker with his fists. So he's just supposed to let himself either be hospitalized or beat to death?
Obviously not. The old man’s in immediate danger of severe injury or death. Sounds like deadly force is both proportionate and reasonable to defend himself.
Change who the aggressor is, and you’ll get a different answer: If it’s the elderly man throwing a punch, the 300-lb bodybuilder wouldn’t be allowed to defend himself with a gun.
Historically accurate? You haven't seen the "Mail Call" episode about flamethrowers. The thing included huge a 160+ pound backpack consisting mostly of napalm tanks -- so your life expectancy from the time you started strapping one on was about 20 seconds. That's why the army no longer has them.
Is that the same episode where Gunny explained how to properly deploy a live Holy Hand Grenade of Antioch? I must have watched that one any number of times…
The church and state did not suddenly "become buddies" in the 16th century. They started that way. Rome, Greece, Babylon, etc. all had the church as a department of the state. Separation of the two was a result of the Dark Ages, when national governments effectively disappeared leaving churches on their own in most countries. / What did arise shortly before Henry VIII was Luther's Protestant Reformation. Inquisitions and heresy trials were aimed at stopping that.
Yes, Anonymous. But remember, we’re focusing on England at this point, which had been doing things differently from the rest of Europe. (And the Inquisition was around long before Luther.)
This latest page you’re responding to comes after a few others showing how the church and state had been rivals in England during the later middle ages, and how that separation had played a part in the development of the legal principles being discussed.
Now we’re getting into what happened to that development once church & state became one again.
[Thanks for the feedback, by the way. The comments I get are one of my favorite parts of doing this comic, and nothing makes my day more than someone saying I got something wrong. I’ve learned some cool stuff (and fixed some boneheaded mistakes) that way.]
You know what’s cool? Almost everyone in my audience thinks I’m speaking their language. The ultra-liberals, the über-conservatives, the supermeta libertarians — it’s amazing how they all think I’m on their side.
This is fantastic. Because I’m not trying to please anyone. All I want to do is say “this is how it actually is.”
If most of us think “how it is” corresponds with their “how it ought to be,” then society is probably on the right track.
Think about that. Your political opponent thinks I’m telling their side of the story as much as you think I’m telling yours.
Say it is New Years Eve and the police roll up on the parking lot of a bar and find a sober Greg wrestling with his drunk friend Steve for Steve's car keys. Is prosecutorial discretion the only thing that protects Greg from prosecution for assault with intent to rob?
Can I just say, I love going back and reading the comments in the “Class Participation” section of the comic. Some of the most intelligent, courteous and thoughtful discussions are going on in there. You guys are pretty damn awesome.