TPM Cafe: Opinion

As an attorney who has represented involuntary porn victims ("revenge porn" is too narrow), I was dismayed by Cathy Reisenwitz's TPM Cafe piece, "Revenge Porn Is Awful, But The Law Against It Is Worse." Reisenwitz's arguments might apply in a cold academic world, but not in the real world.

In the real world, a young woman takes erotic photos to share with her husband/boyfriend. Maybe she and her boyfriend/husband each take some. Maybe he takes them without her knowledge. Maybe the relationship ends badly, or maybe it doesn't end at all but somebody hacks into her supposedly secure email or Photobucket account. (This is actually a booming industry.)

One day, she or her mom or dad or little brother picks up the phone and a voice announces that this real life young woman's most intimate photographs are displayed on a website along with her real name, home town, and links to her Facebook and LinkedIn pages. Suddenly, she personally, not anonymously, is subjected to mockery, ridicule, and personal attacks--Slut! Fat ass, ugly tits!--and "compliments" such as, I'd shove it right up that tight ass! Even more ominously--Hey, I know her! She was a prude in high school but I know where she lives so maybe I'll drop by and say hi now that I know what she's really like! Oh by the way, here's her daddy's email address, he'll love to see how his little princess has grown up! Here are the email addresses and Facebook pages for her friends and family and boss, let's let them know what a slut she is!

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Updated 4:16 p.m. ET

Though we've narrowly averted debt-ceiling mania, our favorite congressional characters are still tasked with arriving at a sustainable budget. That process is sure to bring debates over entitlement spending, again! It's true that U.S. healthcare costs contribute to the debt and are out of control. And it's true that we need to do something about it. But cutting coverage, the favorite solution of politicians on both sides of the aisle, won't solve America's ballooning healthcare costs.

Our three trillion dollar health care sector functions as a market. There are suppliers that provide products and services (doctors and companies that sell medications and devices), there are consumers (like you and me), and there are purchasers (insurance companies and the government). In purchasing health coverage for the military, elderly, and disadvantaged, the U.S. government accounts for two-thirds of all health care expenditures. Amidst heated partisan political battles, our Congressional representatives keep proposing to manage the country's debt by cutting the government's commitment to provide health care coverage for seniors (Medicare) and the disadvantaged (Medicaid). What our politicians aren't seeing is that this blinkered approach won't improve health and is actually business-unfriendly to boot.

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Writing here at TPM on Wednesday, Cathy Reisenwitz floated the libertarian defense of allowing men, in an act of revenge against women (usually for daring to dump them), to upload naked pictures of the women to "revenge porn" sites. California has already narrowly banned the practice, though Reisenwitz overstated the likelihood that the criminal penalties for it will lead to more overcrowding of prisons, as the law remains a misdemeanor with jail time as the maximum penalty. Other states, including New York, are expected to follow.

Reisenwitz is concerned that free speech is in serious danger if people who don't have permission to publish private nude photos are not permitted to publish those photos. That seems an overblown concern in a society that otherwise has some fairly strong protections over certain kinds of intellectual property. If free speech hasn't been conquered because I can't watch some naked lady on HBO without paying them first, it seems free speech is safe if men who want to punish women for dumping them can't publish their naked pictures all over the Internet.

Let's be clear: The free speech rights of men who are embittered by discovering that women are allowed to decline further relations with you are not really going to be affected if they can't publish nude images of a woman without her permission.

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College men: Stop getting drunk. It's closely associated with sexual assault. And yet we're reluctant to tell men to stop doing it.

Slate's Emily Yoffe lit up a firestorm in social media with an article earlier this morning with the headline and subtitle, "College Women: Stop Getting Drunk. It's closely associated with sexual assault. And yet we're reluctant to tell women to stop doing it." As a writer, I know that article titles are not written by authors and can actually even undermine the point of a piece. But, that's not what happened here. Yoffe carefully provides gender-neutral statistics regarding sexual assault and binge drinking on campus.

Her conclusions? "A common denominator in these cases is alcohol, often copious amounts, enough to render the young woman incapacitated."

How about: "A common denominator in these cases is a lack of education, often a copious lack, about consent and what constitutes rape."

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In follow up to my earlier post, here are a couple of additional points.

1) A related but different argument petitioners are making about why the PSD provisions don't apply to the regulation of greenhouse gases is that the application of the provisions would lead to absurd results. The absurd results come about because the definition of "major source" in the PSD statutory language -- 100 tons per year of any air pollutant -- would sweep in a huge number of small sources that Congress never intended to regulate. In order to avoid absurd results, the Court should find that the plain language of the PSD provisions doesn't apply. Stanford Law Professor Michael Wara asked me about this argument in the comments section of my last post.

As I responded to Michael, I don't buy the absurd results argument. Here's why. EPA has faced other circumstances in which statutory language sweeps in a huge number of potentially very small sources. One of those provisions is the definition of "point source" under the Clean Water Act, which includes "any discernible, confined and discreet covenyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissue, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." In 1973 EPA attempted to exempt from this language a number of types of sources in order to keep the number of sources it was regulating to something short of absurd. Among other things, EPA argued that the language of the statute gave it power "to instruct each individual farmer on his farming practices." In NRDC v. Costle, 568 F.2d 1369 (1977), the D.C. Circuit struck down EPA's regulations exempting various sources because the regulations violated the plain language of the Clean Water Act. The court also suggested that EPA could "make full use of its interpretational authority" by using options to minimize its administrative burdens. These options included area-wide regulation and general permits that could be applied to small sources.

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It's hard not to sympathize with victims of so-called "revenge porn." Hearing women such as Rebekah Wells and Holly Jacobs talk to a concerned Katie Couric about having their bosses and colleagues see them in states of (un)dress entirely inappropriate for the office elicits a feeling of protectiveness. No one who isn't being paid for it wants months of tentative emails from concerned friends letting them know that they're naked on the internet again.

This sympathy certainly undergirds a bill recently signed by California governor Jerry Brown which outlaws revenge porn. The state of California can now add people who post naked photos of their former partners to its criminally overcrowded prisons if they do so without permission and with the intent to cause emotional distress or humiliation. Offenders may spend up to six months in jail and pay a $1,000 fine. Repeat offenders can be imprisoned for up to a year.

Now legislators in New York, Texas, Wisconsin and Georgia are looking to enact similar laws. Proposed legislation in New York would actually widen to the ban to include photos victims take of themselves. Other activists are pursuing a ban on revenge porn at the federal level.

While well-intentioned, this kind of legislation is over-broad, poses serious free-speech threats and may not even be necessary going forward.

The first thing it's important to keep in mind is that revenge porn laws criminalize speech.

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This morning, the Supreme Court announced that it has granted six of the nine petitions challenging the D.C. Circuit Court of Appeals ruling upholding the Environmental Protection Agency's rules regulating greenhouse gases under the Clean Air Act. The Court granted cert on only a single question (petitioners had raised a number of them):

Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.

On the good news front, that means the Supreme Court has let stand some important portions of the lower court ruling, including EPA's finding that greenhouse gases endanger public health and welfare (a finding necessary to support regulation under the Clean Air Act). The lower court also upheld standards regulating emissions from automobiles; that portion of the ruling also remains in tact.

In order to understand the granting of cert, it's worth repeating again the history of what led to the EPA regulations.

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Historical comparisons are a tricky business, and wrong examples teach dangerous lessons. Take loose comparisons between this government shutdown and the previous 17. Nate Silver and others suggest that this shutdown will not harm the Republican Party because the last one cost them only two house seats. More controversially, the sheer number of previous shutdowns legitimates this one as a political tactic. If there were 17 recently, what makes one more so awful?

This shutdown has no precedent in living memory. Our recent ones concerned budget disputes, new legislation, or substantive restrictions on the allocation of money. Now, Republicans seek to repeal a statute, a statute that has been exhaustively legitimated through all political channels, including a Supreme Court ruling, two presidential campaigns, and 41 failed repeal attempts by House Republicans. To understand our current crisis, we must travel back more than a century. In 1879, the Democrats threatened to defund the federal government unless Republican President Rutherford B. Hayes repealed laws protecting the right of freed slaves to vote against the use of terror and violence by groups like the Ku Klux Klan. The Democrats' threats backfired, and Republicans swept to victory in election of 1880. The parallel should serve as a warning to today's conservative obstructionists that their tactics are self-defeating and illegitimate.

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Let's get this out of the way up front: the shutdown is an outrage. Our legislature is behaving recklessly. People are upset, and they are right to be upset.

But it is disappointing to watch that anger channeled in destructive ways. The latest is Drunk Dial Congress, a website created by Revolution Messaging that encourages people to have a drink (or several) and call a random congressional office, presumably to yell at them.

Much like reality TV, this is sort of amusing but socially destructive.

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When the first 20 week abortion ban was introduced in Nebraska in 2010, anti-abortion advocates weren't shy about their hopes that the bill would make it to the Supreme Court. Now, three years and 12 states later, Arizona has petitioned the Supreme Court to review its 20-week abortion ban. If the court agrees to take it up, which it could as early as 2014, that might actually end up being bad news for abortion opponents, and undo years of carefully crafted strategy when it comes to overturning Roe v. Wade.

The "Pain Capable Unborn Child Protection Act," model legislation created by the National Right to Life Committee (NRLC) and first introduced in the state of Nebraska, claims that a fetus can feel pain by as late as 20 weeks post-fertilization, and bans any abortions that occur after that point. Arizona's "Women's Health Defense Act," in comparison, bans abortion at 20 weeks conception - 18 weeks post-fertilization - claiming that at that point the "risks" of an abortion greatly increase, putting a pregnant person's health in more danger.

The disproved concept of "fetal pain" is mentioned in the Arizona bill, which was drafted by Americans United for Life (AUL). But unlike the Nebraska bill, allegations of fetal pain is a secondary consideration, where as the crux of the bill is based on the idea that abortion can be regulated as long is it is done so under the guise of protecting the health of the person undergoing it.

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