Ciceronian Review

Unprofessional Does Not Mean Dishonest

Kris Kobach, after an incompetent performance at trial in the proof-of-citizenship voter registration case, has reached an agreement resolving the bar complaints about him.  Part of the agreement has been disclosed, indicating he agreed to a diversion program (which is, presumably, on top of the various court imposed sanctions that, e.g., required Kobach to take some remedial legal education courses and pay a fine).  His various spokespeople have a consistent line -- there was no finding of dishonesty.  Well, true, the portion of the agreement says that, but it is a weird way to explain things.  Kobach was found by the judge to have improperly suppressed evidence, and misled the court about the existence of the evidence -- which is the way courts describe lawyers lying and don't want to work through the evidence to distinguish between gross negligence, recklessness, and intentional misstatements. Kobach was not dishonest, but he did engage in unprofessional conduct.  He failed to fulfill his supervisory duties and failed to comply with his obligations towards the court and the opposing party.  That, to me, is serious.  It shows a kind of corruption, particularly egregious because he is so loud in declaring his virtuousness.  Anyway, based on the reports a bar complaints and sanctions, most discipline does not involve dishonesty.  It involves incompetence, just like Kobach's, failure to comply with duties in representation in litigation.  Even the monetary cases include a large portion that really amount to incompetent accounting procedures and lack of safeguards.  Why would one want as a senator someone who is incompetent at his chosen profession?  Kansas is an interesting place.

A Better Naming

An interesting post with a better name for the problem: nonconsensual pornography. 

Once More On Illinois

The person who "presses the button," so to speak, owns the copyright of a photo (I think that is how the law is currently).  The core of the crime for the Illinois Supreme Court is distribution without consent of the subject.  I suppose then that if one owned an image (which meets to the other conditions of the statute, i.e., appropriately sexual) of some person A, one would need some reasonable basis for believing one had consent to distribute from that person before one could sell the image?  The statute is set in terms of 'knows or reasonably should know that the person in the image has not consented to the dissemination' so there is some sort of reasonable person statute.  Does the subject have to be alive at the time of distribution?  Or would the estate be able to file a complaint?  The person depicted has to be identifiable, so that is a limit.  An important limit I would think, as it places lots of images outside the scope of the statute because too old or obscure in origin.  But these are details of enforcement that will not get sorted out for a long time.

At the center of the Court's decision is the view that the statute is content neutral regulation of time, place, manner, that it constrains only distribution.  It is aimed at privacy protection, not suppression of sexual images.  Consider paragraph 66 -- the harms listed look like they arise from the fact that sexual images are still largely considered shameful -- that is why a threat to disclose the images may coerce a victim.  Suppose that one made a drawing of the image, would distribution of that image be barred?  I think so, although if the chain extends a bit it easy to see protections disappearing.  (A uses the image as a model for a class; A would violate the law but I think none of the students would unless more was involved.).  Which gets to this as an example of how context driven any interpretation of a statute will be.  Image is defined as, inter alia, " a photograph, ... or any other depiction or portrayal of an object, including a human body."  A written description is a depiction or portrayal (I think -- maybe Illinois defined those terms as well, which would be a surprise).  So the Defendant may be liable in this case whether or not she had attached the images to her letter. 

¶¶ 3-8 give the facts of the case, which illustrate how much this sort of statute will end up a matter of prosecutorial discretion.  The victim knew that the account on which she sent texts and images was a shared account.  

Revenge

On the 18th, the Illinois Supreme Court handed down an interesting decision on "revenge porn."  The opinion and dissent are this link.  It is interesting for things the opinion does and does not say.  Many states now have criminal prohibitions on revenge porn.  I am not aware of any states that restrict revenge prose, sexually explicit or not.  The adage about a picture is worth has some merit.  A picture of someone unclothed has greater impact than a statement that I have photos of X having sex that X gave me.  Even filling in the description does not not seem to be as effective as the image of X.  

The Illinois statute does has a somewhat unusual intent requirement.  Most states require the distribution of the photo be made with one or more particular aims, e.g., to harass, humiliate, intimidate, etc.   They require distribution with malice.  Illinois took a different route.  Its statute instead requires that the person who disseminates the image must have known or should have known that the person portrayed in the image has not consented to the dissemination. That is enough, according to the Court because this provision inherently includes an illicit motive or malice.  Setting out a malice requirement would serve no purpose and not appreciably narrow the scope of the statute (11-23.5).  Violation is a Class 4 Felony.  A class 4 felony is punishable by 1-3 years in prison and up to $25,000 fine.   

The Court majority found that the statute controlled distribution of images, so was a time, place, manner regulation due intermediate scrutiny, not content based.  As such, it passed constitutional muster.  (NB, apparently no one really briefed the state constitutional issue, so the Court based its decision on its reading of the doctrines of the First Amendment to the US Constitution.)

There is a movement to criminalize revenge porn and to push it out from under the protections of the First Amendment, because revenge porn does cause serious harms to the victims.  People, mostly women, are humiliated by it, and it leads to awful harassment, social disruption, impairs mental health, and so on.  Certainly a real problem.  But, 3 years in prison?  It runs against the concern about mass incarceration and over-criminalization.  I wonder about the tendency to make things crimes, put people (admittedly kind of creepy people) into jail over these things.  But that is always a difficult line-drawing problem.

The Court discusses civil remedies, finding that they don't really do the job.  They take too long, cost too much, and are too public.  True, I think.  But court records are all presumptively open, so there is the same degree of public.  I suppose we are to count on prosecutorial discretion and good sense in enforcing this -- when prosecutors charge teenagers with distribution of child pornography for sending selfies to friends/lovers, that seems to ask too much.     

2 Minutes

The US Supreme Court has a new rule this term for oral argument: Lawyers get two minutes to present without interruption.  I have not seen reviews from those arguing this term (only about 6b cases have been argued so far).  I listen to the oral arguments, and, sometimes, read the transcripts.  Both are available fairly quickly after the arguments.  Transcripts give a different flavor than the recordings.  IN the Gay and transsexual employment cases, the recordings came off more favorable to a petitioner victory than did the transcripts -- instead of thinking it would be a 5/4 holding for petitioners, the recordings suggest 6/3 is possible.  Of course, that is just speculation on my part, not prediction.  The two minute rule has made listening to the arguments more interesting and accessible.  Before, all too often, one would have to read the briefs to grasp the heart of the arguments.  Now, one at least has an idea of what the parties think are the central issues. I suspect that questions are becoming more helpful as well, but the sample is way to small for such a conclusion yet.  

Lawyers still think it a good idea to avoid answering inconvenient questions, which I still find puzzling.  It is obvious one is avoiding the question, and obvious that is because an honest answer does one's argument no good.  Are the Justices too thick to notice?  That seems a doubtful proposition.  There are other habits of Supreme Court practitioners I find a little odd.  Justice gives a hypothetical and says I know this is not your argument and you do not think it is your case, but tell me what to make of it.  The lawyer proceeds to say that is not my case and not my argument -- do they think the Justice will forget those facts in the time it takes to respond?  I wonder, then, if there is any research on these issues, showing the efficacy of the practices?