Revenge Porn And The Constitution

Last week, nearly 30 new state laws went into effect in Florida, including the outlawing of “sexual cyberharassment,” commonly known as “revenge porn,” which is when someone posts an explicit image of another online without permission.

The law, which passed both the state House and Senate virtually unanimously in the spring (only two legislators in each chamber voted against the measure), defines sexual cyberharassment as “publish(ing) a sexually explicit image of a person that contains or conveys personal identification information … without the person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the person.”

Violators could face a first-degree misdemeanor charge, or up to a year in jail; repeat offenders could be socked with a third-degree felony, which carries a maximum five years in prison.

Twenty-six states now have some form of law regarding “revenge porn.” And while I applaud the crackdown on this particular heinous act by both Republicans and Democrats, I am a bit concerned about how effective it will be, and whether it will hold up in our courts. The new law amended an existing state statute to permit law enforcement officers to arrest individuals without a warrant when there is probable cause to believe the suspect has committed sexual cyberharassment. Additionally, the law permits a search warrant to be issued for a private dwelling if evidence relevant to proving sexual cyberharassment is contained therein.

My concerns revolve around the United States Constitution, specifically that pesky First Amendment and that equally troublesome Fourth Amendment, and how these two measures could impact how this particular legislation stands up when court cases are being filed and prosecuted. Conviction is made difficult by the First Amendment, which states that "Congress shall make no law … abridging the freedom of speech, or of the press.” Today, this includes the Internet; to place restrictions on what individuals can post online to us would be a clear violation of the First Amendment; speech on the Internet has full First Amendment protection.

The Fourth Amendment is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. To me, the key word here is “warrant;” as I noted two paragraphs ago, under the new Florida law law enforcement officers do not need to secure a warrant in advance to arrest individuals suspected of sexual cyberharassment. Under the Fourth Amendment, search and seizure - including arrest - should be limited in scope according to specific information supplied to the issuing court; without a warrant, there is no check-and-balance taking place by the justice system.

The constitutionality of this type of legislation is why some states’ revenge porn laws have been halted by federal courts. For example, Arizona’s law had made it a felony to "disclose, display, distribute, publish, advertise, or offer" an image of a nude person without that individual’s consent. However, it was so overly broad, it could have punished a wide range of constitutionally protected communication, including "a library lending a photo book about breast feeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison, or a newsweekly running a story about a local art show," according to the American Civil Liberties Union.

I agree that sexual cyberharassment is a bad thing. I applaud our elected officials for trying to do something about it. And I hope my assessment is wrong. But I do have concerns Florida’s leaders will need to try, try again on this type of legislation.

Truthiness

"The problem with internet quotes is that you cant always depend on their accuracy" 

- Abraham Lincoln, 1864

This snarky comment has been floating around cyberspace for several years. And yet, with every passing day, it seems to be even more a reliable indicator of where we are as a technology-driven communications society.

Today, we see this happening in at least two high-profile situations: on social media like Facebook, where a variety of hoaxes are posted and accepted as the gospel by thousands of users; and the 2016 presidential campaign, where despite the media’s ability to respond to less-than-factual comments more quickly than in years past.

One variation of this year’s Facebook hoax - yes, it’s an annual tradition, like Halloween and Santa Claus and hurricane season in Florida - reads, in part: “Better safe then sorry! Now it's official! It has been published in the media. Facebook has just released the entry price: $5.99 to keep the subscription of your status to be set to ‘private.’ If you paste this message on your page, it will be offered free (paste not share) if not tomorrow, all your posts can become public. Even the messages that have been deleted or the photos not allowed.”

The hoax includes a fictitious news report from a “Channel 13 News,” as well as various purported federal laws and the Rome Statute, as further “proof” of the post’s “legitimacy.”

Savvy Facebook users end up posting status updates mocking the hoax, but it still happens like clockwork.

Then there’s the political arena. Despite fact-checking sites like PolitiFact (http://www.politifact.com/), which do their best to determine which political comments are “True” (Mike Huckabee’s claim that six of the 10 wealthiest U.S. counties surround Washington, D.C.) and which achieve “Pants on Fire” status (example: Donald Trump’s claim this week that unemployment hit 42%), too often once less-than-honest comments are made, it is impossible to fully reverse the damage. Too often, individuals on either side of the political aisle accept their chosen (or, at least, preferred) leader’s words as the Gospel, and are reluctant to admit anything inaccurate was stated. And while individuals with opposing viewpoints howl at the moon about the situation, rarely does it impact what has transpired.

We can also see such questionable use of facts surrounding the current Planned Parenthood saga, where individuals on each side of the politically-charged topic have the ability to pick and choose which pieces of information to rally around and which to ignore. In fact, take any “hot button” topic coming out of Washington, D.C. these days - Benghazi, gay rights, immigration reform, public education, the national debt, legalization of drugs, Syrian refugees - and this phenomenon will occur.

Fans of The Colbert Report can point to the October 17, 2005 pilot episode, where the host coined the word “truthiness,” described as a quality characterizing a "truth" that a person making an argument or assertion claims to know intuitively "from the gut" or because it "feels right" without regard to evidence, logic, intellectual examination, or facts. Nearly 10 years later, the word - and definition - still stand as a modern conveyance of the phrase “don’t let your facts get in the way of my opinion.”

Honest Abe would be proud to know his Internet quote is more honest than many of the comments it describes.

Presidential Non-Debates

Two down, and - break out the popcorn! - infinitely more to go.

That’s where we, the people, stand in terms of the various concoctions the Republican Party, Democratic Party, and various media, have stirred up in the cauldron of silliness that are the 2016 Presidential (and, eventually, Vice Presidential) debates.

To date, a pair - OK, technically four - GOP “debates” has played out for us on television. Consider them the “appetizers” of the debate season; between October and March, 15 additional live sparring matches are scheduled (nine between the various Republican candidates, six between Democrats), plus four next fall (three presidential, one vice presidential).

The purpose of these forums is purportedly to allow voters to gain valuable information about each of the hopefuls seeking to be Commander-in-Chief after President Barack Obama’s second term expires in January 2017. This is an admirable quest; we would love to learn far more detailed ideas about dealing with important topics ranging from the economy to ISIS, health care to education, immigration to climate change.

But what has been presented thus far has been anything but enlightening, at least in terms of viable, legitimate issues we believe should be openly discussed. What has been given to us has been less than satisfying in terms of solutions to difficult problems we face in our United States.

In a 48-page report released in advance of the 2016 election season, the University of Pennsylvania’s Annenberg Public Policy Center working group laid out a series of suggestions to improve presidential debates. Part of the problem, according to group organizer Kathleen Hall Jamieson, is with the way the media both sets up these forums and lets them play out.

“Right now, reporters are in a very difficult situation, because they’re trying to be traditional reporters and they are trying to moderate a debate,” Jamieson said. “And as a result, we get joint press conferences. We’re not really getting the debate. And if the moderator tries to follow up, the moderator is perceived to be unfair and sometimes the moderator is unfair.”

Thus, these “debates” are not really debates. This is because true debates are more formalized, with a more-structured timeframe. And there would not be a moderator.

Instead, we are given public platforms - open forums where the various talking heads are for the most part preaching from the same philosophical background to the same eager choir. To be a legitimate debate, the various speakers should be taking up different positions on the same questions, not responding to questions tailored to each candidate individually.

The group also suggested eliminating the live audience as part of the presentation. “As our research shows, if you have an audience that cheers or jeers or engages in any kind of heckling behavior, you can affect the outcome of the debate,” Jameson said.

I encourage the Commission on Presidential Debates to take the Annenberg study seriously, as a way to try and bring some much-needed legitimacy to the presidential debate model. I also urge the Commission to boldly go where many area high schools have, and are, going - that is, review the format incorporated by area high school debate programs, which offer students taking opposite sides on a central question and presenting sound logic, theory and empirical evidence to back up their positions. Talk to individuals with the National Speech and Debate Association, the nation’s largest high school debate organization. Talk to debate coaches at area high schools. Or debate coaches at any schools with debate programs. Or even some of the most experienced debaters on these squads. And leave the popcorn behind.

The Evolving Threat

It has been 5,113 days since four commercial airliners departing from east coast airports, fueled for flights to California, were hijacked. With jet fuel capacities of nearly 24,000 U.S. gallons (144,000 pounds), each aircraft effectively became an incendiary guided missile.

Has it really been 14 years?

The irony (well, one of the ironies in today’s world) is that for virtually any child not in high school, 9/11 isn’t even a distant memory anymore; it was an event that changed the world before they even entered the world. And there are plenty of high school students who were either born after 9/11 or have virtually no recollection of that date.

Heck, even this year’s college freshmen and sophomore classes were too young then to have much understanding of what had occurred. And it seems likely that before long, 9/11 will be noted purely as a historic moment, much like the Dec. 7 anniversary of the Japanese attack on Pearl Harbor.

Now, it’s true there are regular reminders about that awful day; whether it be passing through security at an airport, discussing the sad state of affairs Afghanistan and Iraq veterans deal with in terms of PTSD and health care, or driving past the remains of the Twin Towers planted outside of Wellington Village Hall. Less visibly, millions of security cameras track your movements, and the government has amassed vast powers to snoop on you through post-9/11 legislation like the USA Patriot Act.

Despite this, time has lessened the impact we feel on a daily basis. The sense of fear that gripped our nation in the immediate days and weeks following the attack has dissipated, and terrorism - while still out there as a threat - has taken a back seat to the economy and other issues in the current presidential campaign. Indeed, many people believe Sept. 11 may now be the safest day to fly, given the attention airport security receives.

Relaxing our senses is a natural part of humanity, but it can be a bit scary. Terrorism should not be relegated to an afterthought. Of the many things done in the United States since 9/11, some were intelligent (such as reinforcing cockpit doors on jetliners), others not so much (the much-mocked and ignored color-coded alert system).

But after 14 years, it's time to reassess the threat and recalibrate the responses. To a large degree, the threat has evolved. It might not be as organized as when, say, Osama bin Laden was in charge of al-Qaeda, but it’s still out there, and as our attend span wanes and we follow events such as the Syrian crisis, we pay less attention to the threat that is always out there.

Dealing with terrorism is a difficult job. Our security forces are always on the defense, hoping we can gain knowledge of our enemies’ plans. But those plans can be shrouded in deception, and sometimes we don’t know what those plans are, or how seriously we should consider them. The questions remain: who, when, what?

And we hope not to be taken by surprise, or to react too slowly to make a difference.

Two Masters

We are now in Day 5 of Kim Davis Held Hostage, the daily soap opera cleverly disguised as Christian ideology at a standstill (or something like that).

If you're not familiar with this story, WHERE THE HELL HAVE YOU BEEN THE PAST TWO MONTHS? On June 26, the Supreme Court of the United States, in a 5-4 landmark decision (Obergefell v. Hodges), ruled that same-gender couples should be afforded the same opportunity to be miserable in marriage as "traditional" male-female couples, because the 14th Amendment to the United States Constitution (i.e., the set of rules which serve as the legal backbone to freaking govern this nation) forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws."

Which basically means states cannot discriminate against anyone seeking a marriage license, regardless of who they choose to marry.

Well, Rowan County, Kentucky, Clerk Kim Davis is rotting in jail for violating a court order to issue marriage licenses to same-sex couples. Faced with the SCOTUS ruling, Davis - an Apostolic Christian - directed her office to stop providing marriage licenses to any applicants, because she believes her religious beliefs forbid her from issuing said licenses to same-gender applicants. The jailing took place after she went through a number of legal challenges (all denied) basically insisting she be given special treatment under the law, so she can deny equal treatment to people living in her jurisdiction.

Conservative advocates have rallied behind Davis, arguing her religious freedom is being violated. Republicans (such as GOP presidential candidates Rand Paul and Mike Huckabee, among others), claim she should ignore the SCOTUS ruling because her religious beliefs are far more important than treating everyone equally. This despite the rampant hypocrisy in her pre-Apostolic Christian life (prior to being born-again, Davis was divorced three times, married four times, and had an affair somewhere in there which bore two children). And the irony that Davis is a Democrat being supported by Republicans while being thrown under the bus by the Westboro Baptist Church, of all groups, due to her own alleged pre-born-again personal transgressions before God.)

Others argue when she took office in November, the SCOTUS ruling hadn't taken effect (true), so she shouldn't be bound to it (not so true). Except ... Davis isn’t self-employed. She doesn’t get to revise her own job description on-the-fly. Only her employers retain that discretion; her employers happen to be the people of Rowan County, Kentucky. You know - the people who pay her salary, who she represents, who she works for.

And this is part of what is so galling to me. Supporters of Davis have tossed about comments like, "Well, same-sex couples can always go to another county to get married; they don't have to do it here." Except, if they live in Rowan County - if their taxes pay for services rendered in Rowan County - then they have the right to use the services for which they have paid, provided by the employees for which they provide salaries and benefits.

It's really that simple.

To me, the fact the SCOTUS had not made its ruling when she took office is a non-issue and irrelevant. Laws - and interpretation of laws - change all the time. Her role is as a public employee, who has sworn to uphold the Constitution of the United States as part of her job duties. That, in and of itself, means that she is willfully choosing not to do her job, as expected by the people residing in her jurisdiction - regardless of race, color, creed, religious affiliation, or sexual orientation. She basically has, IMHO (and I obviously do not stand alone on this), two choices:

• resign, so someone else can actually do the job based on what its requirements are; or
• follow the 14th Amendment, as interpreted by the SCOTUS, and not discriminate against anyone, even if she has a religious opposition.

[OK, apparently there is a third choice: spend time in jail for contempt of court. She chose Curtain Number 3.]

Honestly, either of these options are fine with me. If she resigns, and gains employment in an arena which suits her both personally and religiously, all the power to her. Go with God, and be strong! If she does her job, and doesn't force state-sanctioned discrimination on residents in her county through her own personal choice to do so, that's cool, too. And if she chooses to neither resign nor follow the law, then welcome to the Rowan County Hilton! Hope you enjoy your stay!

While the whole commentary regarding her four marriages and infidelity and such have been tossed around (by many, including me) as a sign of hypocrisy, this is essentially side-show material. Even if she is throwing stones here. If this were a high school Student Congress speech, I'd stay away from that whole avenue and stick with the facts, the primary one being: the due process clause of the 14th Amendment extends to "certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."

Justice Anthony Kennedy - considered the court's key swing vote - based his decision on the recognition of four fundamental principles, arguing that marriage is inherent to the concept of individual autonomy, that it is of unparalleled importance to committed couples, that it is crucial for safeguarding the rights of the children of couples in committed relationships and that it has long been a keystone of social order.

Years ago, long before the SCOTUS same-gender marriage ruling, I was asked the question of whether I supported gay marriage. My response was two-part: (a) I don't believe the state should have any role in marriage whatsoever, since it's purportedly a religious ceremony, and that whole "church and state" thing seems to get in the way - why is the state making money by charging couples for marriage licenses? (b) But, if the state IS going to be involved with marriage, then same-gender couples should be afforded the same opportunity of marriage as female-male couples.

Quite frankly, the whole "Christianization" of this issue appalls me. I'm Jewish; I have plenty of friends and family that are not of any form of Christian belief - Jewish, Muslim, atheist, Hindu, whatever. IF WE ARE DENIED EQUAL OPPORTUNITY UNDER THE LAWS OF THE UNITED STATES AS OTHERS BECAUSE A GOVERNMENT EMPLOYEE'S RELIGIOUS BELIEFS INTERFERE WITH HIS OR HER ABILITY TO DO HIS OR HER JOB, THERE WILL BE HELL TO PAY!

Davis is in jail because she has the audacity to use her religion as a way of discriminating against citizens in her political jurisdiction, and ignored a federal order to do her job. She is a jailed welfare queen - getting paid (even while in jail) her $80,000-a-year salary (plus benefits) for choosing not to do her job. No more, no less.

I am a public high school teacher. My salary and benefits are taxpayer-provided. I am a servant of the people, some of whom have children in my classroom, many of whom do not. It doesn't matter; my position is that of the public trust. I can't just decide, "Oh, teaching The Canterbury Tales goes against my religious code, so I'm not going to teach it to my English class." Or, better yet, "I refuse to teach Muslim students because [list some horribly bad analogy here about Muslims and Jews not getting along for thousands of years and all the killings and stuff that's been happening in the Middle East for decades]." If I did that, guess what? I'd be suspended immediately and fired in the blink of an eye, for insubordination and refusing to do my job. And I'd be labeled a religious extremist and a bigot.

There is no protection under the law - any law - for religious extremists in government positions (whether elected, appointed, or hired) to impose their personal beliefs on the people they have sworn to serve. This applies to public high school teachers, firefighters, law enforcement officers, and elected officials - and many more who fall under this umbrella. To the contrary, all of these public individuals are required to obey the laws, regardless of their personal preferences. All the laws, not just the ones they cherry-pick. And you don't get to hold other peoples' lives hostage while imposing your warped version of Christian Sharia Law.

You are trying to serve two masters, Kim Davis - your God, and your government - but it looks like you have a choice on which master to serve. I suggest you choose wisely.