Sep 16 2014

First Amendment Case is Crash Course in Rap for SCOTUS

Anthony Elonis is a Pennsylvania man convicted of issuing threats to his ex-wife, who had an order of protection against him.  All of the relevant threats were posted on Elonis’ Facebook page and most of them took the form of rap lyrics. He did not tag or link his ex-wife to the posts and he usually included funny emoticons or other indicators that he was not being serious. While the First Amendment to the Constitution broadly protects speech, it does not protect “true threats.”

So before addressing the case, it’s worth looking at the posts that got Mr. Elonis in Federal hot water.

He did a near word-for-word parody of the comedy troupe Whitest Kids In America’s skit where a member discussed  that while it was illegal to kill the President, it was not illegal to discuss that it was illegal to kill the President.           So Elonis posted:

Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there should
kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have nothing
to do with the sentence before that. So that’s
perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal, extremely
illegal, to go on Facebook and say something
like the best place to fire a mortar launcher
at her house would be from the cornfield behind it
because of easy access to a getaway road and you’d
have a clear line of sight through the sun room.
Insanely illegal.

Even though this language tracks the language in the skit and the post included a link to the video of the original skit, the jury in Pennsylvania found that it constituted transmission of a threat to injure or kill someone, in violation of Federal law. It also found that this original rap lyric was another threat:

Fold up your PFA [ order of protection] and put in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeros to my
Which you won’t see a lick
Because you suck dog dick in front of children
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s

One other rap lyric that led to a Federal indictment and  conviction went as follows:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
And hell hath no fury like a crazy man in a

kindergarten class
The only question is . . . which one?

He was also convicted for another rap lyric which he included in a Facebook note and detailed a visit at his home by a female FBI agent in which he intimated that he had a bomb strapped to him at the time of the interview:

You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all

In the Third Circuit (the Federal Appeals Court that covers Pennsylvania) courts have held that what the “threatener” intended by the communications or writings does not matter; what matters is whether a reasonable person would view them as a “true threat.” Other Federal Circuits have held that there must be some evidence that the “threatener” intended to issue a “true threat.” Due to this division in Federal Circuits, the Supreme Court of the United States must decide. The question presented is:

Whether a conviction of threatening another person requires proof of the defendant’s subjective intent to threaten; or whether  it is enough to show that a “reasonable person” would regard the statement as threatening.

Seems straightforward enough, but the answer will have far-reaching consequences for the way we communicate today.  One of the things that Elonis’ legal teams’ excellent brief does is take the time ( and precious pages) to explain to SCOTUS that throughout modern musical history, starting with the blues, “first-person revenge fantasies are such a prevalent theme . . .as to be cliche.” Elonis brief at page 53 [The Brief is available for viewing at the ABA's site]. It goes on to quote from various blues songs and then rock and even country songs whose theme is killing a current or former spouse. But perhaps its greatest understatement is “But arguably, they have reached their apotheosis in rap music, which has pushed the boundaries of hyperbole.” The brief then cites significant parts of some of Eminem’s songs about his mother and his wife Kim, who have both been the subjects of violent revenge songs. The brief argues that allowing these types of lyrics to constitute “true threats” merely because  the subject of the song reasonably believes them to be true threats would stifle artistic expression and creativity and be an insupportable prior restraint on speech. Rather, the lawyers argue, SCOTUS should align itself with the Circuits that have held that the prosecution must offer some proof that the defendant actually wanted to threaten the alleged target.

bill-of-rights.jpgEducating SCOTUS on rap – while presenting a funny picture-  is vitally important to the success of the brief. I am not going out on  limb to state that chances are the vast majority of the Supremes could not recite the lyrics of The Supremes much less Eminem or Public Enemy or Nicki MInaj; as a rule I see that they tend to go for opera (which is actually pretty violent in its own way).  They need to understand the current culture and climate to become aware that followers of rap know that these songs are just bragging and entertainment. It’s part of the overall genre of rap and hip-hop. That is why an amicus curiae (“friend of the court” brief)  filed by the University of Florida’s Marion Brechner First Amendment  Project is extremely important. The brief (also available at takes the Court through a history of rap. (Editor’s Note: I was grateful to see that it correctly traced its origins to the South Bronx). The writers eloquently explain that part of the genre’s popularity

resides squarely within a long tradition of African American storytelling and verbal
competition, one that privileges exaggeration,metaphor, and, above all, wordplay. Underlying this
tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying,
ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally
exploited. This practice, along with rap’s dense slang and penchant for imbuing words with new meaning(s),
makes it especially susceptible to misreading and misinterpretation

Elonis Amicus Brief -Brechner at page 11. [Editor's note: that passage is itself poetry]. The brief’s authors also take great pains to point out that rap artists and even rap aficionados are viewed with distrust and contempt by “police, politicians, religious leaders, and civic groups who maintain [rap] is particularly threatening to American society.” They continue by alerting the Court that much of this ill-will is merely the latest version and manifestation of prejudice and dislike of minorities in general  and of young people of color in particular.  So they stress that there must be subjective proof of the writer’s intent or else “such biases and prejudices may subtly cause jurors and jurists to erroneously find true threats where none exist.” That is a great and compelling argument for ruling that courts cannot merely rely on the reasonable person standard – because the reasonable person is likely to not understand rap and may very well be biased against rap and against those who like it or produce it.

I am following this case closely not just because of its implications to rap artists but because of its implications to free speech everywhere.  The case’s potential for far reach is best exemplified by another amicus brief field jointly by PETA and Pro-Life Groups (and they say politics makes strange bedfellows). This brief is focused on the implications of using the reasonable person standard against loud and occasionally obnoxious protesters. Those who don’t like the messages are more likely to find that the shoutings and rantings are “true threats.”   I am also following the case because in early October I will be going to the Georgia Supreme Court to argue that the First Amendment prohibits the issuing of a protective order against a blogger who merely posted on the Internet about his alleged “target.” The trial court in Georgia ordered the blogger to remove not only the allegedly offending posts but all posts he had written about his subject. So part of our brief -and the excellent amicus curiae brief filed by Constitutional scholar Eugene Volokh of UCLA on behalf of the Electronic Frontier Foundation and others – takes time and precious pages to make the court aware of the raucous and rowdy language of the Internet and in particular Internet discussion groups.

Modern communication is constantly evolving and courts must keep evolving with it. Any lawyer worth his salt knows that you must give the person deciding your client’s fate – be it judge, jury or appellate court – the proper context and history to understand the situation. Without requiring that there must be some evidence of an actual intent to threaten, opens up society to a flood of claims and cases being brought by folks that just have not adapted to the 21st Century. It would provide a serious prior restraint on artistic expression and personal freedom. Hopefully SCOTUS will take its hip-hop lesson to heart and reverse Mr. Elonis’ convictions.





Sep 07 2014

Cannibal Cop Juror Speaks Out About Overturned Conviction

I was contacted by a juror from the notorious Cannibal Cop case who wanted to break the jury’s silence following the stunning reversal of their guilty verdict by the judge presiding on the case. Since the person wants continue to remain anonymous for as long as possible, I’ll call them Juror X (“JX”).  What JX revealed about the experience of sitting on the Cannibal Cop case has great value for trial lawyers and sets an interesting example of the often conflicting roles of fact, law, judge and jury.

First a quick recap of the case: Gilberto Valle was a newlywed with a young daughter and six years serving in the NYPD when his wife, Kathleen Mangan, found disturbing photos on their shared computer and shocking chats from the website The photos and chats related to ways to stalk, kill and then eat women. Hence the term “Cannibal Cop.” The wife had found similar images and posts before but this time she also saw her own name on  a list of “potential vicitms.” That led her to call police and led to Valle’s arrest. The arrest of course caused a sensational splash in the media. It allowed various tabloids and news outlets to explore the “Dark Web” or “Deep Web” that lies beneath the surface of the world wide web we all surf on a daily basis. Sites there cannot be indexed by standard search engines.  So the case was looked at from all angles by a variety of folks.  There was just one problem – what evidence was there that Valle actually planned to act on the posts he made about these women? How could law enforcement and eventually a jury in a court of law distinguish between mere fantasy and actual criminality?

The trial: The FBI were pressed by the NYPD to close the case quickly and arrest Valle, and so they did. They “made a federal case” out of it because Valle allegedly took his wife and child across State lines to Maryland to visit an old college friend. That college friend was also on Valle’s “Wish List.” The Feds charged Valle with misuse of the federal National Crime Information Center (NCIC) database which he accessed to get personal info about women on his list and with Conspiracy to Commit Kidnapping.

After  a day of jury selection, JX was chosen. Federal jury selection is very different from State jury selection in that the judge does all the questioning and the lawyers do not get to interact with the prospective jury panel. JX felt that the judge did a fair and thorough job of going through their particulars and eliminating folks who might have bias – but then again JX had never served on jury before so JX had no idea what State jury selection entailed or how lawyers approach jury selection as an opportunity to plant seeds in the minds of jurors and test who may have “ready ears” for their theory of the case. The jury selected was nearly equally split between men and women; was racially and economically diverse; and included a corporate lawyer on the panel.           

Judge Paul Gardephe Image Courteys of St.Francis College

Judge Paul Gardephe
Image Courtesy of St.Francis College

The government’s case consisted of  Valle’s wife (who JX reported the jury felt was overly-rehearsed and not  genuine despite repeatedly breaking down on the stand); a few of Valle’s “Wish List” women including the college friend  he went to see with his family; and then a string of FBI agents and techs who painstakingly went through Valle’s posts and chats with other members of from London, New Jersey, and India. JX told me that even though many of the posts were graphic and involved details of violence and sexual abuse, the AUSA’s soft spoken style and the repetitive nature of the testimony made this the sleepiest part of the trial.  Note to trial lawyers: Find a way to make repetitive testimony interesting  to jurors – use slides, posters, or other jury devices; change your tone, your inflection; find a way to summarize or condense it;  and occasionally check on the jury to see if they are losing interest or dozing off. JX noted that until summation none of the lawyers made any eye contact with jurors as they were presenting or challenging the evidence. The defense case consisted of the owner of (a Lithuanian native) trying to explain his site and how it is a “fantasy fetish” site. Part of the reason this witness failed to pack any punch was that by the end of the trial, the jury had gotten to not really like the older male defense lawyer who apparently was handling this witness; they viewed his style as belligerent  and annoying. JX said Julia Gatto – Valle’s lead attorney- was “competent and organized” but lacked any real emotion or connection with the jury. JX stated that it took a great deal of effort not to impugn the negative aspects of the defense lawyering on the defendant. JX always “thought trial lawyers were supposed to try and connect with the jury.” I replied that indeed that should be a main goal of any trial lawyer. JX said that none of the four main lawyers in the case made any such connection with the panel.

One of the most surprising things that JX told me was that it was not until the lead AUSA summed up for the government that JX (or any other juror as JX learned during deliberations)  had any idea where the various pieces of evidence fit into the case. JX said the opening statement did not provide a road map or even a discussion of the various elements that were to be proven. Several times during summation JX thought “Aha – so that’s why that was put into evidence.”  Seems like a rookie mistake from the gov’t side not  to take the opportunity in opening to explain the theory of the case and what evidence would be presented to establish that theory.

The charge: The court thankfully gave a written copy of the charge to the jury because it was long and convoluted according to JX.  Nevertheless they asked to have portions of it read back  a few times before they settled into true deliberations. More and more judges are giving jurors copies of the written instructions to take into the courtroom with them. JX was surprised to learn that it was not done in every case and said it was hard to imagine the jury wrestling with all that legal language without a written copy before them. JX said that the jury relied heavily on the lawyer-juror’s interpretation and helpful  explanations of the terms. While the lawyer had no criminal or trial experience, the jury still did turn to him to break down the elements of the charge into regular language. Something to think about for trial lawyers considering leaving a lawyer on their jury. While JX emphatically stated that the lawyer did not put in his own thoughts about what the law should be or even was, its not hard to imagine a lawyer-juror who might not be as proper and who might try and spin the charge a certain way to get a certain result

The deliberations and verdict: Once they felt comfortable with the charge and elements, the jury got down to the hard work of determining the defendant’s guilt. JX said the jury was a cohesive, tight knit bunch. They spent alot of time together during the 8-9 days of trial because of the “numerous and annoying” sidebars that repeatedly interrupted the trial. During those breaks, which sometimes lasted hours, some jurors read, others chatted, but JX and many others soon formed a Texas Hold’Em poker game, with chips and everything! While real money did not change hands, the game was serious and provided a huge distraction from the mundane task of sitting and waiting. The lawyer in those sessions also helped to remind the jury not to discuss the case. JX also mentioned that  the lawyer helped them stay  true to their oath when they were tempted to speculate on what evidence was kept out and why or what a sidebar was  about. The lawyer kept reminding the panel to just focus on the eivdence as promised.

The jury put up easels with large white sheets of paper on one side of the room on which were written the various elements of each charge. On the other side they put up easels with the facts of the case that applied to the elements. The jury quickly agreed upon a conviction for the misused database count of the indictment as there really was not dispute that Valle used the NCIC to further either his fantsy or his conspiracy. – either were improper uses. JX said that the defense did not help themselves by trying to explain this away; it would have likely been better for the defense to concede that count and focus on the conspiracy count.

In deliberating on conspiracy, the jury grappled over one element – “the overt act.” In order for a conspiracy to move from a mere thought to a criminal plan of action, there must be at least one overt act done in furtherance of the conspiracy. Criminal defense practitioners know that the Feds love to charge conspiracy. The planning of  a crime is often easier to prove than the commission of a crime and its an easy way to grab anyone else who helped the target defendant along the way and then turn them into a witness for the prosecution.

Here the jury was trying to determine if the defendant stepped beyond fantasy to a real plan of action he intended to execute.  They spent most of their 4 plus days of deliberations on  this assessment. They taped up a timeline on the wall which included many of the defendant’s conversations from the chat room. Not content to just read them to themselves, they decided to “role play” the conversations by reading aloud the posts and having one juror take one side of the conversation and another juror take the other side. This helped bring the conversations to life and helped them try to figure out the “intent” of each speaker. The “turning point,” as decribed by JX, was when they realized that as soon as Valle got home from his jaunt to Maryland, the first thing he did was go on the web and tell his chat room buddies that he had successfully  cased his first place of attack. That he had staked out his first victim’s home and office and had formulated how he would do the deed was the overt act necessary to meet the definition in the jury’s mind.  If it was just fantasy, the jury believed, he would not have immediately rushed to report the results of his trip. That, coupled with Valle’s use of real names and real pictures of his “wish list” victims, turned this from a “thought crime” to a real crime. The jury came out and reported its vedict -Guilty on both counts.

Aftermath:  The jury did not want to speak with media afterwards, but they kept in touch with each other. They read all the newspaper accounts of the case which were kept from them during their time on the trial. They understood that the case was gray area of law and in fact a dangerous one, as they were also aware that in the US we do not punish mere thought crimes. But they all felt secure that they had given the defendant every benefit of the doubt, hd presumed him innocent but were in the end sufficiently convinced by the evidence that he crossed the line into a true crime and that he would have acted on it but for his arrest.

Judge’s Ruling:  The jurors were all aghast when one year and four months after their verdict, Judge Paul Gardephe ruled that there was insufficient evidence to try Valle on the Conspiracy count.  While he issued a 118 page decision, the only part that really mattered was this statement:

“The evidentiary record is such that it is more likely than not the case that all of Valle’s Internet communications about the kidnapping are fantasy role-play.  No real-world, non-Internet based steps were ever taken to kidnap anyone.” 

The decision shocked the jury panel and JX calls the ruling “abominable.” JX said that the jury believed it was their province to determine if the facts met the law and that they felt very strongly that Valle’s trip  to Maryland to “case the joint” so to speak was an overt real-world step taken to kidnap a real victim. Valle identified her  as a potential target; organized a trip to go check out her place of residence and work; and then immediately reported his results to his cohorts on the cannibalism website. JX still feels that the jury got it right and is 100% confident that the jury followed the rules and made their determination based soley on the evidence.

Conclusion:  While JX said the judge’s ruling left JX with a bitter taste in the mouth, JX relished the jury experience; one JX had long dreaded. JX said that working with a cohesive group on such an important issue – a person’s freedom –  was strenuous, challenging and rewarding. It is unusual for the trial judge to wait this long to reverse a conviction but then again, Valle was still convicted of one count and therefore would likely have served this amount of time anyway. But the court had the power at the end of the government’s case or at the end of all the evidence to dismiss the conspiracy count if he believed that as a matter of law there was insufficient evidence to sustain it. It certainly must be extraordinarily frustrating for the jurors, having sat through a long and difficult trial, to have their verdict overturned.

Trial lawyers can learn alot from the many points JX raised in the conversation with me.  The importance of making a connection with jurors; of having a roadmap to explain your proof; of recognizing that it is hard for jurors not to impugn your personality onto your client, etc etc.The case is up on appeal and the Second Circuit will have to decide if Judge Gardephe did the right thng under the law or overstepped his bounds. In the meanwhile two others who chatted with Valle in – Michael Van Hise and Christopher Asch – were convicted of Conspiracy  to Commit Kidnapping. Their lawyers are waiting for Judge Gardephe to rule on their dismissal motions as well.







Sep 05 2014

Art Gallery’s Plan To Exhibit Hacked Celeb Photos Should Be Stopped

By now we have all heard that due to an apparent glitch in the iCloud function, dozens of nude and compromising photos of celebrities such as Jennifer Lawrence, Kate Upton and others have been spread all over the Internet. So now to add insult to injury, comes word that an LA Artist that goes by the name XVALA plans an exhibition of some of the photos in a gallery in St. Petersburg Florida. The exhibition is part of a series by the artist that he calls “Fear Google.” Other exhibitions have occurred at the Cory Allen Contemporary Art  in Los Angeles.

His first attention-grab was in 2007, when he displayed a paparazzi photograph of Britney Spears with a shaved head in a reproduction of an early 17th-century Italian frame gilded with white gold. Then after a hacker leaked Scarlett Johansson’s nude images, XVALA plastered the prints all over LA with his signature “Fear Google” logo covering her intimate areas. Now he intends to exhibit life-size blow-ups of the intimate shots of these actresses making the dubious claim that “An individual’s privacy has become everyone else’s business. … It has become cash for cache.” And the gallery’s publicist Cory Allen said the exhibit will help “strengthen the ongoing debate over privacy in the digital era.” No it won’t. It will be someone making money off of the stolen property of another. Calling it “art” doesn’t immunize that conduct anymore than me framing for display some hundred dollar bills that I stole from a bank. And I know what you’re saying “That’s different – these people took these photos of themselves on their phones – what were they thinking?”  Perhaps they were thinking “I am going to engage in absolutely legal conduct.”  Legal conduct, by the way that has become a popular way to engage in flirting, courting and sexual behavior. So these mostly young women were doing what much of their generation and age group do – take intimate pictures of themeselves to send to a lover, spouse, or just see what they look like in a nude selfie. 

But what  they did, they did in the confines of their own privacy. They didn’t post them on their fan website for the world to see. In fact, many of them deleted the images soon after they took them or shared them with their partners. What they didn’t know was that apparently Apple iPhones automaticaly saved all images on their iCloud feature. Even after deletion, the images remained stored on the cloud. And iPhone users were never aware of that. Then, someone with alot of technical know-how and alot of time on their hands used Apple’s “I Lost My Phone” app to hack into the iCloud storage and download the private images. (Maybe XVALA should title his exhibit “Fear Apple” instead). By the way “hack” is a new way of saying “stole.” Keep that in mind – regardless of whether you think folks should be taking nude pictures of themselves, no one should be allowed to make money or grab publicity off stealing them. Shame and blame should be cast on those websites that continue to house the images knowing they were obtained without the subject’s consent.  

lady justiceIt is no coincidence that for the first time XVALA will be exhibiting in St. Petersburg Florida as opposed to LA.  California passed one of the nation’s first “Revenge Porn” laws making it illegal to exhibit or post nude photos without a person’s consent in most situations. Also, California has one of the strongest right to privacy and right to publicity laws in the country. Making money off a person’s name or image without their consent can expose the guilty party to monetary damages and an injunction to make them stop the offending behavior. IF XVALA really felt that this exhibition was about art and that there was nothing wrong, then it should happen in LA and let the court system work it out. I am hopeful that the involved celeb’s lawyers will take legal action to stop the exhibit. While celebs are public ifigures and when they walk on the street or eat in restaurants, the papparazzi have every right to take pictures of them, this is different. And copyright law provides the easiest way to put an end to this show. Since many of these images are selfies, then the photographer -and no one else- owns the copyright in the images. The copyright holder alone enjoys the right to make derivative uses of the image and to display the images for commercial use. Even if a third party took the images using the actresses cell phones, the actresses may still have at least a shared right in the images; of course regardless of who took them, the actresses have their right to privacy and publicity. I have used these legal arguments to help many Revenge Porn victims in two websites I am involved with, and

Finally, we need to stop blaming the victims of this invasion of privacy. If I leave the door to my house open unknowingly, and some thief walks in and steals my furniture, only the thief is to blame. It wasn’t that long ago that it was OK to ask a rape victim why she wore a short skirt or lacy top on the night of her attack. Now rape shield laws prohibit that line of questioning because we have come to understand that if a rape or sexual assault occurred, the blame only lies with the guilty party, not the victim. We need to reinvigorate that thought process and debate when it comes to hacked nude images – stop focusing on why these actressess took nudes of themselves. Instead focus on catching the folks who broke the law and victimized them. Focus on why as bright as everyone allegedly is over at Apple, they couldn’t figure out a way to tell users that their private images (and who knows what other private information)  would be stored forever on the cloud without their knowledge or consent. XVALA said in a press release for the show.“We share our secrets with technology, And when we do, our privacy becomes accessible to others.”  Yes, but only if someone breaks the law. We share our secrets over the telephone too but no one condones phone tapping as “art.”  This is no different than someone exhibiting recorded conversations obtained through illegal eavesdropping. Let’s get some of our privacy back and say its not OK to  publish stolen property.          

[UPDATE] XVALA wisely decided to cancel the show’s use of the stolen photos over expressed found empathy after seeing a petition signed by thousands of folks opposed to his use of the stolen images. In an EOnline Report about the cancellation XVALA stated:

“It wasn’t just about being ‘hacked’ images anymore, but now presented in the media as stolen property,People were identifying with Jennifer Lawrence’s and Kate Upton’s victimization, much more than I had anticipated, which is powerfully persuasive.”

So this artist just realized that hacked = stolen only because the “media” portrayed it that way? And he didn’t think folks would empathize with these women when he profited off of their stolen, private, nude images? He can’t be that thick and short-sighted. I suspect that this new found empathy was caused by some sound legal advice.

Gallery owner Cory Allen tried to put his best spin on it as well saying:  “It was inspiring to see people take action through a petition, signing their name and not just commenting on a thread.”  Yes, you know you have crossed the bounds of decency and legality when citizens today take the extraordinary measure of clicking “Yes” on an               E-petition; it’s reminiscent of Gandhi’s famed hunger strikes. .

The only hope is that the population continues to send a message by totally ignoring the still-planned exhibit which will now instead include nude selfies of XVALA. Read the whole E Online  article here:

Aug 21 2014

NY Passes Revenge Porn Law

Earlier this month, NY Governor Andrew Cuomo  signed NY’s version of a Revenge Porn  law. The law creates the offense of “Unlawful Dissemination of Lewd Images.”  It prohibits the sale, publication or distribution of images in which a person is in a stage of full or partial undress or engaged in  a sexual act without their consent.  NY joins 11 other states in having criminal RP laws: Arizona, Colorado, Georgia., Hawaii, Idaho, Maryland., Pennsylvania., Utah, Virginia., California and Wisconsin also have laws on the books.

A few years ago, as part of my work in the field of digital images, I began to be contacted by victims of RP for help. I agreed to part of team of lawyers who agreed to help RP victims who went to the website Together with web publisher Matthew Chan, I then became part of a site called that also looks to help RP victims.  I have used intellectual property law and right-to-privacy statutes to help dozens of victims in states where there are no criminal or civil statutes specifically addressing RP.

Courtesy of

Courtesy of

What surprises me the most, is how many men seem to think that this issue is of no concern to them. To address this issue, Matthew Chan recently posted an article on where he challenged men to think about how they would feel if their daughter, mother, wife or sister were victimized by RP. While this approach is a good way to sensitize men to the issue, there is simply one reason why men should be concerned about Revenge Porn: Because it is wrong and deeply victimizes those whose personal private photos/videos are exposed to the world.  As Matthew points out in his article some men need to be reminded they they have important relationships with women in their lives and that RP can happen to anyone. But more importantly, men should be asked how they would feel if RP had happened to THEM. How would they like it if they walked into work one day and dozens of co-workers were looking at their computer screens to ogle naked pictures of THEM that they took in trust with a loved one. I suspect the only reason some men “”don’t get it” is because it has not happened to enough men for the general male population to not see this as a “women’s issue.”

That is one of the reasons that folks who advocate in this arena are pushing for criminalization of RP. Perhaps if RP were made a crime in every state in the nation then more folks would pay attention to it and understand the great harm that comes from it and not engage in the behavior in the first place. I am normally not a fan of the addition of new crimes to the ever-growing list of penal laws.  But my involvement in this area has shown me that many people – particularly men –  do not see this as a big deal.  It would not be a stretch to say that the most often comments heard are “What did she expect?” and  “Who told her to send naked pictures of herself on her phone in the first place?” This kind of reaction reminds me of how courts and others used to treat victims of sexual assault.  Questions would be asked about their prior sexual history or why they chose to wear a particular item of clothing. It took  Rape Shield Laws to turn society’s focus away from blaming the victim and onto the acts of the perpetrator. There was great initial outcry about many parts of the  various rape shield laws that arose from the legal community and from the media.  Now we take it for granted that blaming the victim of a sexual assault is simply not acceptable and most of those questions are now impermissible at trial.

It will take some work but I believe that a fair and workable criminal statute can be drafted. It will serve as a reminder that the victims of RP did nothing wrong – they shared intimate photos with someone they trusted and felt close to  and then were victimized and harmed when that person violated that trust and shared the images. And that’s why everyone should be concerned about it – because it’s wrong. Period end of story.

franklin quote

Jul 29 2014

Whose Skyline Is It Anyway?

Looks like the Port Authority of NY and NJ which  operates many of the City’s tunnels and bridges and the World Trade Center site, has finally moved off of BridgeGate and corruption issues and to to bigger fish. Specifically Fish’s Eddy, a quirky NYC housewares store. The NY Times reports today that Port Authority Lawyer Veronica Rodriguez fired off a cease and desist letter to the popular store (now located on 18th and Broadway or on the web at regarding its series of dishes, glasses and other household items that are part of its “212 New York Skyline” series and “Bridge and Tunnel” series.

The Port Authority is concerned that these two product lines contain drawings of the Twin Towers and the entrances to the Lincoln and Holland Tunnel.  Specifically (and incredibly) the letter states that the depiction of the skyline with the Towers would “evoke thoughts of the Port Authority, the twin towers, W.T.C. and the September 11th terrorist attacks.”  Take a look at some of the offending items from the company’s online catalog:


212 dinner platebridge and tunnel items


Don’t these whimsical, original representations of City landmarks just make you immediately think of 9-11? Don’t they just scream “Port Authority!” at you?  Well according to Ms. Rodriguez’ the items  are  “unfairly reaping a benefit from an association with the Port Authority and the [9-11] attacks.”  But can a municipal agency control the depiction of its municipal property?  The government normally does not own any intellectual property – everything it owns is in the public domain. But it may have aright to trademark certain items or logos when it acts in a commercial enterprise. And that may be the crux of the Port Authority’s argument here.  Once you decide to pay $24 to visit the site of the World Trade Center Attacks, you will be led to a gift shop where you can purchase Freedom Tower and other site-related memorabilia. Since that just opened this year, that may explain why the Port Authority decided to write Fish’s Eddy now even though the lines have been available for sale for over 10 years the last thing you ever want to do is get in business competing with the government.- you’re better off opening up a pork store across the street from Tony Soprano’s place.

But to be a valid trademark claim they would have to prove that the sale of these items confuses consumers into thinking they are officially sold by the Port Authority or that hey diluted the market and trademark of the Port Authority items. Here are some items from the City’s Official “World Trade Center and 9-11 Commemorative Collection” (


CA-WTC Statue clock_nyc_skyline_silver_WTC Ornament


I personally like the Christmas “We Will Never Forget” ornament. There is simply no chance that a consumer would think that Fish’s Eddy products come from the official City Store as they are markedly different and do not specifically even highlight the Towers.  Incidentally, I wonder if the Port Authority or the City got permission from the owners of the Chrysler Building and the Empire State Building to use their iconic buildings in the snow globe depicted above. Well guess what, chances are they would not have to because while their architectural plans are copyrighted   and it would be an infringement to recreate the buildings using those plans, making a simple representation of the shape or outline of the buildings would not violate that copyright.  These buildings, tunnels, and features of the skyline cannot be privately protected from this form of representation.

It is also disingenuous and startling that the PA would think that Fish’s Eddy sale of these products “interferes with the Port Authority’s control of its own reputation.”  How? And what reputation is that exactly? JFK and LGA are perennially on the top five list of worst airports in the country; we recently learned that the NJ Governor’s office shut down a PA bridge on political whim; it took forever to get an agreement on the design and construction of the Twin Towers’ replacement; try crossing the Holland Tunnel on a Friday evening and see how long it takes you.  In short, the Port Authority should be so lucky  to be affiliated with these products.If they were smart that ‘s why they would be writing to the store about -getting a working relationship established so that they can be added to the “9-11 Commemorative Collection” they hawk on their own.

The Times reports that Fish’s Eddy successfully stood up to a similar claim brought by the owners of the Chrysler Building about 15-16 years ago. If a private owner did not succeed, a public entity has even less of a shot. I think the PA should think of a better way of financing the site than by bringing an infringement claim with little to no chance of success. They should be addressing why their ticket prices are so high:  $24 for adults; $18 for Vets and Seniors; $15 for kids over 7;  and $12 for NYPD, NYFD and PAPD officers(though it is free on Tuesdays between 5pm and 7pm!). Making the 9-11 Memorial and Museum affordable for families and tourists would go a long way to enhancing the Port Authority’s reputation.   I don’t know why they think it has any value now worth protecting from this china.






Older posts «