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By Aaron Bady
Anyone claiming to be an expert is selling something. I brandish my ignorance like a crucifix at vampires.
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Creepshots and the Self-Fulfilling Prophecy of “Free Speech”

If “Violentacrez” was seen as a criminal, unmasking him would be universally understood to be a praiseworthy thing to do. Sheltering a criminal is not something anyone defends; what they do, instead, is argue that the criminal in question is not really a criminal, or that the law is unjust. But if you accept the legitimacy of the law, and if you accept that the criminal in question broke it, then there is no virtue to be had in sheltering him. To the extent that you accept that an act is legitimately criminal, in other words, free speech protections do not apply to it. This is a subtle point, but it’s also not that controversial: as the famous “fire in a crowded theater” example demonstrates, “Free Speech” is not and cannot be a blanket protection of all speech, as such, but the right to speak without fear of being prosecuted simply for the communicative content of that speech. If your speech is assault, it will be prosecuted as such; if your speech is conspiracy to commit murder (or god help you, terrorism), it will be prosecuted as such. If your speech is criminal, it is not protected.

By contrast, it is only when you believe that an act is not criminal that prosecuting it, for any reason, will seem like a violation of free speech (as so many people seem to believe). It is only when society has no legitimate interest in regulating, prohibiting, or punishing a particular form of behavior, that it will seem to you that “free speech” protects it. Otherwise, we accept all manner of infringements on speech. It’s just that, on those occasions, we understand that speech to be a vehicle for some other kind of act or violation. In those cases, it isn’t the speech that’s being criminalized, but the act of violence it’s being used to commit.

I’m not interested in what the actual law actually says, however; I’m interested in what this distinction tells us about what we believe to be legitimately criminal, what kinds of behaviors we believe society has a legitimate interest in regulating or prohibiting. This is what people mean when they talk about the first amendment, after all, since Congress is not threatening to make any law prohibiting Adrian Chen from outing a scumbag on Reddit. The argument is about what the law should be. And this is important: the law is one thing, but our legal “culture” (our “should be”) is something slightly different. It’s the way we understand and describe ourselves to have a common social interest in promoting, protecting, or criminalizing something. Legal culture not only describes how and where the actual law is enforced—such that some criminal offenses are treated much more harshly than others—but our cultural beliefs are often part of the process by which the law evolves and changes.

For example, our legal practice around torture and legal due process for brown people changed after 9-11, far less because the actual law changed than because a whole lot of people agreed (even by their silent assent) that it was okay for them to change. “Stop and Frisk” is only legal because a lot of people are okay with it. And so forth. Rape is illegal, but a lot of rapes are, in practice, legalized because the victim wore a short skirt, or got drunk, or was raped by a “nice guy,” or any number of other factors. And when Occupiers slept in tents in public parks, for example, they often did so in violation of the law. A lot of people were appalled to see police using tear gas, riot clubs, and rubber bullets to drive them out, because a ten o’clock camping violation is not the kind of crime that most people see as requiring violent force; at most, it is, and should be, a minor civil infraction.  But enough people were okay with seeing dirty hippy occupier anarchist scum getting arrested and beaten for breaking the rules that the police were able to get away with doing it.

Put differently, the point is that law, on its own, is often not really the actual determining factor in determining how “the law” is actually adjudicated. The words might be there on the books, after all, but our culture tells us how to read and interpret them. For a wonderful explication of this idea, see Desmond Manderson’s paper “Trust US Justice: Popular Culture and the Law” or listen to him lecture on it here. Scalia and Thomas might pretend to believe that the law can speak for itself, but they’re either liars or stupid, and I don’t care to argue with either class of person. So put them aside. And whether or not the sorts of things Violentacrez did on Reddit were actually illegal is another question I’m uninterested in trying to answer, for all sorts of reasons, starting with the Victorian moralism and indifference to suffering that informs how laws about obscenity are written.

What I want to observe, then, is simply this: when people invoke “free speech” to defend a person’s right to take pictures of unwilling women and circulate those pictures on the internet, they are saying that it is okay to do so. They are saying that society has no legitimate interest in protecting a woman’s right not to have pictures of her body circulated without her consent. Her consent is not important. If all of the things that Michael Brutsch did, as “Violentacrez,” are protected free speech, then we are saying they are legitimate. Freedom of speech only protects the kinds of speech that some version of the social “we” has determined not to be violent. And by saying that what he did was protected, we are determining that those forms of violence against women are not, in fact, violent. And this matters because something so insubstantial as “culture” has a powerful impact on the actual practice of the law. The more we value a man’s right to violate the integrity of women’s bodies, the more stand behind that as merely “speech,” the less we will understand the violation that such acts always imply and propagate. And the more we think this way, the more invisible these forms of violence become. The more we understand creepshots not to be a violation—and circulating them to be a morally neutral act—the less we will be able to understand women to be people who can be violated, since the mere act of occupying a body that can be photographed becomes the consent required to do so.

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41 Responses to “Creepshots and the Self-Fulfilling Prophecy of “Free Speech””

  1. asdfsf says:

    This isn’t just a “women’s issue”, it’s a privacy issue in general. Out of interest, do you think the owners of sites like deserve the same consequences? I doubt publicly outing them would have nearly the same life-ruining effect as it likely has for the male redditor, though, because of how we demonise male sexuality and idolise female. Personally I don’t think it’s ok from either side, but the double standard is unfair.

  2. FM says:

    I’ve been struggling with your writings on free speech not because I completely disagree with your positions on the items themselves (although I am more conflicted than you are), but because it feels like you’re taking an easy high road. As you seek ways to intellectually justify eroding free speech protections, you do so only with stuff that is, as far as I know, separate from your life and interests, nauseating to you and, in your mind, self-evidently grotesque. But is it possible only to limit what you yourself dislike? Claiming so has an air of comforting self-righteousness to it. It’s easy to condemn what you have no stake in and what you yourself are repulsed by. But there are implications to your ideas beyond the immediate situations, and I think it would be more intellectually honest to pursue those ideas deeper into territory in which you are not free of complicity or desire.

  3. My problem here is that it’s not easy to distinguish what kinds of speech we can punish. What violentacrez was doing, with regards to creepshots, was reprehensible. But if we were to start making laws banning certain types of public photography, it’s a very slippery slope. You end up with laws that can easily be interpreted in a way that allows you to restrict legitimate journalism.

    There should be consequences for the kind of actions that violentacrez was taking, but the question is whether or not the consequences should be legal, or social.

    I’m not sure that taking pictures of an unsuspecting person in public constitutes the kind of “assault speech” that we could or should restrict legally.

  4. mike says:

    “By contrast, it is only when you believe that an act is notcriminal that prosecuting it, for any reason, will seem like a violation of free speech.”
    this is such an important sentence. the reason well-mannered men of the internet rush to protect any and all pornography as Free Speech is because they don’t perceive a victim. how that absurd posture can be maintained even when the women depicted are not willing participants is beyond me.
    the first amendment does not ensure men the right to exploit, harass, and rape women. or at least, it shouldn’t.

  5. FM says:

    You’re right that free speech doesn’t protect exploitation, harassment and rape. There are laws to cover those. Same with unwilling participation in porn. (Unless you mean unwilling in the sense that were people able to make a living wage at other jobs then they wouldn’t do it. But that could be said for all sorts of different types of employment.) For a bit of background (albeit outdated now) see Lisa Segal’s essay “False Promises: Anti-pornography Feminism”.

    So you don’t like porn and would probably never be caught dead indulging in it. Okay. What about violent, misogynistic video games? Eminem lyrics? Slasher movies? Books by the Marquis de Sade? Hucklberry Finn? Rush Limbaugh? Where do you draw the line? What about a conservative evangelical Christian who says heretics like Michael Moore, Jon Stewart, the entire crew of MSNBC and heck every writer at The New Inquiry is promoting the idea that conservatives are irrational, stupid and violent — surely that’s encouraging people to see them as less than human and to treat them with contempt (we saw how Joe Biden behaved toward Paul Ryan!) and that could easily lead to violence against conservative evangelical Christians. Well?

    But no, you only want to criminalize that which you don’t like and don’t partake in. You assume other people do because they are perverted or misogynistic or racist or otherwise hateful. They create victims.

    That’s an awfully perilous road. Show how it’s different from for instance the academics who served as literature censors in apartheid South Africa. They gave intellectual justifications for their work. They were protecting their society. They were weeding out only the most dangerous sorts of writings. They were criminalizing speech.

    But you’re not against the good speech! You only want to criminalize the nastiest stuff. The most racist and sexist and perverted. The most degenerate. Yes, degenerate speech. Degenerate art. We’ve heard that before.

    Your morality makes you feel good. You know the truth and everybody who disagrees must be a slimeball. Their motives and pleasures must be disgusting. They contribute to a sick culture. If only they would listen to you. If only they would give you the power to criminalize them! Lock them up. Get them off the streets of your utopia. So you can be happy in your clean and perfect thoughts, undisturbed by the great unwashed.

    Really though the free speech issue is a diversion and a distraction. I’m perfectly happy with Violentacrez being unmasked. Being a high-profile member/leader of a major social networking site and staying completely anonymous are likely mutually exclusive, at least to some extent. To expect total and complete privacy in such a situation is silly. It’s more a matter of etiquette. In general on the internet it’s good to respect people’s anonymity. But violating that etiquette to expose a racist, sexist, homophobic asshole … sure. It’s not good manners, but I don’t think there’s any requirement to respond to such people with good manners. Go for it! Speak!

    Using that situation as an excuse to write about why free speech is ruining our society seems to me awfully disingenuous.

  6. Aaron Bady says:

    Point out where I said that free speech is ruining our society, please.

  7. I think it’s frighteningly easy for people to forget this isn’t a case of someone expressing an uncomfortable or offensive idea. There are actual women who were targeted because they dared to go outside. To treat this as protected speech is to tell women that walking out the front door constitutes consent to appear on a porn site. Reasonable people can disagree about whether it’s possible to craft a law that addresses this concern without having a chilling effect on speech we think should be protected, but the idea that this is no different from denying the Klan the right to march ignores the violation suffered by the actual human beings targeted by these men. Personally I think outing then is a beautifully appropriate response that keeps our legal commitment to free speech while holding predators accountable for their actions.

  8. laripley says:

    So about this peril asserted so breathlessly by defenders of free speech. Canada, the UK, and France all have laws regulating specific kinds of speech. Are they suddenly South Africa?
    Actually the US road is kind of a lone trail on this issue, with much of the rest of the world (parts you or I may like, as well as parts you or I may not like) is on another one.

    Beyond that, it’s depressing how quickly this issue of photographs taken of unconsenting women and girls is turned into “speech.” You are erasing the difference between actual humans (the subjects of the pictures) and fictional characters used to tell a story (unlike Huck and Jim). They are human beings, and their rights ought to be considered. All of this concern regarding art and political dissent is actually a pretty insulting dehumanization of the real people harmed here. People are asserting the right of a person to turn another person’s body into a representation of an argument, over the right of the person photographed to claim their own face and body as theirs. sigh.

  9. Noxx says:

    I’m reasonably confident that our legal system, even as incompetent as it is, can draft a law that successfully draws a line between taking a photograph for legitimate journalism and taking an upskirt shot of an underage girl. And if a journalist is doing the latter, I don’t care how amazing their story is, they should be fired and jailed.

  10. Noxx says:

    Agreed that it’s definitely still creepy, definitely still should be unacceptable, definitely deserves some outing. On the other hand, I can see the perspective of those who would argue that it’s inherently a different degree of crime – the photos on that site (at least the ones I looked at) aren’t specifically of male underwear and genitalia the way upskirt shots are. (Granted, males don’t wear skirts, but again – society.) They are still being objectified and sexualized against their will, but there is not a threat of sexual violence to the same degree – they are being reduced to a pretty face, not to a body to be raped.

  11. TGGP says:

    What should I permitted to do without someone’s consent? Draw a picture from memory? Make insulting comments about them? Insert them as characters in a really terrible work of fan-fiction? Photoshop their heads onto a picture of Hitler? It seems to me that once information (defined very broadly) is out, it’s out. You don’t own the copies of information in the heads of others, or any other sort of data repository.

  12. I absolutely agree with you there. I was more talking about the generic shots of attractive women and whatnot. There are definitely things violentacrez was doing that we could easily write laws to protect people against. (like up-skirt photos)

  13. Shybiker says:

    Brilliant. A perfect analysis of the hollowness of Violentacrez’s defense. And a smart view on the distinction between cultural norms and actual law.

  14. I do feel compelled to say that on one level I don’t think our culture has difficulty “understand[ing] women to be people who can be violated.” Lilli Loofibrorow points out, as you know, that this understanding has failed to be turned on men. Creepshots are taken precisely because they are violations, yet this knowledge doesn’t pass into consciousness as anything pertaining to ethics. Which would be your hope.

  15. Anonymous says:

    As long as its happening to women, you mean. if this was happening to men, suddenly it would be something that needs to be stopped.
    if this stupid creepy pigs don’t care about consent from the underaged girls or women they are photographing and sharing, why the fuck should I care if he didn’t give consent to have his personal information out there too? (which, by the way, isn’t true, since he himself admits he identity was not secret).
    If they don’t need consent from the women, I don’t need their consent to out them.

  16. Anonymous says:

    It won’t have the same “life-ruining” effect because THEY aren’t taking pictures of underaged boys. Because THEY aren’t taking pictures of a dude’s underwear.
    And spare me that outright fucking lie about demonizing male sexuality while idolizing female.
    Rape would actually be a prosecuted crime if that were true. Since its de facto legal, your obvious lie is obvious.
    And, there’d be more than one naked dude mag for women. They wouldn’t nearly exclusively cater to straight dudes.

    ETA: that said, i do agree that it’s creepy, inappropriate and def needs to stop just as “asap” as creepshots.

  17. Not true. I absolutely agree with outing them.

    I also think there SHOULD be legal consequences if the girls are underage, or if you’re doing something like upskirt, etc.

  18. tevic says:

    doesn’t matter..either women are treated equally or they must admit they aren’t also forget it’s easy for women to lie about rape and it’s not unheard of where women have been rapist..”as for the They are still being objectified and sexualized against their will”..have you seen the pictures? a lot of these women are dressing like ..excuse my french..sluts in if they wont to be objectified then they could try dressing modestly in a public place(in fact i think someone should have been arrested for indecent exposure)

  19. tevic says:

    i think it’s offensive that women are given special benefits and are allowed double standards..i’m not talking about any underage school pics i’m talking about the majority of pics of women dressed very inappropriate in public is an idea..if women don’t want “creeps” taking pictures of them in public then dress like a respectable human being..i would say the same thing about some guy we wearing no shirt and a speedo

  20. tevic says:

    “But violating that etiquette to expose a racist, sexist, homophobic asshole..” — so what about atheist who mock religion..should the outed so they can be “taken care of”? I don’t think it’s OK to out anyone based on racism,sexism or may not like their opinion but trying to out them so people can harass them and give them death threats is not cool..and considering the USA has a lot of guns it could lead to something very bad happening(and in all fairness if someone is receiving death threats just because they made a racist,sexist,homophobic joke) they have every right to defend be honest if i see something i don’t like i just ignore it or respond back..i have no desire to ruin someone life because they annoyed me

  21. Just keep it inside your head.

  22. Men who go outside dressed in speedos are not consenting to be conscripted into pornography either.

  23. The right to free speech is important in a democracy. But then, so too is the right to freedom of assembly. Both of these are enumerated in the First Amendment to the Constitution. If your free speech infringes on my right to use public spaces without fear of harassment or exploitation, then you are infringing on my freedom to “peaceably assemble” as the Constitutional framers put it, and thus there must be limits to your speech. Democracy requires it.

  24. How do you explain the plethora of anti-abortion laws, the fact that women are being imprisoned for having miscarriages, and the fact that the conviction rate for rape us under 5%, then, if our culture is so well-acquainted with the idea that women are people, not objects?

  25. No disagreement. I meant only to say that Bady’s phrasing made it sound to me as if our culture doesn’t already view women as violable, which seems firmly established, even a basic definition of femininity. However, yes, the key distinction is people, not objects.

  26. Actually, I take it back. You’ve convinced me: we should all wear burqas.

  27. Oh good lord, my comment really sounds quite nasty doesn’t it? I suddenly fear it’s been upvoted by all these but-no-my-right-to-surreptitiously-photograph-women’s-bodies cracks.

  28. Alr says:

    You’re missing the point of creep shots. Those generic pictures of pretty women are being posted specifically and entirely because of the lack of consent. The photographers are getting of on the power of being able to force a woman to participate in a sex forum. That’s not incidental, it’s the entire reason for the forum. And it’s harassment as surely as being groped.

  29. I get what you’re saying. I just don’t think that people (any people) have a “reasonable expectation of privacy” in public. I don’t think it’s safe for free speech if we limit something like public photography.

    Of course, that does NOT extend to photographing children, upskirts, etc.

    It’s a problem for sure, I’m just not sure the solution is a legal one.

  30. Pecunium says:

    So you are arguing for one social control, against women, and against a different one; against men.

    Women, whom you (or some other man) think are dressed in an, “inappropriate” manner should just accept being held up as objects. Yoga pants, a flowing blouse, a skirt which fails to reach the ground, those cause them to lose the social niceties we extend to, “respectable” people.

    And you are comparing those things (yoga pants, a flowing blouse, a skirt someone can manage to look up) with a “guy wearing no shirt and a speedo”. I see a double standard here and it’s not being held by women.

    I see someone (whom I presume to be male) who has consistently pushed ideas which relegate women to second class citizens; with his cries of false rape, and this nonsense of “they asked for it”, by being female in public, and being aghast that someone who is promoting the treatment of women as nothing more than objects of lust might be held to social account is just horrid (quick, to the fainting couch).

    There’s your double standard. You think Brutsch, et al, ought not be held to account for their actions; because all they did was “hold some women to account.”.

  31. Pecunium says:

    It’s not the taking of the pictures which is the problem. It’s the publishing,

  32. Pecunium says:

    The culture does see “women” as violable, but the definition is narrow. As tevic makes very clear. He says that “respectable” women won’t be dressed in ways that “cause” men to creepshot them.

    Q.E.D. anyone who gets creepshotted wasn’t really a “respectable” woman, and deserves what she gets.

  33. Noxx says:

    Wow, and here I was trying to be reasonable and objective to both sides, and you respond with outright hatred of women. Nice. Women are sluts so they deserve to be raped. Very classy, dude.

  34. Sheelzebub says:

    This has nothing to do with free speech. These guys didn’t post offensive opinions, they took pictures of unconsenting women and girls and posted them–again, without consent.

    But do go on and ignore the actual issue at hand–that they participated in the harassment and exploitation of women and girls, women and girls who did not consent to this. Apparently, going outside and existing in a female body means it’s okay to do whatever to us, and to take our photographs and post them. I’ll note that violentacrez, when he had his pic taken at Reddit meetups, had his face blurred out. Odd how that works.

    Well, if you’re going to use our images without our consent, you’re going to get outed. (And you know what? Doxing has been quite common and none of these guys ever thought it was a problem until it was done to them.) You don’t mind putting our images out there without our consent, your information will get out there.

    Deal with it.

  35. Sheelzebub says:

    OK, if it’s alright to post photos of women and girls they haven’t consented to being taken or shared, it’s okay to post your name and contact info without your consent. Privacy goes both ways.

  36. TGGP says:

    Correct, Sheelzebub.

  37. Franklin says:

    You pretend to be worried about womens’ concent, but I’ll wager you have boatloads of creepshots on a thumb drive. You strike me as a creepy sort of person who cares little for others’ rights.

  38. silverblue says:

    What’s an acceptable method of dressing to you? Cause from all that I’ve read and seen, it doesn’t matter what the f*** I where, I’m still going to be targeted. If I where my traditional dress, a sari (which bares my midriff), are you saying its permissible to degrade me?

  39. tevic says:

    Just understand if you choose to “out someone” any incidents that happen you are responsible for it

  40. Vanessa Iggy says:

    So anytime that I step outside of my house I should just expect this? You know it was bad enough for people to say I shouldn’t be outside at night, or I shouldn’t wear a certain type of clothing, I should be a certain way, I shouldn’t do things that step outside my gender. But to hear a man say that just by stepping outside now is reason enough. Well it makes me hate men. It really fucking does.

  41. Again, I’m not advocating for any of that. I’m not saying anybody should treat you that way. I’m not saying you shouldn’t step outside. I’m saying none of those things.

    I’m saying that I’m not sure there’s a good legal solution.

    You’re putting words in my mouth.

    What happens to journalism if people can legally object to having their picture taken in public?

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