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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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