Radical Right-Wing Lawyer Fights With Revenge Porn Site On Twitter -- Everyone Wins

It's a legal conflagration that makes you want to cast a pox on both houses and curl up in the fetal position and pray for humanity.

In responding to JoePa’s article regarding my fight against revenge pornography, I first wish to recite a story about Miyamoto Musashi, legendary Japanese samurai and author of The Book of Five Rings, and his battle Sasaki Kojirō.  According to legend, the duel between these two rival swordsmen took place on the remote Ganryū Island.  It was part of Musashi’s strategy to use deception and psychological torments to unnerve his opponents, and such was the case with this particular battle.

You see, Kojirō was a prominent and well respected man who, like most samurai, came from a noble Japanese family that strictly followed principles of Bushido.  In the case of Kojirō he insulted his opponent not only by arriving to the duel several hours late, but also by bring with him a wooden sword that he had fashioned from an oar for use during the duel.  The furious Kojirō shouted insults at him, but Musashi just smiled as the Kojirō leapt into battle in a rage.  As Kojirō shouted insults at him, but Musashi just smiled. Blinded by rage at this perceived insult, Kojirō leapt into combat.  After a single blow to the chest, Musashi checked Kojirō for signs of life.  There were none.

ATL’s very own JoePa seemed to enjoy writing his little blurb about me yesterday and, suffice to say, I was surprised to find myself the subject of any article on ATL.  I am glad, however, that JoePa at least chose to make the article related to revenge pornography because this is truly a First Amendment issue that needs to be examined.  Perhaps, if it goes far enough, it may even be considered worthy of discussion during a “Law and Pornography” course at one of Cooley’s five…I mean four campuses.

For those who don’t know, revenge pornography websites such as PinkMeth.com (a defendant in the lawsuit I filed) are places where people can upload pornographic images of others without their consent.[1] It is called “revenge pornography” because content typically comes from scorned lovers who happened to have kept naughty pictures of their ex in a safe place for use during future sexual encounters with Miss Michigan.  In the mood for revenge, the photographs are submitted to the website and catalogued for easy search.  In the case of PinkMeth, users are permitted to comment on these photographs and are even provided links to the subject’s social media pages.  Rapey indeed.

Due to widespread reports of this problem from 2012 – 2013, some state legislatures began to act.  Wisconsin, New Jersey, and California were the first states to pass a laws that explicitly address revenge pornography.  In Florida, an anti-revenge pornography bill unanimously passed the state senate earlier this year.  Revenge pornographers such as Hunter Moore and Kevin Bollaert have been indicted for their revenge pornography activities.  It would seem that perverts like them are not very high on the list of campaign donors to such officials in any state.  Not that it should matter.

My home state of Texas does not have a law explicitly related to revenge pornography, but does has an offense titled “improper photography” which makes it a state jail felony offense to “photograph or by videotape or other electronic means record, broadcast, or transmits a visual image of another without the other person’s consent and with intent to arouse or gratify the sexual desire of any person.”[2]  Simply put, those who operate or contribute to revenge pornography websites are committing a felony in Texas.  Even if Texas sees its improper photography statute is struck down, private causes of action for intrusion of seclusion and public disclosure of private facts will not be affected by such a ruling.  I doubt many district attorneys in Texas would have trouble obtaining indictments for similar offenses.

This particular case, however, has taken bit of a nasty turn.  As demonstrated in JoePa’s article, a Twitter-based tit-for-tat between the PinkMeth predators and myself has developed.  This was, of course, completely intentional.

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The biggest problem with suing revenge pornography websites in the past has been locating an individual to serve with legal process.  Because revenge pornographers have a habit of being indicted, they try to make themselves difficult to serve.  This time, however, PinkMeth made a fatal mistake:  they decided to name my good friend Kyle Bristow as their attorney and provide the world with his PO Box address, e-mail address, and telephone number.  This was apparently in retaliation for past activities that Kyle and I have conducted against them.  On their website, they direct that all “removal requests” for PinkMeth be sent to Kyle.  In doing so, they have implied that Kyle has at least some control over the website and that his address was their home office.  PinkMeth even sent e-mails to some of the women depicted on the website in which they explicitly stated that he was the attorney handling removal requests.

After obtaining affidavits from several of the women to whom PinkMeth represented that Kyle was their attorney, I arranged to have PinkMeth served through him.  Of course, I wanted to make sure that they actually did receive a copy of the lawsuit.  To that end, I began to taunt them on Twitter.  It was never about saber rattling: I wanted the operators of PinkMeth to be angry with me and make a mistake so big it would all but ensure their destruction.  The strategy paid off in spades.  Not only did they acknowledge receipt through their Twitter account, they published the lawsuit in its entirety (even the requests for admissions) on the front page of PinkMeth.com.[3]  In short, they made the same mistake as Kojirō in his battle against Musashi:  they entered battle in the wrong mindset.  Few tears are likely to be shed for PinkMeth at a default judgment hearing.

That is precisely where this case is headed.  There has been a whole lot of talk about supposed ‘defenses’ that PinkMeth might have.  There is one beautiful thing about affirmative defenses: they have to be plead.  In other words, PinkMeth is left with one of two equally dissatisfying choices: (a) File an answer contesting the lawsuit.  If they were to do so, they would have no choice but to reveal their identities (if not in the answer itself, then surely in discovery).  This would likely result in numerous additional lawsuits and probably a fair number of felony indictments; or (b) allow a default judgment to be taken against them and deal with the likely issuance of a permanent injunction that will essentially destroy their ability to operate the PinkMeth website.  In either case, my client wins and they lose.

In closing, I have had to deal with a fair number of critics who claim that the PinkMeth case is frivolous because, if it is not precluded by the First Amendment, it is almost certainly precluded by Section 230 of the Communications Decency Act.  The First Amendment claims are patently absurd.  Years of precedent in the area of defamation law have clearly established that the First Amendment offers no defense when a person’s “speech” amounts to the commission of a crime or a tort.  If such reasoning applied to defamation claims it would certainly apply to invasion of privacy torts.  Defamation has historically been treated with a much higher level of scrutiny than invasion of privacy.

As for Section 230, it is clear from the PinkMeth website and the method through which it operates that the CDA does not apply.  First and foremost, PinkMeth is openly soliciting criminal activity and is even paying people in Bitcoin for it.  This provision of the CDA would almost certainly not be interpreted as providing safe harbor to a website involved in paying people to conduct illicit activity.[4]  Second, there is a fair amount of editing that goes into the PinkMeth website.  This is not simply user submitted content we are talking about.  The PinkMeth operators are categorizing these photographs by the victim’s name, city, and state of residence.  They are linking social media profiles as well.  PinkMeth is not simply republishing third party content: it is obtaining or purchasing content from third parties and then using that content to create and publish something of its own.

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The last thing I want to point out is my motivation for doing this.  I am not being paid any fee to fight PinkMeth and I am not, as JoePa suggested, fighting them because I feel some need to protect fair skinned, blonde haired, and blue eyed Christian women.  This case is about a personal friend of mine who was a victim, and I happened to be in a position to so something about it.  She is a friend and I would have fought just as hard even if she happened to look… like a Walrus.



[1] JoePa incorrectly states that PinkMeth is difficult to access.  Anybody can access it through the “Clearnet” access points published on PinkMeth.com
[2] The Texas Court of Criminal Appeals heard oral arguments May 7, 2014 to determine whether this statute is unconstitutional.
[3] So much for their ability to prove lack of conscious indifference if they ever wanted to challenge a default judgment.  See Strackbein v. Prewitt, 671 S.W.2d 37 (Tex. 1984).
[4] 47 U.S.C § 230(e)
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