Category Archives: Weiner
Last Post on the Weiner Scandal
This horse has not just been beaten to death, it has been fully processed into dog food. However, I just wanted to bring your attention to a great post by Alexanda Petri on the Washington Post’s ComPost blog. She makes some great points concerning “privacy” or the non-existence thereof, on the Internet, and why these sorts of scandals will never go away. I think this paragraph really sums up the article.
But if the Weiner scandal were good for anything — and it won’t be, because as long as we view his sin as Getting Caught After Idiotically Sending The Picture To Everyone Rather Than Just Someone, we won’t mend our ways — it would be for puncturing the delusion that we can get away with things online that we could not get away with in real life. Sure, online sins are comparatively venial. The Internet, as Shakespeare’s porter said of drink, provokes the desire but takes away the performance. But they are infinitely more public. Before, we only heard what you had done. Now we have pictures, and added to the thrill of watching Weiner fall is our thrill at not being caught. “How dare he do that?” we laugh knowingly. “The fool! Who sends such lewd images?” More people than you’d think. Married. Single. In-between. On the Webcam network ChatRoulette, one in four cameras is aimed at the same anatomical region that Weiner favored.
I am not going to embed or post a link to copyrighted material posted unlawfully on youtube, but please feel free to go to youtube and do a search for “The Internet is for Porn”, and listen to the delightful sesame street parody, which illustrates the entire point of this post, and why in the age of the internet, political and celebrity sex scandals will never disappear.
In the alternative, I will post a video signifying that this indeed, will be the “last post” on the subject of the Weiner scandal. (Unrelated, but related to the video, God Bless all our veterans, who served our country with more honor and dignity than a certain ex-congressman from Queens, NY.)
So long!
Tennessee “cyber-bullying” Law Won’t Pass Constitutional Muster
A few days ago I wrote about an article about a proposed bill in Tennessee that would make it illegal to share, of all things, sharing your Netflix password. Now, Tennessee is cracking down on pictures you post on twitter, and facebook. It seems to me that Tennessee is the state now at the forefront at regulating how we use the internet.
At the end of last month Tennessee Governor Bill Halsam signed into law, HB 300 , a bill whose stated purpose is to crack down on cyberstalking. However, the vague language of the bill make it appear to do much more. It essentially makes illegal sexting, posting a potentially distressing images on facebook, even tweeting a picture of your private parts in your underwear.
From Volokh Conspiracy:
Friday, a new Tennessee law was changed to provide (new material italicized):
(a) A person commits an offense who intentionally:
(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:
(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or
(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
Under the vague language of this law, it is possible that disgraced, soon-to-be-former congressman, Anthony Weiner, could have broken the law in Tennessee if there was any indication that the recipient of his tweets, with nothing more than reckless intent, if the viewer was intimidated by the image.
It seems though, that this law would most likely be void for vagueness, in that it would be impossible to enforce given the first amendment implications. The void for vagueness doctrine was articulated by Justice Sutherland in the case, Connally v. General Construction Co., 269 U.S. 385 (1926), where he states:
[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
In this case, the most vague term is “without legitimate purpose”, in that the law does not explain what a legitimate purpose is, or isn’t. There are no guidelines, so the individual is forced to “guess” on how to define it. If the law does not specifically enumerate what is and what is not allowed, then it is constitutionally void for vagueness, and the court will nullify the law.
The first amendment implications are vast, particularly if the image transmitted was of a pornographic nature. The test for describing whether or not an image is obscene comes from the case of Miller v. California, 413 U.S. 15 (1973). Miller creates a three pronged approach for determining whether an image is obscene:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
If any of the three items is missing, then the image or content is protected by free speech. In practice, the Miller test has lead to a opening wide the prevalence of pornographic imagery because it is difficult to create a law that sets standards which do not run afoul of void for vagueness. Laws which are upheld tend to deal with child pornography and beastiality.
All things considered it is very likely that the new Tennessee Law will run afoul of both free speech interests and void for vagueness.
Was it Weiner’s Wiener?
Although this may be a mere coincidence, religious theorists would lead you to believe that this could be taken as the evidence of a Divine Being, for the chances for randomness of this golden double entendre is so remote, it would defy statistical odds (I apologize in advance, as this post will be full of puns). A member of Congress, married to Secretary of State Hilary Clinton’s long time aide, who happens to have the unfortunate last name of Weiner, has a picture of a semi-erect phallus hidden in boxer shorts tweeted to a 21-year old college coed, Gennette Cordova. If it’s a hacker, then it is no coincidence, no miracle, just someone who thought it would be fun to mess with a congressman, without considering the possible consequences. This does beg the question: Was it Weiner’s wiener?
According to “The Fix“, Chris Cillizza’s political blog in “The Washington Post“, Congressman Weiner cannot state with certitude whether or not the picture was him. Never-the-less, he denies posting the picture on yfrog, and tweeting it to the Seattle area journalism student. He does admit that this incidence has affected him and apologized to the media saying “I am sorry I was a little stiff the other day” (No I did not make that up, obviously the Congressman would not be offended by the jokes in this post).
What are the legal implications of this type of activity? First let’s assume that it can be shown that Congressman Weiner did send the picture:
Sexual Harassment
The possibility of a sexual harrasment complaint or cause of action is minimal. First, there needs to be evidence that Weiner did in fact tweet the picture of his wiener. Second, we need to look into the reltionship between Weiner and Cordova. Sexual Harassment is the unwanted sexual advances, coercion, intimidation or bullying of a sexual nature, or the promise of reward for sexual favors. Even if Congressman Weiner did tweet the picture, it is highly unlikely that the incident would “rise to the level” of sexual harassment because they both admit that they had never met each other.
Cyberstalking
Again, assuming that it can be shown that Weiner did tweet the pic, is it possible, but not likely, that the action could be deemed cyberstalking. Cyberstalking is the use of the internet to threaten or intimidate an individual sexually, on a systematic basis; or the use of the internet to arrange a meeting with the intent of using the meeting to commit a sexual crime. Whether or not this can be considered cyberstalking is dependent largely on whether or not it was systematic. Since by all accounts, this was a one time incident, it is hard to prove that their was any systematic effort to harm Ms. Cordova, so it is unlikely that any cyberstalking occured.
Now, assuming the system was hacked, was causes of action could there be against the individual hacker?
Invasion of Privacy
Invasion of privacy is a sort of “supertort” that encompasses several different types of situation. In this situation, two possible torts apply, each depending on whether or not it was Weiner’s weiner that it was tweeted.
If the picture was an accurate representation of the Member’s member, the most applicable type of invasion of privacy would be “public disclosure of private facts”. This type of tort occurs when an individual reveals information which is not of public concern, and the release of which would offend a reasonable person. In this case, the information revealed was the size, shape, and contours… well you get the picture.
The other type of invasion of privacy occurs whether or not the picture was or not of the Congressman, however it is more likely to occur if it was not a real picture. This is the tort of “false light”. False light occurs when an individual publishes information (in this case a picture), with actual malice, that places the individual in a false light, and would be highly objectionable. Let’s assume that their was actual malice, and the picture is highly objectionable. If the picture was false, it was likely that the circumstances surrounding the tweet, the fact that it was the congressman’s twitter account, still places the congressman in a false light. If it the picture was real, this tort would apply if the information revealed was misleading. For example, it would be misleading if it implied is that the congressman is a perverted sex maniac, or just a creepy guy.
Cybercrime
Outside the realm of tort, there is the possibility that a cybercrime occured, depending on the jurisdiction. 25 states and the District of Columbia considers it a crime if someone hacked into an account and distributed lewd content through the invasion of that account. Here depending on where jurisdiction can be determined, the individual who hacked into the account and posted the picture that may or may not be of the Congressman, may have committed a cybercrime.
All of this rests upon whether or not the individual hacker can be caught. Ms. Cordova has stated that she “knows who it is” who “hacked” into Weiner’s account. This is a good step because twitter keeps accurate records of where tweets come from. It should not take long for a computer forensic’s expert to determine the possibility as to whether or not the individual could have hacked into the account. At that point, simple investigative work involving obtaining a warrant and seizing the suspect’s computers could yield the evidence necessary to charge the individual with a cybercrime.
UPDATE! (6/3/2011) 10:30am
Jon Stewart and the Daily Show have their take on the scandal.
Update 6/7/2011 11:36am
Turns out it was Weiner’s Wiener.
James Skyles
