Nude pictures, hackers, advice, blame and freedom

As I’m sure you’ve heard, nude photos of various celebrities (such as Jennifer Lawrence and Rihanna) have been leaked online — apparently, as a result of hackers breaking into some storage system (maybe Apple’s iCloud, maybe not). Some people have predictably used this as an occasion to fault the celebrities for having the pictures out there in the first place, at least on a computer (or on cloud storage).

To my knowledge, no one thinks this excuses the hackers’ behavior. But no one knows who the hackers are, and they aren’t famous, so the debate has instead chiefly been about whether faulting the celebrities on this score is wise, evil, realistic, misogynistic, or some mix of the above.

Similar disputes have likewise swirled in the past, most prominently as to advice to women on how to decrease their chances of being raped (or, sometimes, of being taken advantage of when drunk, whether or not the two are the same). One side says, “You’re blaming the victim, and minimizing the wrongfulness of what the perpetrator did.” The other says, “We agree that what the perpetrators did was wrong, but we’re just trying to teach people how to decrease their likelihood of being victims.” (A smaller group on the second side sometimes says, “Well, the perpetrators couldn’t help themselves,” but that’s not the bulk of that side, it seems to me.)

The debates are reminiscent — except that the political polarity is sometimes (not always) reversed — of the “root causes” debates about what society/the government/the taxpayers should have done to prevent crime in the first place. One side says, “You’re blaming the victim, and minimizing the wrongfulness of what the perpetrator did.” The other says, “We agree that what the perpetrators did was wrong, but we’re just trying to change social/legal institutions to decrease the likelihood of such crime.” (A smaller group on the second side sometimes says, as the song goes, “Only a lad / You really can’t blame him / Only a lad / Society made him.”)

The trouble, it seems to me, is that the debates end up focusing too much on what is said and too little on how it is said.

1. We certainly routinely get advice, often eminently sound advice — some from parents, some from the media, some from the government — about how to protect ourselves against crime. Don’t walk around in the dark in bad parts of town. Don’t leave valuables visible in your car.

Don’t leave your car unlocked with the keys in the ignition. (People used to do that, apparently, though now this advice isn’t really necessary, likely because it has been given and accepted.) Don’t get drunk, or you might be easier to victimize (and not just more likely to commit crimes yourself). It’s too bad that the world is such that we need this advice, but it’s good advice.

Now some of this advice may be unsound. I’m skeptical, for instance, that women following advice not to wear short skirts would materially decrease their chances of getting raped. Likewise, at least some “root causes”-based advice for preventing crime strikes me as empirically misguided.

On the other hand, women following advice not to get drunk will, I think, materially decrease their probability of getting victimized in a wide range of ways. (Advising men not to get drunk will decrease this probability, too, though men tend to face somewhat different threats than women.)

One’s ability to reason is a pretty valuable thing, partly because its helps us prevent and get out of dangerous situations. Voluntarily suppressing one’s reasoning (getting drunk) thus increases danger. That’s just a fact of human existence, and sometimes a useful one to remind people about. Likewise, returning to the “root causes” analogy, surely there are some things we can figure out about what legal rules and social conditions lead to greater crime, and that we can try to change in a way that prevents crime (without excusing the criminals’ misdeeds).

2. This advice is not, as such, blaming the victim; it is advising people how to avoid getting victimized. At the same time, “Do X to avoid getting victimized” often implicitly carries the message “You didn’t do X, you were victimized, so therefore you were foolish.” This doesn’t necessarily (or even usually) remove the blame from the criminal, nor even blames the victim to the same extent as the criminal — the criminal, after all, is actively malevolent, and not just foolish.

But it does implicitly involve some degree of blame for failing to do smart things. In the non-criminal context, it would be analogous to, say, noting that someone injured in an accident could likely have avoided his injuries by wearing a seat belt. Is such an observation blaming the person for his injury? Yes, in some measure, and likely justifiably so.

3. The problem, it seems to me, isn’t with the advice, or even the inherent blame that in some measure goes along with the advice. Rather, it’s with two related things about how the advice is given.

First, much advice of this sort wrongly fails to acknowledge that the advice can be costly to take. No, no one has to take nude selfies or e-mail them to their lovers. But avoiding this behavior for fear that you’ll be hacked means accepting a limit on one’s autonomy generally (and the autonomy of one’s erotic life in particular). Likewise, avoiding going out alone at night — at least in certain places — for fear of being raped means accepting a much greater limit on one’s autonomy.

People who value freedom don’t like that. People who value freedom shouldn’t like it. Making it sound like the person is a fool for not limiting her own freedom this way ignores that cost to freedom.

Second, and relatedly, it’s one thing to implicitly fault someone, and another thing to do so more expressly — especially when that person has just been victimized and deserves our sympathetic outrage (or just sympathy, if the incident is an accident and not a crime). When a friend is in the hospital after the car accident, that’s a bad occasion to tell people that he could have been safe and sound if he’d only worn a seat belt.

Likewise, when someone has been raped or beaten, that’s a bad occasion to give people useful advice about not being alone in dangerous places, or about not dating the ex-girlfriend of a notoriously jealous thug. (I deliberately give here examples of behavior that is in no way morally culpable, that in a just world everyone should be free to engage in, and that can only be avoided at substantial cost to one’s freedom — but that, in our world, is still safest to avoid.) Now, the release of nude photographs isn’t quite in the same category as a brutal physical attack, but it’s still pretty bad stuff; and chiding the victim strikes me as similarly out of place there.

It’s not so much, I think, that the advice dilutes the blame imposed on the culpable party. Sometimes it might, but usually not.

Rather, it’s that the advice, framed as an observation of the victim’s mistake, dilutes the sympathetic outrage that we should be offering to the victim, and to those who empathize with the victim. Law-abiding, rights-respecting people expect other such people to condemn lawbreakers and rights violators, and to express sympathy for their victims. It is, I think, a social duty. It is a duty related to kindness, a sense of the community of the law-abiding, and norm reinforcement, not a duty stemming from law or even obligation to respect others’ rights. But some of our most important social duties fall in that category. The duty applies even if the victims exercised a bit more freedom than is wise under the circumstances. And turning the incident into an occasion to point to the victims’ errors weakens the force of this.

4. Now I should acknowledge that just forgoing any connection between specific victims and a warning about how to minimize dangers — or any warning at all at the time when the victimization is in the news — would itself be pretty costly. Advice tethered to an event in the news, and to particular famous people, may be better remembered (and better followed) than similar advice months later.

But at least, it seems to me, we should try to frame the advice in a way that minimizes the express faulting of the victim, even when some implicit faulting is inevitable. “The leaking of the nude photographs of X, Y, and Z highlights the dangers of keeping such things on the computer; it’s a shame that we have to be fearful of such things, but it’s prudent to take that risk into account” will do the job quite well, I think. “X, Y, and Z were foolish for keeping such things on the computer” is going further than necessary. And “It’s so simple — just don’t do such things” is, I think, wrongly minimizing the cost that is inevitably present whenever people have to constrain their freedom for fear of criminals.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · September 3