After We Mope, We Act

jones and where we go next

Well, it’s here.

The one we’ve waited more than 29 months for.

The opinion in Ex parte Jones.

And it’s …

disappointing.

Here’s its first sentence:

There does not seem to be a dispute that the classic “revenge porn” scenario—two people take intimate sexual photographs, and one person decides to post them on the Internet without the consent of the other—could be a viable set of facts to support the prosecution of the person who disseminates the pictures.

This is laughably wrong, and the opinion doesn’t get better after this.

Had the court read the briefs, it would have seen that this was in fact not just a dispute, but the core dispute of the case: The State contended that such facts support a constitutional prosecution, and the defense contended that, because the posting in that scenario falls into no recognized category of historically unprotected speech, they do not.

Whether the State or the defense is right depends on whether the United States Supreme Court really meant it when it said, in 2…