Another Day, Another Sexting Politician

My first reaction to Congressman Anthony Weiner’s admission was, “Oh… my… god!” My second reaction was to laugh — no matter how old we men get, we are all still 12 year old boys inside — and think of a post filled with double entendre. My third reaction was to wonder what this deeply unfortunate story means for tech law.

(NOTE: Any double entendre is purely unintentional! My mother reads these things!).

Brooklyn Congressman Anthony Weiner, a man I have had the opportunity to meet and even challenge to running race, first alleged that his Twitter account had been hacked, then maintained that he did not send the tweet but the image could have been of him and then, finally and mercifully, admitted that he sent the tweet and was carrying on “inappropriate relationships” with “several” women that he met online. Minority Leader Nancy Pelosi has called for an ethics investigation, conservative pundits are calling for the Congressman’s head and the rest of us are probably unmoved. We live in a world where Eric Massa, Christopher Smith, Mark Foley and so many other politicians are sexually crazed and hooked into a virtual world they either do not understand or are simply too arrogant to care about.

Weinergate has obvious lessons on the perils of throwing no caution to the wind regarding your Internet presence. It also reminds us that some men in power tend to lose their grip on reality. But, you do not have to be in Congress to be victimized by careless, stupid digital behavior.

If one divorcing spouse wanted to prove infidelity, perhaps as part of denying a 50/50 split of marital assets, text messages, emails and self-taken photographs on the other spouses cell phone, Twitter history and email inbox may be fair game. Just last year, a New York state judge in part used evidence of a man’s sexually charged conversations with various women online to deny him child custody. Notably, there had been no evidence that this man ever met any of these women in person or committed any sexual act. He messaged them online, adding jpegs of himself. Another judge in New Hampshire refused to use evidence of a divorcing spouse’s virtual interactions without evidence of an actual affair outside the digital universe. Family court judges have wide latitude in this area, but what are your thoughts about these cases?

Outside of the family law context, lewd online behavior can trigger morality clauses in contracts. Assuming for the moment that morality clauses — provisions in contracts that restrict certain elements of or behaviors in a party’s personal life — are even enforceable, sending a lewd photograph of yourself to “several” women with whom you are having “inappropriate relationship[s]” could be grounds for dismissal.

The operative question is whether evidence of digital hanky-panky, without even a hint of actual infidelity or inappropriateness in real life, is enough wrongdoing in these and other contexts. It seems incongruous to simultaneously recognize the pervasiveness and salience of digital interaction today and still diminish the importance of digital inappropriate behavior below face-to-face conduct. We are both virtual and physical beings now. Excusing a person’s bad conduct in the former simply because it happened through packets of 1’s and 0’s on the Internet seems antiquated and a recipe for a blind spot in social norms.

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6 Responses

  1. shg says:

    “no matter how old we men get, we are all still 12 year old boys inside…”

    Speak for yourself.

  2. Ari Waldman says:

    @shg: thank you for your comment. fair enough. i should not have used slight of hand to encompass all men. “some men will always be 12 year old boys inside” would have been more appropriate.

  3. Jerry E. Stephens says:

    I hope you will explore the line “we are both virtual and physical beings now” a little further. Certainly many of us are not technologically adept. And the case may very well be that the virtual has overtaken the ability of many of us to control (or limit) how we are presented to the world. Even involuntarily presented?

  4. Ari Waldman says:

    @jerry: thank you for your comment. that is precisely what my current project is, in part, about. this is definitely something i will come back to. more shortly!

  5. ABG says:

    Although the whole affair smacks of poor judgment and dishonesty, the “inappropriateness” of Weiner’s underlying behavior appears unquestioned in the resulting discussions, and I think it’s important (and way beyond the scope of a comments thread) to unpack exactly where the impropriety lies. Is it a form of infidelity, because online and offline flirting are/should be deemed equivalent? Or is it simply immoral, regardless of relationship status, to display sexual images of oneself online? These are highly debatable questions that should not be glossed over. Very much look forward to hearing more!

  6. Dee says:

    Not a lawyer, so I kind of feel like a sneak whenever Concurring Opinions post pops up on my feed, but here’s my question: What’s the difference between online flirting and looking at porn? By no means do I condone Weiner’s actions, but since he hasn’t done anything physically wrong (as far as we know) and none of the women charged him with harassment or assault, really, what is the big deal? Lastly, I think that your last point, “The operative question is whether evidence of digital hanky-panky, without even a hint of actual infidelity or inappropriateness in real life, is enough wrongdoing in these and other contexts,” is an important one in this context and in potential divorces, etc. But why can’t we exist differently virtually? Hope some clarification comes soon! Not because I want to share pics on the Internets. . . .

    (Btw, I am NOT a man, but my mind worked just like a twelve year old boy or girl’s when this scandal came out. Or a college kid’s? Or a dirty old man’s mind? Randy old woman? Whatever.)