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Mr. Anthony Weiner of Brooklyn and Twitter

ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

A_weiner Coverage of Representative Anthony Weiner's recent misbehavior has focused on his underwear, his chest, his women and his Blackberry. There are a few things we have missed.

Rep. Weiner never billed himself as a holier-than-thou moral crusader, so he is no Larry Craig, David Vitter, Chris Lee or Mark Foley -- men who spent their public careers discriminating against gays for so-called "moral" reasons but had no morals of their own. Andrew Breitbart and Fox News pass over this lack of hypocrisy when they scream bias against the media and Rep. Weiner's liberal supporters. But, while Rep. Weiner may not be a hypocrite, he is still an asshat. A married man should not send pictures of himself in various states of undress to young women. Rep. Weiner is like many men; the fact that he represents New York's 9th congressional district in Brooklyn and Queens does not make him superhuman or somehow immune from the physical inclinations of some of his weak-willed brothers. That does not mean what he did was ok, but it may mean that we should stop being so offended when these things happen.

Hypocrisy and morality aside, this incident has implications for the law of technology, online privacy and ethics.

Consider some timely questions AFTER THE JUMP...

Has Rep. Weiner "conduct[ed] himself at all times in a manner that shall reflect creditably on the House"?

That quote is direct from the House of Representative's ethics rules and it appears to be one of the primary bases for an ethics investigation. It is a general rule that members of the Ethics Committee have an interest in applying narrowly for there-but-for-the-grace-of-God-go-I reasons. The rule also has great potential for misuse. A broad interpretation would allow the Ethics Committee to punish members for lifestyles that a majority finds inappropriate or unseemly. But, Rep. Weiner not only had an "inappropriate relationship" with "several" women online, he lied about it for days, twisting himself into increasingly awkward pretzels in the face of a media onslaught that could hardly be considered pro-Weiner. Both his conduct and his cover up reflect negatively on the House, an institution that should hold its members to higher standards of conduct that John Q. Sexaddict.

And, yet, Rep. Weiner seems far less culpable than, say, former Senator John Ensign (R-NV). The Senate ethics committee found that Ensign: (1) engaged in a conspiracy to violate, and aid and abet violations of the post employment contact ban, 18 U.S.C. § 207; (2) gave false or misleading statements to the Federal Election Commission regarding a $96,000 payment; (3) received unlawful and unreported campaign contributions and in violation of federal law and a Senate Rule prohibiting unofficial office accounts; (4) destroyed documents and may have obstructed justice; (5) committed gender discrimination; and (6) violated his own senate office policies.

Senator Ensign made all the wrong choices, all of which emanated from a physical affair with a woman. This leads me to my next ethics and law question:

Is Rep. Weiner's conduct less serious because it only happened online?

Assuming he was honest when he said that he sent images of himself to several women online, but never met them or engaged in any physical relationship with them, Rep. Weiner has a leg up on Sen. Ensign and Rep. Smith. Sen. Ensign had an affair, Rep. Lee met women over Craigslist; Rep. Weiner had virtual paramours. While there is much more to Sen. Ensign's story, let us bracket those untoward facts for the moment and ask ourselves if a "virtual affair" is somehow better than an actual one. Even my use of the term "actual" to refer to a physical, intimate relationship with someone other than your spouse connotes that an online flirtation is somehow fake. And, already, one liberal commentator has suggested that Rep. Weiner never actually "did" anything. "He just clicked send and stopped short of doing anything that would break his vows."

Clicking "send" on a text message, or "use" on Grindr, or "twit this" below this post is a volitional act. You did not have to send that sext, you did not have to send that face picture to that guy with great abs, you did not have to share this article to show your friends how wrong I am. By putting yourself out there, you are creating an internet presence, a "virtual self" that can be traced back to your physical self.

Consider a few legal implications of that virtual self. 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?

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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Comments

  1. I don't think anyone ever characterized Mark Foley as a moral crusader. Manic-depressive closet case and alcoholic with a predilection for teenage boys certainly, otherwise window dressing for wealthy Florida Republicans.

    Posted by: anon | Jun 8, 2011 2:00:53 PM


  2. what's the difference between what he did and using porn? How about if he had called a 900 sex line? What about if he had used chatroulette(sp)?

    I just think it's all a bit arbitrary, myself. Let them decide what's right for them and anyone else can go to hell. I also think he should sue for copyright infringement (neither photo is considered pornographic, therefor both qualify as copyrighted by the person who took it).

    Posted by: Randy | Jun 8, 2011 2:05:30 PM


  3. Ari -- Don't you mean "Chris Lee" (NY) and not "Chris Smith" (NJ). So far, I believe Smith has only been caught at living in VA, and not the central NJ district he represents.

    Posted by: Chris Gable | Jun 8, 2011 2:23:14 PM


  4. Being one of Rep. Weiner's avid constituents, I hate to take the onerous point-of-view of the Fox-type asshats, but you, sir, are splitting "liberal hairs" just a tad too much.

    None of this would matter AT ALL if Rep. Weiner HAD NOT LIED ABOUT THE WHOLE AFFAIR. He could have "manned up", told the truth from the first moment, got out in front of this stupid (and I mean STUPID) misstep in his political career and we all could have moved on.

    But, he didn't. Instead, he pulled a "Bill Clinton" on us and lied. And for several days, I was willing to believe it was more of Andrew Breitbart's repugnant "gotcha!" politics. (Oh, how I wish it were so!)

    The result? The GOP and its venomous minions can righteously scream "LIBERAL BIAS!" and, by god, on this issue, they've got a fair point! They're ratings surely will increase and their baleful, vile influence shall also. They can now huff and puff piously and gloatingly as a strong and eloquent (and, refreshingly caustic) progressive voice is going crashes to earth, disintegrating in the flames of his own hubris and stupidity.

    Even more shameful is that Andrew Breitbart was RIGHT. My stomach churned watching Rep. Weiner APOLOGIZE to that disgusting prick Breitbart, who is in serious need of a face-altering ass-whipping.

    At this crucial time in politics as the Democrats have punted and allowed the GOP to rise from the ashes yet once again, we NEEDED that progressive voice. Rep. Weiner should resign and get it the f*ck over with! Spare us, Rep. Weiner, the agony of watching another stupid, unthinking, selfish politician self-destruct before our eyes.

    Rep. Weiner, this one HURTS. Shame on you!

    And, I gotta ask this, Anthony: WHAT THE HELL WERE YOU THINKING?

    I hate to say it, but you, Mr. Weiner, are a DICK! Now, go! Be done with it!

    Posted by: jamal49 | Jun 8, 2011 2:23:43 PM


  5. @chris: yup, thanks for the edit. my bad!

    Posted by: Ari Ezra Waldman | Jun 8, 2011 2:25:58 PM


  6. "A married man should not send pictures of himself in various states of undress to young women."

    Um, why not?

    You'd think gay men would know more than anyone that not all relationships are the same and subject to the same rules. How do you know what's acceptable for Weiner and his wife?

    Posted by: nodnarb | Jun 8, 2011 2:30:12 PM


  7. "But, while Rep. Weiner may not be a hypocrite, he is still an asshat. A married man should not send pictures of himself in various states of undress to young women."

    Various states of undress! Clutch pearls! Momma's gonna have the vapors! I'm amazed at the alacrity with which some members of the gay community rush to smother themselves in Victorian morality in order to purchase acceptance.

    http://www.youtube.com/watch?v=S2u_W5DGbX4

    Posted by: Really? | Jun 8, 2011 2:42:14 PM


  8. I'm more upset over the lack of judgment on his part, especially with so many eyes on him. It's the tip of the iceberg factor. The tip doesn't sink the boat, it's all the crap underneath that destroys us all.

    If this was from his home, fine. But, from your office at work? On taxpayers dime? This was not so bad, it just LOOKS BAD. He knew better, and the straight up lies kind of sealed it. If he has to go, I want them to take everyone out across the board who has also been in violation!

    Posted by: Hollywood, CA | Jun 8, 2011 2:42:35 PM


  9. I know he lied and all but it's not like he was under oath (unlike Clinton). He got on tv and said things that were untrue. Politicians seem to do that all the time with relative impunity.
    Is it worse that he lied about something personal rather than his voting record or political stances?

    Posted by: Charles | Jun 8, 2011 2:52:36 PM


  10. its not that he was doing this and he was married. it his lying. he acted like a victim, that the public was stupid for asking questions (I think he called one journalist a "jackass"). this just shows you why journalists press these politicians so hard. another lying snake.

    Posted by: jj | Jun 8, 2011 2:56:14 PM


  11. Eh who cares, the naked cockshot is released... (NSFW)

    http://yfrog.com/h3b3sfej

    Posted by: Jersey | Jun 8, 2011 3:04:44 PM


  12. "Rep. Weiner never billed himself as a holier-than-thou moral crusader, so he is no Larry Craig, David Vitter, Chris Lee or Mark Foley -- men who spent their public careers discriminating against gays for so-called "moral" reasons but had no morals of their own."

    I resent the idea that just because a politician doesn't put a morals clause in their platform, that they should expect a free pass when it comes to personal conduct.

    While it is not some great offense to me personally, the country at large is offended. He knows this. SO, to indulge in this sort of thing means the good work that he has done may be jeopardized if he is caught. He's now a laughingstock and he's thrown away the good he has and could have done.

    Also, comparing what he's done to anyone else is really, really just plain stupid and irrelevant. Let's see, on a sliding scale of naughtiness, Kobe saying the "f" word being a 1 to John Edwards impregnating his mistress while his wife is dying from cancer a 10, this might be a 2. Really? Is this how we should judge this? No. He put himself, his position in a situation to be ridiculed. When you are elected to PUBLIC office, you are held to a higher standard. He knows this. And when he decided to distribute pictures of his junk to women on line, he knew there was a great risk to be exposed, so to speak. What he's saying through his actions is that the thrill of sending nude pics of himself is greater than the thrill of getting good work done.

    Furthermore, this makes an otherwise safe congressional seat vulnerable. Look what just happened in his own state. Luckily the dems won that. But what if a repub takes this seat? We can't afford that!

    AND, then there's the issue of casual lying. Sure, it's understandable in this case because it's so embarrassing, but do we want politicians who lie to us?

    AND, I resent the fact that republicans are the keepers of "family values." As someone who is pro gay marriage, pro helping get insurance for all, pro adoption for same sex couples, etc. that I am a much better example of family values than the hateful republicans.

    But this isn't about morality, really. Is what he did right? Wrong? Who cares. It is distracting from the good work that he should be doing as a public servant.

    Shame on him. He should step down and let someone whose priority is creating jobs, passing marriage equality, getting out of these stupid wars, fixing the tax code, etc...

    Posted by: dms | Jun 8, 2011 3:06:15 PM


  13. He lied, and ONLY came clean when more pictures started to be found. My money...he would have never fessed up without more dirt being found. That makes me really question his true character, and is not someone that should be making rules for the rest of us. I'm sorry to have someone that is an idealogical ally go, but to allow him to stay makes us no better.

    Posted by: ed | Jun 8, 2011 3:08:27 PM


  14. I have to laugh at all the ridiculous bead clutching by this supposed gay readership. He sent pictures! He lied about it! Oh my word, how awful! Much worse than all things Congress does to us every day I am sure. The embarrassment here is how ridiculously fascinated everyone seems to be about something so human as to be trivial. Grow up and get off your high horse.

    Posted by: Pete9 | Jun 8, 2011 3:13:01 PM


  15. "Is Rep. Weiner's conduct less serious because it only happened online?"

    Uh... it's less serious because, unlike Ensign, Weiner didn't commit multiple felonies.

    Seriously, what a stupid question from someone familiar with the law. Ensign is headed to prison, unless the GOP has some reason and enough clout to influence the prosecutors to cut him a deal.

    Posted by: BobN | Jun 8, 2011 3:13:35 PM


  16. @BobN: Thank you for your comment. But, with all due respect, I think you might have glossed over what I actually wrote. Right before the sentence you quote, I wrote: While there is much more to Sen. Ensigns story, let us bracket those
    untoward facts for the moment and ask ourselves if a virtual affair
    is somehow better than an actual one. I was asking a hypothetical question about ethics, fully aware that Senator Ensign broke the law in many other areas. I do not think the question is stupid, as you say. I think you missed the point.

    Posted by: Ari Ezra Waldman | Jun 8, 2011 3:19:07 PM


  17. To everyone who thinks that his lying about something that he was ambushed by that is absolutely nobody's business: grow up. Seriously. Anthony Weiner doesn't owe you the truth about his legal, private life. You don't own him. What are any of you thinking?

    "He should step down and let someone whose priority is creating jobs..."

    For how many days and on how many websites have you been pushing these exact same lies? The only thing keeping Anthony Weiner from concentrating on anything is his being attacked by a notorious right-wing extremist operative, coincidentally just as he's pressuring Clarence Thomas to come clean for once, among his many other accomplishments. Why are you obsessed with taking down Anthony Weiner? Are you an extremist right-wing operative? Don't even bother to deny it.

    As to whether Weiner should resign, the answer is yes -- exactly one second AFTER David Vitter resigns and not one second before.

    Honestly, some of you should try to be adults about this. It's legal, private adult activities and you only know about it because right-wing lunatics are intent on destroying Weiner. Stop aligning yourselves with them and get over it.

    Posted by: ohplease | Jun 8, 2011 3:27:53 PM


  18. To lie about something that is nobody's business, and for which telling the truth could be devastating -- like answering the question, "Are you gay?" for example -- is within our rights, regardless of what job we have.

    Few of us can guarantee we would do any better in Weiner or Clinton's shoes. Let's limit our condemnation to crimes of substance.

    Posted by: Jack | Jun 8, 2011 3:56:44 PM


  19. OH PLEASE

    You obviously don't know politics and human nature. These guys are ALL from the left. We are NOTORIOUS for kicking our own. The right haven't come out against Ensign and all those names Ari mentioned...but the left have. Aha!

    Of course it was as set up. Read my above post about Weiner being the ONLY Democrat to call out the GOP.

    And what about how Log Cabin and GOproud were vocally complicit in making sure the senator who vocally made sure DADT came to the podium, was kicked out? They proudly and loudly gave money to defeat him.

    It's nasty out there and I am just disappointed Weiner wasn't smart enough. How stupid because you know what? We all know his 'marriage' was a frigging arrangement to keep that Clinton link longer with the Democratic party. Please. She looks at him like he has 5 heads. This is politics and if ANYONE is stupid enough to believe that people marry for love and not status, power, money convenience etc then they are insane.

    But it doesn't remove the fact that he didnt think he'd get caught.

    It goes back to one of the biggest issues I have always had with the left wing-you're so full of integrity, pompousness, arrogance and virtue in your proclamations that you're busy not watching the right successfully twist, whip and screw you behind the shadows.

    We need to grow the eff up.

    Posted by: Rowan | Jun 8, 2011 3:59:06 PM


  20. Character matters in pubic officials. But more important to me is his lack of judgement. If a congressman doesn't understand the risk with uploading nude photos of himself online then he is just stupid and if he was in my district I wouldn't vote for him for dog catcher. I read many of the comments on here about Republican sex misdeeds and then there were many "holier than thou" on this site. Just as we demanded the Republicans in similar situations resign then so should Weiner.

    Posted by: major707 | Jun 8, 2011 4:02:54 PM


  21. A lot of commenters sound like they are offended as if they were married to him! His wife has to deal with it but I don't.

    I can easily look the other way and hope he continues in the House.

    Posted by: All Too Human | Jun 8, 2011 4:23:24 PM


  22. The real problem for me is that he went on several shows for days with the same made up story. He even lied to Rachel Maddow!

    [ http://www.mediaite.com/tv/rep-weiner-tells-maddow-twitter-photo-maybe-started-out-being-a-photo-of-mine/ ]

    You shouldn't lie to Rachel Maddow.

    Posted by: Philo | Jun 8, 2011 4:31:25 PM


  23. "A married man should not send pictures of himself in various states of undress to young women."

    Why not? Saying it don't make it so. What's wrong with it? I defy you to show me a single example from all of human history where anyone was harmed by the sight of genitals without choosing to be or having been trained to be harmed by such imagery.

    And what does the age of the adult women have to do with anything, you closet agist?

    As for marriage, judging the terms of relationships in which one isn't involved says nothing about the relationships, but it is a sure indicator of a crippled imagination, trivial intellect, and weak character.

    Posted by: Bryan | Jun 8, 2011 4:45:42 PM


  24. @ MAJOR707 "Character matters in pubic officials."

    True. My only regret is that Wiener lacked the character to say "My sexuality has nothing to do with my job and is therefore none of your damned business. There's nothing wrong with any part of my body, I'll show it to other consenting adults whenever I damned well please, and, harming no one, will get off however I like. Take your gossip addiction and hysterical shame to a therapist if you like, but whatever you do get the hell out of my way - I have work to do."

    Posted by: Bryan | Jun 8, 2011 4:48:52 PM


  25. I could look past any of it except the lying afterwards.

    Posted by: Roger | Jun 8, 2011 4:58:02 PM


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