Mr. Anthony Weiner of Brooklyn and Twitter


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.