Revenge Porn: A New First Amendment Quandary

By: Drusti Gandhi

Nonconsensual pornography or “revenge porn” as it is widely known is defined as the distribution of sexual images or videos of individuals without the consent of the person(s) depicted. Revenge porn in the mainstream media has generally characterized by ex-boyfriends posting sexually explicit images of their ex-girlfriends on the internet along with the victim’s private information such as names, phone numbers, addresses, and workplaces. Media and public attention of this crime has led to the creation of advocacy groups such as Cyber Civil Rights Initiative (CCRI) and Without My Consent, which provide legal advice and support to victims, as well as information to the general public. Subsequently, the efforts by the organization and various lawsuits against the perpetrators have led to various social networking websites banning sexually explicit images posts without the individual’s permission.

Prior to the creation of state criminal statutes directly addressing revenge porn, victims sought remedies through tort, privacy, and copyright suits. In 2004, New Jersey passed the first revenge porn law, criminalizing the capture and distribution of sexually explicit images by persons who know the perpetrator “is not licensed or privileged to do so”. Following the New Jersey enactment, 35 states plus District of Columbia have created laws criminalizing revenge porn. However, some of these laws have been criticized for being overbroad and invading defendant’s right to free speech.

Revenge porn laws are essentially content-based speech restrictions, so the state has the burden of meeting strict scrutiny.  The Supreme Court generally invalidates any laws restricting speech on the basis of content unless the state can demonstrate a compelling state interest that is narrowly tailored to achieve that interest. Courts have made exceptions to free speech, such as defamation, obscenity, and threats.  However, revenge porn is not one of those exceptions and thus the law needs to meet strict scrutiny to be constitutional.

On September 23, 2014, in Antigone Books v. Brnovich, The American Civil Liberties Union (ACLU) along with a broad coalition of bookstores, newspapers, photographers, publishers, and librarians brought a lawsuit challenging the constitutionality of Arizona’s “revenge porn” law, which makes it a crime to “intentionally disclose, display, distribute, publish, advertise, or offer” a sexually explicit image of an individual without her or his consent. They argued that due to this law: a bookseller who sells a history book containing an iconic image of “Napalm Girl,” a library lending a photo book about breastfeeding to a new mother, newspaper publishing images of abuse at Abu Ghraib prison, or a newsweekly running a story about local art show could all be prosecuted and convicted of a felony. They charged that the law was overbroad and vague in that it criminalizes fully protected speech because the law did not require that an individual has an intent to harm the person whose images are being distributed. After a joint settlement, a federal court ordered Arizona state prosecutors to halt enforcement of the law.

Similarly, when California drafted its own bill, the ACLU objected on the grounds that the bill was overbroad and restricted protected speech. The final version was eventually approved with no objections. Following that, several states’ revenge porn laws have been challenged and there have been mixed outcomes. Previously, courts have held that laws banning videos showing graphic violence against animals or hateful protests outside military funerals were unconstitutional. Taking that a little further, courts are more likely to find revenge porn laws unconstitutional if they are over broad and are found to invade protected speech.  Ultimately, it has been clear that these laws need to be narrowly tailored to protect victim’s rights without invading defendant’s freedom of speech.

Advocates working for Cyber Civil Rights Initiative have mentioned that in order for the revenge porn laws to pass the challenge, they must carve out an exception reflecting the public interest. For example: the Minnesota Bill is said to be well-drafted because it explicitly protects images and videos that were made or obtained in a commercial setting. Therefore, a newspaper article is justified in publishing Anthony Weiner’s explicitly sexual photography because it is demonstrating a politician’s behavior. However, an individual might not have a strong case for posting sexual images of an ex girlfriend or boyfriend. Constitutional scholar, Erwin Chemerinsky, has also declared a bill as Minnesota to be sound because, “[The] First Amendment does not protect a right to invade a person’s privacy by publicizing without consent, nude photographs or video of sexual activity.”

Cyber Civil Rights Initiative has worked with Congresswoman Jackie Speier, who introduced Intimate Privacy Protection Act (IPPA), which if passed, would criminalize nonconsensual pornography. Speech advocates worry about IPPA’s constitutionality, but CCRI applauded the bill for being narrow enough to protect both the victims’ and individual’s right to free speech. CCRI provides both a model for federal and state law to criminalize nonconsensual pornography. Both laws carve out exceptions for commercial setting and public interest. The real challenge would be to see if those models would withstand a constitutional challenge.

Note: The views expressed above are solely those of the author(s) and do not reflect any official position taken by the Information Security and Privacy Law Student Group, the Washington College of Law, or American University at large

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