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Monday, October 14, 2013

Bloomberg.com editorial weighs in on revenge porn debate

Yesterday, this Bloomberg.com editorial called on states to enact legislation to criminalize revenge porn--the unauthorized retaliatory release of nude images and/or videos of an ex. As noted by the editorial, the First Amendment protects hurtful and offensive speech. Nevertheless, citing this commentary by Professor Eugene Volokh at The Volokh Conspiracy, the editorial nonetheless suggests that revenge porn is of such low value as speech that carefully crafted legislation likely will not violate First Amendment rights.

According to Professor Volokh:

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

The Bloomberg. com editorial begins:

Once upon a time, vicious people did their hurtful work through whispers, notes and direct insults. Nowadays, they have a more insidious and repulsive weapon: revenge porn.

What is revenge porn, you ask? Consider this update to the age-old mating ritual: Boy meets girl. Boy and girl start dating. Boy and girl have fun together. Girl sends boy naked photo of herself (aka nude “selfie”). Eventually, however, girl dumps boy. In retaliation, boy posts photo of naked girl online, sometimes including her name, address and phone number.

What recourse does girl -- and it is almost always a woman -- now have? Unless she is a minor, this behavior is a clear violation of criminal statutes in only one U.S. state: California, where a law went into effect earlier this month. Even there, however, the law is unsatisfactory. Strong laws against revenge porn need to be broad enough to protect victims but narrow enough to protect free speech.

It could be argued that the First Amendment protects the right to post legal material acquired lawfully. The Supreme Court has ruled that even hurtful speech can be protected speech, most recently two years ago in a case affirming the right of a church group to picket the funeral of an Iraq War veteran to protest gay-friendly policies, including in the military.

But that speech was protected because it concerned matters of public debate. Salacious images of individuals generally don’t fall in that category, and laws can be constructed to cover the rare circumstances in which they do. (The career of a recent candidate for mayor of New York City comes to mind.)

In the absence of criminal statutes, a revenge-porn victim could sue her tormentor for invasion of privacy or infliction of emotional distress. Relatively few individuals, however, have the means to pursue a civil case, and unless the defendant is wealthy, there’s little to be gained. Without the resources of law enforcement, it can be impossible even to prove the identity of the culprit. A lawsuit would also attract additional attention to the humiliating postings.

http://lawprofessors.typepad.com/civil_rights/2013/10/bloombergcom-editorial-weighs-in-on-revenge-porn-debate.html

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Comments

There will an age effect here. Young people will find such recordings less objectionable. Only old people like Eugene Volokh will agree these are embarrassing. Prof. Volokh is an atavistic transmitter of precedent written by geriatric lawyers on the bench. He has no independent discernment of utility or logic.

There is also a gender discrimination angle. Post a sex recording of a male, and bragging ensues, not emotional distress. The prohibition is therefore targeting male defendants.
New laws are not needed. Surreptitious recordings in situations where privacy is expected, such as bathrooms, changing rooms, and certainly the bedroom during sex, are already prohibited by laws against unauthorized surveillance. If the recording appears to have been made openly, then the victim has consented in law to the crime.

These laws will be used by all targets of surreptitious recordings, crooks being recorded by journalists, politicians accepting bribes, even predators enticed to the house of a teen girl for sex, by a fat, old FBI agent posing as a girl on line.

Posted by: Supremacy Claus | Oct 14, 2013 6:26:53 PM

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