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Wednesday, January 22, 2014

Criminalizing Revenge Porn

The title of this post comes from this fascinating paper by Professors Danielle Citron and Mary Anne Franks, the abstract of which states:

The non-consensual publication of non-newsworthy sexually graphic images deserves criminal punishment. It produces grave emotional and dignitary harms, exacts steep financial costs, and increases the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. Criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Profs. Citron and Franks explain that history affirms a willingness to occasionally criminalize invasions of privacy, writing:

Criminal law should have a role in deterring and punishing egregious privacy invasions like revenge porn. Criminalizing privacy invasions is not new. In their seminal article The Right to Privacy, Samuel Warren and Louis Brandeis argued that “[i]t would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law.”Since 1890, state and federal lawmakers have criminalized privacy invasions, such as the non-consensual recording of individuals in contexts where they enjoy a reasonable expectation of privacy. 

Indeed, they observe that courts have rejected claims that the First Amendment protects "certain non-consensual disclosures of private communications, such as sex tapes, on the grounds that such communications are not matters of legitimate public concern." Yet, few states have been willing to pursue the criminalization of revenge porn--i.e., the non-consensual release of private sexual communication. So far, only New Jersey and California have passed such laws. Profs. Citron and Franks argue that the ambivalence persists because (1) people don't appreciate its real harms, and (2) they misconceive the scope of the victim's consent. They claim:

One reason for society’s acceptance of non-consensual pornography is the failure to recognize the grave individual and societal harms it inflicts. Until recently, non-consensual pornography seems to have been viewed as a tolerable embarrassment. Brave victims are now speaking out to describe the physical attacks, stalking, financial costs, and psychic damage caused by this conduct. 

 

Another explanation for our inattention is the faulty assumption that a victim’s consensual sharing of a sexually explicit photograph with a trusted confidante equals a wide-ranging permission to share those images with the public. Said another way, a victim’s consent in one context is taken as consent in all contexts. Consent, however, is context-specific. Individuals who agree to being photographed or filmed for one purpose do not necessarily agree to have their images used for another. 

 

The contextual nature of consent is a staple of information privacy law. The Fair Information Practice Principles, reflected in privacy regulation and best practices, make clear that permitting an entity to use information in one context does not confer consent to use it.

Profs. Citron and Franks suggest that federal law should criminalize revenge porn--indeed, Prof. Franks is even working on federal legislation that would make internet companies liable for revenge porn posted by users. They also conclude that "[s]tates should craft narrow statutes that prohibit the publication of non-consensual pornography."

CRL&P related posts:

http://lawprofessors.typepad.com/civil_rights/2014/01/criminalizing-revenge-porn.html

First Amendment, Freedom of Speech | Permalink

Comments

If we are talking about one on one, male on top, traditional sex act then who can say that the depiction of same is criminal. How did we get here Ms Franks? Now if it is pony on human then we are beyond the Pale. The Pale is The Paletinate. East of Corfu the Ten Commandments Don't Apply and all that. Federal laws needed? I disagree. And no punishment or criminal aspect should be assessed on some schmuck who has porn on a computer whether he is aware of it or not. Don't buy a used computer either. It could be full of kid porn and donkey porn.

Posted by: Liberty1st | Jan 23, 2014 11:49:40 AM

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