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Thursday, March 6, 2014

"Race To Stop 'Revenge Porn' Raises Free Speech Worries"

The title of this post comes from this NPR article describing the concerns of some free speech advocates that states' efforts to criminalize revenge porn threaten First Amendment rights. The ACLU, for example, has expressed concerns that such laws "tread[] on very thin ice constitutionally." As CRL&P has observed, only two states -- California and New Jersey -- have enacted laws criminalizing the non-consensual, retaliatory posting of nude and pornographic images, but states are increasingly undertaking efforts to criminalize such conduct. The article states: 

Many states, according to NCSL data, already have laws on the books that prohibit "taking nude or sexually explicit photographs of a person without a person's knowledge or consent." The issue of malicious online posting or distribution of such photos or videos, however, including "selfies" and other material that may have been initially shared with full consent, had not been widely addressed.

 

The panoply of revenge porn bills that have been introduced range from those that would make such posts a misdemeanor that carries a fine, to those that would make it a felony. Some legislation also targets with civil penalties websites that post the images, including those that attempt to extract payment from the subjects to take down the offending photos or videos.

Despite concern over such laws, constitutional scholars have said that laws criminalizing revenge porn could be crafted so as to conform with the First Amendment. NPR asked the ACLU's Lee Rowland about this, who offered the following:

ImagesLegislation that can withstand court scrutiny, Rowland says, should include four main elements: It must designate that the perpetrator had malicious intent, that his or her action caused actual harm, that he or she acted knowingly without consent, and that the victim had an expectation of privacy.

 

"Without those safeguards," she said, "these laws face an uphill battle in the courts. Not only are they unconstitutional, they are unwise — there simply isn't another example I'm aware of where there are criminal penalties for sharing otherwise lawful speech."

 

Rowland gives this example: If an Arizona bill currently being considered were to pass, a person who receives an unsolicited text of a nude selfie and shows it to a friend could be charged with a crime.

 

But the California bill, signed into law last October and on which the ACLU took a neutral position, has been criticized by revenge porn activists as not going far enough. Perpetrators can be charged with disorderly conduct for posting or distributing intimate photos, videos and recording to intentionally inflict emotional harm on the victim. The law, however, doesn't apply to photos the victim has taken him- or herself and shared — so-called sexual "self-portraits" — and does not address revenge porn websites.

 

The revenge porn problem can be tackled, but carefully, constitutional experts advise, with full attention given to the two constitutional values at play: privacy and free speech.

 

Easing the sting of some of the repercussions of the Internet, Rowland says, is desirable but a very tricky thing to do.

CRL&P related posts:

http://lawprofessors.typepad.com/civil_rights/2014/03/race-to-stop-revenge-porn-raises-free-speech-worries.html

First Amendment, Revenge Porn | Permalink

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