Revenge of the Porn: Another Crime in the Making

When lawprof Danielle Citron’s op-ed appeared on CNN, I felt the shiver.  Since her Cyber Civil Rights days, when she proposed criminalizing speech that hurt women’s feelings, it was clear that when feelings clashed with reason, the latter didn’t stand a chance.  This time, it was revenge porn, websites that posted nude photos given to former suitors who used them to harm, embarrass and humiliate the person.

Criminal law should have a role in deterring and punishing revenge porn. It’s not new that certain types of privacy invasions are crimes. Many states prohibit the nonconsensual taking of sexually explicit images — the disclosure of someone’s naked images should be criminalized as well.

Her rationale was much like her argument against hurtful speech. It caused people grave harm. And it’s true. It does.

The pat response is that anyone who doesn’t want their naked pictures online shouldn’t take naked pictures. This is a facile argument, both because people do foolish things as that’s our nature, and because there is no necessary correlation between giving someone you love, or think you love, at least for the moment, a nude picture and expecting it to appear on the internet a few years later.  But it can get far worse, with name, address and even telephone number attached. This is bad stuff.

There are two lurking questions in the background to all this, which is why people go to revenge porn websites to ogle at these naked images, and why people post this online to cause such harm to others. It can all be attributed to human nature, but then, so can murder, and yet it’s not acceptable conduct.

The New York Times took up the issue, with a lengthy story offering the misery of victims of revenge porn.  And indeed, the misery is quite real, just as the misery of the online “bullied” was quite real.  Three reactions to the problem from the blawgosphere’s best minds  were offered in the Times to the prospect of criminalizing revenge porn:

Not everyone agrees that criminalizing revenge porn is the best strategy. Marc Randazza, a Nevada lawyer who represents plaintiffs against yougotposted, says that he thinks civil remedies are preferable.

“As horrible as I think people are who do this,” he said, “do we really need another law to put more people in jail in the United States?”

And some experts, like Eric Goldman, a law professor at Santa Clara University, have said that any state law would be vulnerable to First Amendment challenges.

But Eugene Volokh, a First Amendment scholar at the University of California, Los Angeles, said he saw no constitutional obstacle to a law written narrowly to address naked or sexual images distributed without permission.

“I think that’s a kind of invasion of privacy that the courts would say can be prohibited,” he said.

But another lawprof, Mary Anne Franks of the University of Miami, has taken things a big step farther, having drafted a model law to criminalize revenge porn.  She begins arguing her case for the need to criminalize revenge porn, which explains the harm:

What is the harm?

Non-consensual pornography transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or malicious hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. Ina matter of days, that image can become the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide. Non-consensual pornography can destroy victims’ intimate relationships as well as their educational and employment opportunities. While non-consensual pornography can affect both male and female individuals, empirical evidence indicates that the majority of victims are women and girls, and that women and girls face more serious consequences as a result of their victimization. By violating legal and social commitments to gender equality, non-consensual pornography is similar to sexual harassment, rape, and domestic violence.

While the tie-in to “sexual harassment, rape and domestic violence,”  is a mainstay of gender politics pulled out whenever women are deemed the primary victims, don’t let the incipient hype blur what remains a very real, very horrible problem. Franks, like Citron, just can’t control her feminist urges.

Recognizing that such a law implicates constitutional rights, Franks explains why her model doesn’t offend First Amendment principles.

Does criminalizing revenge porn violate the First Amendment?

There is no constitutionally protected right to consume or distribute sexually graphic images of private individuals without their consent any more than there is a constitutionally protected right to distribute obscenity or to engage in threats, harassment, or defamation. A carefully crafted statute with exceptions for lawful activity (e.g. law enforcement or commercial practices) does not offend First Amendment principles.

Ultimately, Franks presents her model law:

Whoever discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

Should it be called the Carlos Danger, I mean, Anthony Weiner Law? Therein lies the problem.  While Eugene may say a law to prohibit the evil revenge porn could be drafted, this surely isn’t it. This law would create a morass of “he said, she said” problems at best, and criminalize conduct such as the revelation of misconduct by mayoral wannabes.

My personal disgust at the existence of revenge porn websites, and some hard consequences that follow the victims that they neither deserve, by dint of their having been complicit in the taking of naked photos, nor should suffer, make the need to prevent the harm real.

But the solution to very real problems can work its own wrongs, its own harms, as reflected in this model law that fails miserably to limit its prohibitions to only the culpable.  I hate revenge porn sites. I hate this law. Criminalizing conduct that causes a harm, but brings within its sweep the innocent as well, isn’t a solution.

And yet the movement to make a new crime is afoot and coming to a state near you.

7 comments on “Revenge of the Porn: Another Crime in the Making

  1. Marc R

    How are the innocent implicated by a criminal law against revenge porn?

    I think Randazza’s solution makes the most sense. Let the victim sue civilly under whatever available remedies exist whether it be false light, invasion of privacy, nied, or iied.

    1. SHG Post author

      I think Randazza’s solution is the right one as well, providing both injunctive relief and damages. The counter argument, that civil action is expensive and takes too long, suggests that there needs to be a more expeditious means of dealing with it.

      As for innocent, the example used in the post was Anthony Weiner. Should the woman to whom he sent his junk pic be prosecuted for revealing it? Remember, while the pitch is based on revenge porn sites, it covers all disclosure. And, even though it’s not mentioned in the arguments, there are plenty of people, including women, who approve of the posting of their pictures online, but who could later claim they didn’t approve to exact their own revenge on their former boyfriends who did it at their behest. The permutations are endless with such a vague law.

  2. REvers

    Want to bet if those same pictures showed evidence of a crime (bestiality, say) the courts would find there is no reasonable expectation of privacy in them?

  3. Ultraviolet admin

    The most interesting bits are how this is a rather do-nothing law unless either A. Its federal, or B. Section 230 of the CDA gets repealed/amended. Professor Goldman is quoted in the article, but he’s written quite a bit on how state attorney generals really want the CDA 230 to have state law immunity dropped. This is one of the big excuses they give along side sex trafficking.

    230, for those who are unaware, is the safe harbor for online forums that makes the host immune for conduct for the acts of the posters, and has various exceptions, including federal laws (so both IP laws and federal child porn are notable laws online). AG’s and DA’s don’t like this for many reasons that are well intentioned but fail to recognize the harm to the internet nor potential for abuse. Like vague laws on revenge porn.

    1. SHG Post author

      The rationale behind eliminating the Section 230 safe harbor is clear, sensible and horrible: it’s rarely possible or effective to go after the person who posted the target content, but easy to go after and enforce measures against the publisher. It’s the free speech version of deep pockets, not necessarily at fault but easier to confront and with more to lose.

  4. Mark Draughn

    I see why Randazza prefers a civil remedy. Franks says this law is motivated by a desire to prevent the harm caused to the victim when sexually intimate images are published on revenge porn sites, yet her proposed law has almost none of the implied limitations, many of which would probably be present in a civil action. There’s no requirement that the victim be identifiable, there’s no requirement that the victim suffer harm, and there’s no requirement that the victim consent to the legal proceedings. How many ways could that turn out to have unintended consequences?

    1. SHG Post author

      Randazza has a keen appreciation of any restriction on free speech, realizing that it’s nearly impossible to tailor restrictions so well that it doesn’t bring unintended speech within its ambit. But at least a civil cause of action limits the chilling effect on speech and the more severe consequences of making speech a crime. Randazza also appreciates that all criminal statutes, which of late tend to be in reaction to a particular, often peculiar, evil can be used to prosecute any conduct that arguably falls within its ambit, whether it was the particular evil intended to be stopped or not. If there is a way to tailor a crime to only the evil at stake here, I’ve yet to see it. Or anything close to it.

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