As  Ken White and Adam Steinbaugh have chronicled, websites based on the business model of posting naked, nonconsensual photos of people, particularly with sufficient personal identifying information so that sick people can find them, is one of the most disgusting and offensive things the internet has borne.  And it seems there is no shortage of sick people on the internet.

These sites, delightfully called “revenge porn,” attract a crowd for whom few of us have any sympathy. Whether owner, poster or viewer, there very existence is a commentary on humanity. And so a law to prohibit their existence, the harm they do to the people whose image is posted for all the world to see for a few dollars for the website owner, who can charge them to remove the taint, the momentary hatred of a spurned lover, the diseased interest of some loser whose sex life exists only on a computer screen, probably wouldn’t upset too many people.

And yet, the effort in Florida to create a felony raises issues.   Eugene Volokh raises the question.

A Florida bill would ban “knowingly transmit[ting] or post[ing]” to any web site, a “photograph or video that depicts nudity of another person” coupled with “personal identification information” of that other person, “for the purpose of harassing the depicted person or causing others to harass the depicted person.” “Harass” is defined as “to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose.”

In general, Eugene is the first person to call vague and overbroad when laws seek to criminalize expression under the First Amendment.  He has eviscerated law after law seeking to criminalize the vague notion of bullying, and particularly cyberbullying.  But revenge porn holds a special place of revulsion.

But 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.

It’s true that we have a historical tradition of not valuing nudity as worthy of protection, a remnant of our Puritan ancestors getting first crack at using the law to express their vision of a just society that conforms to their moral sensibilities.  Then again, we’ve spent the last five decades trying to move beyond a boatload of prisses who thought black was the new black.

Who cares, you think to yourself?  This is such horrible trash that we can turn a blind eye, just this once.  In the comments to Eugene’s post, examples are offered of things that would violate the law yet not evoke such revulsion.  For example, what about the picture of a naked rapist seeking to identify her? 

But the law requires “intent to harass,” which it defines to mean “to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose.”  Certainly that saves the person who posts an image of a naked rapist.

And yet, two vague conditions in a definition offer much room for mischief.  Proof of intent is shown by the conduct, that one intends the natural consequences of one’s actions.  If it causes “substantial emotional distress,” it was intended to do so.  The same flaws that pervade anti-bullying laws exist here, that the wrong ends up being ultimately defined by the feelings of the victim rather than an objective measure. 

While there are, surprisingly, a great many people who apparently want and enjoy having an image of them naked on the internet, there are many who do not.  That they took or suffered such a photo to be taken, for use and enjoyment in one context, may be foolish, but we are human and make foolish choices with unfortunate regularity. 

But that doesn’t mean they won’t hate it when their photos appear in a different context, like a revenge porn site.  And that doesn’t mean they aren’t allowed to claim emotional distress when it happens.  But does that give rise to a crime by the person who posts an image of a cheating spouse, lying girlfriend who handed them the weapon of revenge?

The second prong of the definition, that it “serves no legitimate purpose,” raises more difficult questions. Is making money a legitimate purpose? Is it legitimate to let others know that they should stay away from a person who stole from them a legitimate purpose?  When a crime is defined by the sensibilities of others, how does the person who engages in conduct differentiate what she believes to be legitimate from what a judge or jury thinks is good enough?

There may not be much question that the general social utility of putting nonconsensual naked images with personal information on the internet is, for the most part, pretty slim.  And there is no question that it causes harm, awful harm, to many, ranging from humiliation to threats of attack by one of those sick mouth-breathers who might leave his basement to pay a visit to his internet obsession.  There is much to hate about revenge porn sites.

Yet we step onto yet another slippery slope when a new category of speech we despise is removed from First Amendment protection.  And unlike Eugene, I am not nearly as sanguine that this new crime will be used with sufficient discretion by prosecutors to only target the evil among us while the free speech of the rest of us will be honored.  “Trust us” has never been a sufficient reason to allow constitutional rights to be left to the whim of prosecutors. Not even when I despise the conduct at issue.

Update:  Inexcusably, I neglected to note that the Texas Tornado, Mark Bennett, previously addressed why revenge porn, unseemly though it may be, is constitutionally protected for lack of being subject to any exception to the First Amendment.