Has Eugene Volokh Punted On Revenge Porn?

For years, UCLA Lawprof Eugene Volokh has provided interesting and thoughtful commentary on First Amendment law, establishing himself as one of the foremost scholars of Free Speech in the country. Perhaps more importantly, Eugene has become something of a free speech guru at his long-standing blawg, Volokh Conspiracy, and some people, lawyers and lay alike, tend to take Eugene’s word as First Amendment gospel. It’s not that they necessarily find his arguments persuasive, but that if Eugene says so, then it must be.

Mark Bennett isn’t necessarily buying.

I’ve been writing for eight years now about how revenge porn statutes are unconstitutional because the Supreme Court has defined “unprotected speech” as “speech within narrow categories of historically unprotected speech,” and nothing about revenge porn puts it into any heretofore recognized category of unprotected speech.1

Not only has Mark been writing about it, but he’s been litigating about it.

My view on this has been consistent, and contrary opinions from the Vermont Supreme Court, the Minnesota Supreme Court, and the Illinois Supreme Court have done nothing to shake my opinion that to criminalize revenge porn qua revenge porn will require a sea change in Supreme Court free-speech law.

Is there any question but that the Supreme Court has held firm that outside the few recognized categories of unprotected speech, speech is protected? Would Eugene dispute this premise, one that he’s espoused and relied on over and over throughout the years?

Nor has my view been altered by UCLA lawprof Eugene Volokh repeatedly expressing his opinion 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.”

There are a lot of modifiers there—suitably clearnarrowgood reason to think… likely be upheld by the courts, which is not the same as “is constitutional.” But the other day Volokh made a stronger statement of his opinion in that matter:

I think that, as a First Amendment matter, properly crafted nonconsensual porn statutes are constitutional, and this statute might indeed be narrow enough. (I prefer the term “nonconsensual porn” to “revenge porn,” because I don’t think the law should be limited to speech motivated by a desire for revenge, and indeed the California law has no such limitation.)

This is a fairly clear and straightforward assertion by Eugene. What constitutes “properly crafted” remains a perpetual mystery, as Eugene has studiously avoided explaining what that means, but he comes out and says it: these laws “are constitutional.” And if Eugene says so, is that not good enough?

Okay, Eugene. But what about the Supreme Court’s categorical approach?

I recognize that United States v. Stevens (2010) held that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” and that First Amendment exceptions be limited to “historic and traditional categories long familiar to the bar,” such as obscenity, defamation, fraud, incitement, and the like, which are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire (1942).

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

As Mark points out, and Eugene tacitly concedes, revenge porn statutes would clearly fail under the Supreme Court’s Miller test for obscenity. But Eugene contends that it could still fall within the obscenity exception because “the fact remains that historically such depictions would not have been seen as constitutionally protected.”*

That’s not Volokh’s argument. Volokh’s argument as I understand it is that even PG-13 nonconsensual pornography is unprotected speech because mere nudity would historically have been unprotected speech.

Is this an argument that the Supreme Court was wrong in Miller and that all nudity is obscene? Or, as Mark notes, if the content of nonconsensual porn falls within the obscenity exception, then it’s obscene due to the content of the image, not the manner in which it’s disseminated. Is Eugene arguing that every image of a breast or buttocks is obscene?

The thing about these categories of unprotected speech is that everything in them is unprotected. There is not some obscenity that may be distributed, and some obscenity that may not be; nor is there some protected and some unprotected defamation. If speech falls into a category of unprotected speech, then it is unprotected and the government can punish it. So before approving a new category of unprotected speech, we had better see if there is a baby in the bathwater.

This isn’t to seriously argue that naked images are obscene, but that Eugene’s attempt to use obscenity as the categorical hook for why revenge porn can be criminalized as unprotected speech is nonsensical. Perhaps Eugene merely wants to be on the “right side” of the legal academy’s feelings about revenge porn, and is doing his darndest to wiggle his way through this morass so as to not offend Mary Anne Franks while providing no clear and cogent rationale for his squishy assertion that “properly crafted nonconsensual porn statutes are constitutional.”

But given Eugene’s reputation as a scholar and the influence his pontifications carry among legislators and groundlings alike, it’s time that Eugene either commit to a rationale based on actual law and reason that supports his conclusion or concede that he, like so many others in the legal academy, is just blowing smoke to avoid being called mean names by the woke prawfs.

*Mark is kinder than I would be to Eugene’s contention that “the fact is…” as nudity has been an accepted mainstay of art for millennia. Is Eugene arguing that we were a Puritan nation at the founding, and our founding fathers would not have understood the First Amendment to protect any nudity? If so, then that argument would require proof beyond merely proclaiming it to a “fact.”

27 thoughts on “Has Eugene Volokh Punted On Revenge Porn?

  1. Skink

    Dear Eugene:
    How about you draft a Constitution-passing statute for us to ponder? Take your time; I have a chore to do. I’m gonna give a chicken to one of the giant Swamp lizards. I’m pretty sure it’ll cook me some lunch.

  2. Hunting Guy

    IANAL, so WTH is “ PG-13 nonconsensual pornography“?

    Could someone smarter than me explain it? Is this some legal term of art?

    1. SHG Post author

      Would a bit of side-boob be permissible in a PG-13 movie? Yet, it would be criminal under revenge porn statutes.

  3. Jake

    This is one of the issues that has confused me for a long time. Strip all the emotional rhetoric out and do we not have a question of property rights? Actors and performers have long held a right to control the publication and distribution of their likeness through various contractual tools. If you take a private person’s picture in a private location and then use it in a way they did not agree to, why is it any different?

    A picture is content and content, when published, whether in a book or on pornhub, is monetized.

    1. SHG Post author

      Pretty much everything about law has confused you for a very long time. But there is a property right issue here. If someone takes a nude pic of themselves and gives it to someone else, it is then a gift given without condition, which means it becomes the exclusive property of the recipient of the gift, just like any other gift. If the recipient then chooses to post it online, the person in the image has no right in it whatsoever, having given it away as a gift. That, Jake, is how property rights work.

      1. Jake

        As soon as I hit submit I realized I had set myself up for the spike with that first sentence. But thanks for clarifying.

      2. Kevin P. Neal

        Wait, but what about copyright? If I take a nude pic of myself, don’t I own the copyright to that nude pic? if I then give you a copy, I still hold the copyright, no? Would further redistribution of said nude pic count as “fair use”?

        Would there be a difference, legally, between a digital copy of the nude pic and a printed copy?

        I will admit that it would be weird to have a “criminal copyright infringement of nudity” statute, though.

        1. SHG Post author

          If you give someone the pic without condition, such as retaining the copyright, do you you have an enforceable copyright claim? If so, it’s for damages, not a crime. Whether there could be a constitutional “criminal copyright infringement of nudity” statute is a different question. Maybe that would be a better way to address this issue rather than these revenge porn statutes, but so far no one’s suggested that route.

  4. Jay

    Nudity isn’t speech you dolt. To become speech it has to communicate something. Did you actually go to law school? This is the stupidest thing you’ve written in a long time. You and Bennett have become so myopic you’ll have quite the awakening when scotus shits on your inability to think.

    1. Corey

      Nudity may not be speech, but photography sure is, and I didn’t need to go to law school to know that one…

    2. Rengit

      Is this what they’re teaching in law school now? Argument by insult, and swearing for emphasis? Rather than pounding the table as a last resort when neither the facts nor the law are on your side, just start pounding the table straight off the bat?

    3. SHG Post author

      Everybody chill out. Jay knows his comment is idiotic and he’s just trolling me and Bennett. It’s just a thing the kids do for lulz.

      1. Corey

        So ixnay on the argument about situations in which nudity is absolutely an attempt at communication? Aye aye Admiral.

    4. Dan

      Nudity isn’t speech? So “Naked Athena” wasn’t trying to communicate anything by her nudity?

  5. Miles

    Are we sure Eugene isn’t commenting under the ‘nym Jay?

    Seriously, you and Bennett have exposed a gaping hole in Volokh’s position, a fashionable conclusory assertion without serious supporting argument. In light of how much influence EV possesses, this is deeply disturbing, and gives me serious pause as to his scholarly cred. I hope EV addresses this, and I want to believe that he has enough integrity to either lay out a solid argument or concede that he has no support for his conclusion.

    1. SHG Post author

      I like and respect Eugene. He’s a strong scholar and his work is often illuminating. It’s not that his opinion is above dispute, but he usually knows what he’s talking about. On this issue, however, he has yet to show his work while expressing a view for which I see no rationale. I hope he addresses this issue without the squishy, conclusory verbiage. If he’s got something, then I’ll learn from him. If not, perhaps he would do well to reconsider his support for unconstitutional laws.

  6. KP

    Isn’t this all about damage to the victim, one way or another, and you can already go to Court for that? A new law is not needed if you already have that covered by defamation, and that wouldn’t cover art as the model has given consent.

    Giving a nude picture to a boyfriend then disagreeing with his use of it is the same as loaning him your car and having him run you over with it. If one is criminal damage to your person then the other is also, or do you only count physical damage.

    Wanting new laws to cover every situation is just lawyers trying to keep themselves employed.

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