Race To Stop ‘Revenge Porn’ Raises Free Speech Worries
Law Offices of Tim Powers
940.580.2899 – Denton, Texas
It’s called “revenge porn” — the posting of nude
or sexually explicit photos or videos online to degrade or harass someone,
usually a former spouse or lover.
And states from Arizona to New York are racing to make it a crime.
It’s a development that has heartened privacy advocates but alarmed
free speech watchdogs who see constitutional peril in many bills being
“This is a delicate issue,” says Lee Rowland of the American
Civil Liberties Union, who says the legislation is “spreading like
wildfire.” “The ACLU is concerned both with the protection
of privacy and free speech rights.”
“But the reality is that revenge porn laws tend to criminalize the
sharing of nude images that people lawfully own,” says Rowland,
a lawyer with the ACLU’s Speech, Privacy and Technology Project.
“That treads on very thin ice constitutionally.”
The compelling constitutional questions, however, have not slowed the state-level
efforts to criminalize the distribution and posting of explicit photos
or videos without the consent of the subject.
Just two states, California and New Jersey, have actually passed so-called
revenge porn laws. But more than a dozen states have similar bills in
the pipeline, according to by the National Conference of State Legislatures.
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
Victim arguments for such bills are as emotional as they are compelling.
Annmarie Chiarini, an English professor, has become a leading advocate
for legislation, telling her story publicly in an effort to get legislation
passed in Maryland.
Her ex-boyfriend, Chiarini says, tried to sell nude photos of her on eBay,
and posted them on a pornography website.
Here’s what she wrote in a column for :
“I Googled my name, and there I was, on a porn website. The profile
included my full name, the city and state where I live, the name of the
college where I teach and the campus. There was a solicitation –
HOT FOR TEACHER? WELL, COME GET IT! The site had been up for 14 days and
had been viewed over 3,000 times. He was pretending to be me. There were
‘friends’ who commented on my pictures. He was chatting with
people as if it were me. My stomach hurt. I held my breath and printed
every page of comments, all seventeen of them.”
Chiarini’s story is the kind that new laws can be fashioned for,
free speech advocates say, while still protecting First Amendment rights.
Legislation 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
Rowland gives this example: If 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 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.
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County criminal case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult
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