Mimesis Law
16 December 2017

Revenge Porn: When A Problem Is Not A Crime

July 31, 2015 (Mimesis Law) — The text is straightforward.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
U.S. Const. amend. I.

You cannot abridge a person’s right to speak, at least not based on the content of their speech, just because you don’t like it. You definitely are not supposed to put people in jail because of their exercise of free speech, but that is exactly what some people want to do.

Revenge porn is an example of this. Some, like the University of Miami Law School professor Mary Anne Franks, call for criminal punishment for what is, at its heart, free speech. You are punishing someone for the content of their speech. The problem with all of these laws punishing speech is that they are blatantly unconstitutional.

Sure, there are exceptions to the First Amendment, but there is none for speech that hurts your feelings.  Spin as Franks may, it’s just not there.

So in Arizona, the revenge porn law was killed by U.S. District Judge Susan Bolton, after the Arizona Attorney General threw in the towel, accepting what the ACLU had said all along, that the law violated the First Amendment. Of course, the legislature will have another go at it, and state representative J.D. Mesnard intends to introduce a new version.

In New Jersey, a revenge porn law netted NFL linebacker Jermaine Cunningham a 3-year probated sentence after he posted photos of an ex-girlfriend. Cunningham was in no position to fight, since police had also found a .380 handgun and hollow-point ammunition during their search. So if he fought the unconstitutional part of the charges, the posting of the photos, he gets hammered on the unlawful possession of a firearm part and does years in a state prison. So he pleads out.

In New York, the apparent first attempt to prosecute revenge porn in that state was thrown out in People v. Barber. The court there ruled that to prosecute revenge porn, one had to meet all of the elements of the offense and that “while reprehensible, [the act] does not violate any of the criminal statutes under which he is charged.”

One can contrast that with how the FBI handled their revenge porn case. When the Feds went after Hunter Moore in California, they did not go after the posting of revenge porn, but fifteen actual crimes that Moore had committed. They charged him with hacking and stealing photos, and got a guilty plea out of him.

In Texas, Mark Bennett has posted on the constitutionally issues of revenge porn. Bennett not only writes well, but he has street cred among Texas lawyers, having won a 9-0 decision on the unconstitutionality of part of the Texas law covering “Online Solicitation of a Minor,” Tex. Pen. Code § 33.021, in Ex parte Lo. There, the court held that the statute was facially overbroad, was content-based, and did not pass strict scrutiny.

So in the meantime, while the Texas Legislature was rushing to remove the thought crimes (it is no defense to prosecution that the actor was fantasizing, not actually acting to solicit) from the part of the law that wasn’t squashed by the Texas high court, Montgomery County was running sting operations to arrest more people. And the local judge was apparently tossing the cases as soon as they got to his court, citing to the Lo decision. So of course the DA is going to appeal… because it is offensive and to protect the children…

The problem here stems from a belief that if something is offensive, it can therefore be made criminal. Not true. As an Oklahoma Sooner fan since I was knee-high and as a graduate of Texas A&M, I’m offended every time that I see the burnt orange of Texas University.* But that doesn’t mean we should throw people in jail for that. Okay, well, maybe we should, but we can’t. It’s not constitutional to jail someone for free speech, which is what wearing that awful color actually is, free speech.

Revenge porn is like that. It’s clearly offensive, at least as far as the egregious examples suggest, but in most cases the so-called victim knew that the photos or video were being taken and consented to the photography. In a good number of cases, the “victim” was also the photographer, taking a selfie and sending it to their partner willingly. They are just upset that after the relationship went bad, the partner posted the photo somewhere, or sent it to someone.

If it was stolen or hacked, that’s a different problem, but if it was freely taken and willingly given away without strings attached, then it’s a matter of offense taken at what the partner did with it. So they see the solution as putting their former partner in jail for offending them.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Texas v. Johnson, 491 U.S. 397, 414, (1989).

If the victim is offended, there are civil remedies, there are alternative offense based upon the conduct committed rather than the content of the speech, and many of the private search engines are voluntarily removing links to revenge porn content. This doesn’t implicate any First Amendment concerns since it only applies to government action, not private action.

That should be the end of it, not incarcerating people for speech. The text of the First Amendment is straightforward. There is no exception for hurt feelings.

* Yes, I know that Texas grads think their school is named some other way. They are wrong.

Main image via Flickr/Dino Quinzani

7 Comments on this post.

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  • Laura Holloway
    31 July 2015 at 9:35 am - Reply

    While speech is certainly protected, we recognize a few types of speech that are not, and one of them is verbal abuse. Although constitution ally shaky on the surface, I rather doubt that the US government would be unable to fire a verbally abusive employee because of the 1st Amendment. We have made it effectively illegal to create a hostile work environment, but not a hostile liffe environment?

    My guess it that it would be possible to prosecute someone for slander or libel if the revenge porn was accompanied by words such as “slut.”

    I think, in some circumstances, the perpetrators of these acts genuinely want people to attack the victim, and in those cases, where name and address are given, it may be considered verbal assault.

    It’s not that the victim is offended, but rather that they are violated by revenge porn.

    • shg
      31 July 2015 at 10:32 am - Reply

      …we recognize a few types of speech that are not, and one of them is verbal abuse.

      Not sure who the “we” is that you’re referring to, but not under the law of the United States. There is no exception to the First Amendment for “verbal abuse.”

      My guess it that it would be possible to prosecute someone for slander or libel if the revenge porn was accompanied by words such as “slut.”

      Then your guess would be wrong, as neither libel nor slander are crimes, and no one gets prosecuted for defamation.

      It’s fine to make up pretend law that you think ought to exist, but it should be clear that nothing you’ve written is legally accurate. It’s total nonsense.

  • Greg Prickett
    31 July 2015 at 2:31 pm - Reply

    As Scott noted, verbal abuse is not an unprotected class of speech.

    You also are mistaking the right of an employer to terminate someone’s employment with the authority of the government to take away someone’s liberty. Those are completely separate issues.

    You can’t prosecute someone for slander, you can sue them civilly, and you can also sue them civilly for revenge porn, if (and this is a big if) you can show that they committed a tortuous act in posting the photos or video.

    It’s also not verbal assault. Assault has a very specific legal definition, and speech over the internet does not meet that definition.

    I get that the victim feels violated. I get that revenge porn is vile. But so are the white supremacists or any number of other groups–and still their speech is protected. It is not and should not be a crime to speak.

  • Wrongway
    2 August 2015 at 8:14 am - Reply

    “So if he fought the unconstitutional part of the charges, the posting of the photos, he gets hammered on the unlawful possession of a firearm part and does years in a state prison. So he pleads out.”

    Umm.. aren’t there 2 charges here that are Unconstitutional ??

    • Greg Prickett
      2 August 2015 at 8:24 am - Reply

      Umm.. aren’t there 2 charges here that are Unconstitutional ??

      As far as I’m concerned sure. But I also think that citizens should be able to own machine guns, artillery, and tanks (if they can afford it). But the courts don’t agree, and it is currently constitutional to have restrictions on owning firearms.

      • Wrongway
        3 August 2015 at 6:48 am - Reply

        Yeah, New Jersey Right ??

        thanx for the reply

        • Greg Prickett
          3 August 2015 at 11:53 am - Reply

          No problem, and yes, it is New Jersey.