Isn’t Revenge Porn Constitutionally Protected?

Dylan Love at Business Insider (the article contains lots of bad legal advice) writes:

There is a seedy underbelly of the internet where people post nude or otherwise compromising photos of their ex-girlfriends or boyfriends for anyone to see, sometimes to get back at a lover who jilted them.

These so-called “revenge porn” sites bring up a number of questions. Why aren’t they illegal?

Why would they be?

In the Business Insider post, criminal-defense lawyer Jason Van Dyke argues that the revenge-porn sites are illegal because they don’t appear to keep the records of performers’ ages required by 18 USC 2257. I think he is probably wrong. 18 USC 2257 applies to those who “produce[] any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image” containing sexually explicit conduct, and requires them to keep records of the performers’ ages. “Producing” includes “inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct” but does not include “the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.” Assuming that the owners of the revenge-porn sites did not select or alter the images they are publishing, they are not “producers” and do not have to maintain records of the performers’ ages. Holding a revenge-porn site liable for violating Section 2257 would be like holding a bookstore or cable channel liable.

If a revenge-porn site did select or alter its images and Section 2257 did apply, it would be an indirect hypertechnical attack on sleaze, like charging Capone with tax evasion. It might get the job done, but it wouldn’t get to the root of the matter.

Marc Randazza’s two rules of porn are:

Rule #1: The subjects must be adults
Rule #2: The subjects must be consenting adults

Reasonable people might agree with Randazza: publishing porn without its participants’ consent is bad. But not all bad speech is constitutionally unprotected. What removes this particular speech from the protection of the First Amendment? The problem with revenge porn isn’t that its subjects are not adults (though they may not be) but that its subjects are not consenting adults. Assuming the sites are complying with regulations, why would the publication—speech—itself be illegal?

Van Dyke, a Texas lawyer, told Business Insider, “there are people on all sides of the political spectrum who want it to be a felony. If we can’t agree that this shouldn’t be allowed, then we have serious problems.” In Texas it’s already a felony. Texas’s improper-photography statute, Texas Penal Code Section 21.15, makes it a felony to “broadcast[], or transmit[] a visual image of another…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person.”

But that statute is, as I have argued here before, unconstitutional.

Transmitting a visual image of another person is “speech”; the statute is not limited to the transmission of obscene images (which would be constitutionally unprotected). The images are not defamatory (they are true); they are not inciteful or seditious; and they are not child pornography. Since the communications don’t fall into any of the categories of unprotected speech, the courts would have to create a new category to uphold the statute in the face of a free-speech challenge.

Reasonable people, agreeing with Randazza, might look for ways to shut down the revenge porn sites—civil lawfare, or (as in the case of the site that raised Randazza’s hackles here) criminal wire fraud and extortion charges.

The whole point of free speech is that unpopular speech is protected. Popular speech doesn’t need the protection of the First Amendment. So whenever “people on all sides of the political spectrum” want speech to be a felony, this is a warning sign; we need to take a careful look at what we’d be giving up by making it one. 

In the case of the Texas statute, it’s plain what we’ve given up: not only the right to transmit titillating images of people who would consent (but haven’t consented) to our doing so, but also the right to transmit any image without the explicit consent of its subject, if some prosecutor might think that our intent in doing so was to arouse or gratify sexual desire.

Angry Mike AndersonI hope this sexy man makes you hot!
(Image from here, by Don Hooper?)

There: I have transmitted a visual image of Harris County District Attorney Mike Anderson without his consent and with the intent to arouse your sexual desire. Do you think I have just committed a felony for which I should be prosecuted? Texas’s improper-photography statute allows my prosecution.

People do and say nasty things to each other. Ex-lovers and ex-spouses have the means and often the motivation to do and say really nasty things to each other. Revenge porn is particularly nasty. But the United States Supreme Court has, thankfully, not yet made “nasty speech” an unprotected category.

Behind the Jury-Selection Curtain: Challenges for Cause

A commenter on this post asks:

I do have a few questions on challenges for cause. Mostly, how are they resolved? Is it entirely about negotiation to consensus and good faith, or does the judge have complete discretion? Also, what happens if you don’t have a large enough panel remaining for a strike zone of 32 (e.g. thirty nullificationists show up that day)? Do you just have fewer peremptory challenges, or do you go get a new panel?

The judge does not have discretion to deny a challenge for cause once the law has been explained to the juror and it has been established that the juror cannot follow the law.

That the judge does not have discretion to do something does not mean that the judge can’t do it or won’t do it. It just means that if the judge does it it may be grounds for reversal on appeal.

So let’s say that you’re a potential juror, and you explain that you can’t presume my clientto be innocent because he’s charged with burglary of a motor vehicle and someone broke into your car recently and you’re too angry about it to see straight. I challenge you for cause. The judge denies my challenge. What I have to do next is preserve error—to make a record for the court of appeals so that they can see that the judge screwed up, that I gave her a chance not to, and that my client was harmed by the screwup.

  • The jury selection is on the record—that is, the court reporter is taking it down. That’s the first step.
  • The second step is to make sure the strike lists—the jury lists with the State’s and the defense’s strikes—are on the record. This usually happens as a matter of course.
  • The third step is to make a timely and specific objection. This is almost always a requirement for preserving error in trial. I have to tell the judge what she has just done (or is about to do) wrong. In this context, I do it by making the challenge for cause.
  • Then I have to use a peremptory challenge to remove you from the jury. That’s the fourth step.
  • After I’ve removed you from the jury, the fifth step is to use up the rest of my peremptory challenges. If I only use nine peremptory challenges, the court of appeals will say that my client wasn’t harmed by the denial of the challenge for cause.
  • Not only that, but I have to ask for more peremptory challenges, because additional peremptory challenges could fix the judge’s mistake. I have to keep asking until the judge denies me any additional peremptory challenges. That’s the sixth step.
  • The seventh step is to identify, for the record, an objectionable person seated on the jury on whom I would have exercised a peremptory challenge if I had one.

If I leave out any of those steps, the court of appeals will rule that the judge’s error in denying my challenge for cause was harmless error and affirm the conviction on appeal. As you might imagine, trial lawyers more often than not miss a step; that’s why my paper has checklists of steps to preserve error in this and other circumstances. My hope is that defense lawyers will keep my paper handy and refer to the checklists in trial.

If we had a panel of sixty with thirty nullificationists, the judge would probably look cockeyed at the prosecutor and ask her if she really wants to try a case that half the population thinks shouldn’t be prosecuted. If the prosecutor wanted to go on, the judge could carry on—since the parties aren’t privy to each other’s strikes, and since they don’t have to use all of their strikes, it’s possible that the defense and State would not strike a total of twenty people. If they did and a jury of twelve could not be formed, the panel would be busted and the usual practice is to send that panel home and try again the next day with a larger group.