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.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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10 Responses to Isn’t Revenge Porn Constitutionally Protected?

  1. John David Galt says:

    I hope you’re making a joke, but in case you’re not —

    I submit that “revenge porn” is invasion of privacy, because the appearance of somebody’s naked body, whether appealing or not, is a fact that person is entitled to keep private.

    (Now if that person goes out on a nude beach in her birthday suit, that may or may not be a waiver, but that’s a whole nother question.)

    • I am not making a joke.

      The person sharing the images has given up his privacy in the “appearance of his naked body” to a small extent. The trusted person publishing the images might be liable; a third party, not. The trusted person presumably knows the extent to which her license extends; the third party does not.

      In any case, there are unresolved tensions between free speech and privacy. “Invasion of privacy” is not a magical free-speech eraser.

      And pretty clearly, appearing nude in a public or semi-public place would be a waiver.

      • John David Galt says:

        Does that mean the likes of Craig Brittain and his “Is Anybody Down” site are protected? Or does his demand for money in order to take one’s picture down cross some other line?

      • Mark Bennett says:

        I think that his demands for money and his representation that he is an independent lawyer cross a couple of other lines. Possible extortion, possible wire fraud.

  2. Josh Considine says:

    Is “invasion of privacy” usually a category of unprotected speech? I hadn’t thought so, but IANAL.

  3. Ross says:

    In other words, be very careful who you send, or let take, potentially embarrassing photos. You might have a civil case, assuming you can prove damages, but there’s nothing criminal.

  4. Ric Moore says:

    Those dentures made me HOT! Ric

  5. Jay says:

    However, 2257’s requirements don’t stop within the statute, and are further discussed in 28 C.F.R § 75 et seq. That’s where the issue gets quite a bit murkier. Even then, depending on how the site’s upload tools and procedures work they may slip into the “selection” exception from 2257 exemption that you quote above.

    I’m not defending 2257, nor am I justifying these websites’ existence. 18 U.S.C. § 2257 operates in a manner that creates a lot of grey area as a pretext for its invasive enforcement mechanisms.

  6. I disagree with the notion that persons have the right to transmit nude photographs of others without that person’s consent. I have always maintained (as I did in my interview with Business Insider – although they left that part out) that it is never a good idea to transmit naked pictures of yourself to anyone. This is especially true over the Internet. In the case of PinkMeth, the conduct we complained of in our lawsuit was more than just posting pictures. The pictures were methodically cataloged by name, city, and state. Users could post comments about the photograph (typically obscene). The website linked to the victim’s Facebook profile which set them up for further harassment. The First Amendment is not an unlimited right with respect to revenge porn. Just as Mr. Randazza said (and I may be paraphrasing here): “Just because a woman consents to getting fucked does not mean that everyone gets to fuck her.” I agree with him and will continue representing victims of these websites.

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