Josh Blackman sent me the link on Christmas Eve:
Humbach on the Constitutionality of Revenge Porn Statutes
John A. Humbach (Pace University School of Law) has posted The Constitution and Revenge Porn (Pace Law Review, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract: Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing. Note: This article is a revised and finalized version of a working paper previously available and entitled “How to Write a Constitutional ‘Revenge Porn’ Law.”
I had seen a rough draft of the paper a year ago and hadn’t thought enough of it to write about it here. Humbach’s critique of existing revenge-porn statutes is substantively nothing new—I’ve been saying the same thing for years.
What is new is that a law professor finally grew the backbone to say that the malevolent Mary Anne Franks and Danielle Citron have sold state legislatures a bill of goods. It’s nice that the professor now says “the two prohibitions constitute unconstitutional content discrimination, viewpoint discrimination and speaker discrimination, not to mention prior restraint,”1 risking disapprobation and accusations of misogyny. But where was Humbach when Franks and Citron were selling their steaming pile of unconstitutional horseshit? He wasn’t in Austin with me testifying against Section 21.16 of the Texas Penal Code (“Unlawful Disclosure of Intimate Visual Material”), that’s for damn sure.
So what about the promised “constitutional revenge porn law”? Here’s what Humbach proposes:
It is a criminal offense for any person, in the absence of a purpose to convey or disseminate truthful information or ideas, to do any act intended to cause or otherwise attempt to cause extreme emotional distress to another person.
The first thing that you’ll notice is that this statute does not forbid revenge porn, which is the dissemination of truthful information (actual images) with the intent to cause emotional distress to another person. So Humbach’s constitutional revenge porn law is not even a revenge porn law.
Not only that, but Humbach’s constitutional revenge porn law is not constitutional. The dissemination of untruthful information is forbidden, but the dissemination of truthful information is permitted. By including the “absence of a purpose to convey or disseminate truthful information or ideas” phrase, Humbach has written a content-based restriction on speech, which is presumptively invalid.
That was not Humbach’s intent, of course—he meant to exclude “communicative content” from the statute’s ambit, and so save it from a facial challenge. But “communicative content” includes the dissemination of untruthful information and ideas as well as truthful ones.2
In the end, it’s not clear why Humbach proposes this statute, other than as a sop to those who think that revenge porn must be penalized.3 Even without recognizing the explicit content-based nature of the statute he admits that “such a law would still represent…an initiative by government to suppress speech that it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.”
“Prior restraint” is meaningful in criminal court only in that all speech-restricting penal statutes are equivalent to prior restraint in civil court. Civil tort cases do not have much to say about how criminal courts approach First Amendment attacks on penal statutes; prior restraint cases do. ↩
Could a Pace University Law Professor possibly be this dim? ↩
Humbach also calls Franks’s and Citron’s law review article “important.” Such shoddy work only becomes important when it is called out as shoddy. ↩