Revenge-Porn Civil Litigators (and Those Who Are Not)

Lawyers who have gotten civil judgments against people publishing revenge porn:

  1. ;Kenton Hutcherson
  2. Kyle Bristow
  3. Marc Randazza;
  4. Joseph Mathew

Notice something about the CCRI’s list of attorneys: None of those lawyers who have successfully litigated revenge-porn suits for victims are on it.

?

While I am certain that penal revenge-porn statutes should and will eventually go the way of the dodo, I don’t feel the same way about civil liability for revenge porn. Unlike a criminal judgment, a civil judgment serves to make the victim whole; unlike a criminal judgment, a civil judgment can be calibrated ($1 in damages, or $500,000?) to the wrong done; unlike a criminal judgment, a civil judgment does not destroy the defendant’s future. Publishing revenge porn is socially corrosive behavior, and its victims should have a civil remedy for the actual harm done to them.

How do we get to the point where civil judgments are permitted by the First Amendment, but criminal prosecutions for the same speech are explicitly not? I’m not sure we do, but civil cases are procedurally different from criminal cases: A penal statute is more like a prior restraint than it is like a civil judgment. Most civil First Amendment challenges are post judgment and as applied; criminal overbreadth challenges to statutes should be pre judgment and as written.

If we are going to get to the point where revenge porn has civil but not criminal consequences, though, we need competent lawyers in both arenas — criminal-defense lawyers who grok the First Amendment, and civil litigators who are competent and willing to act. 

CCRI lists some of the many people talking the talk when it comes to remedies for revenge porn. None appear to have backed their words with action. Whether any of them are competent to do the job of Hutcherson, Bristow, Randazza, or Matthew is doubtful.

3 Comments

  1. But but but we have these lawyers and they are super experts!
    Pay no attention to the fact they have no experience with these actual cases, they can sit on the sidelines and tell everyone else what is wrong in the world with these things.
    Our cause is more important than the victims, we need to wrap a law around them to make them feel better. Undermining the foundations of the country is a small price to pay so we can show how much we care!!
    Not every ill needs a criminal law covering it, using an iPad to squash a fly seems like it would be stupid when you can get a flyswatter.

    Could revenge porn cross a line to where it needs something criminal?
    Eventually.
    Some idiot is going to cross a line well past posting pictures eventually, and it will be called a ‘Revenge Porn’ case because that is the hot button issue but the charges will be for other acts.
    I think civil judgements are a very useful tool, your actions have consequences and its going to cost you.
    Rather than wasting time trying to find a way to shoehorn in a criminal law, crafting strong foundations for civil suits that reflect these acts rather than the piecemeal options out there would be a much better way.

    If they are more concerned about appearing to be the experts on the topic, than actually being on the frontlines…. perhaps they aren’t the best choice to listen to.

    Perhaps the 22 yr old who got mad & shared a picture out of anger needs a different level of punishment than the bottom feeders who run sites & extort victims for cash. There will never be a 1 size fits all law, but we need to craft a law that accounts for the breadth of possibilities from the barely adult idiot to the scum who prey on the misery of others.

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