Computers, Privacy & the Constitution

Revenge Porn

-- By NawalMaalouf - 08 Mar 2015


We’ll call it “revenge porn” – sexually graphic images of individuals distributed without their consent. Although the distributors are not always motivated by revenge, frequently enough, these images are used to harass or degrade the persons depicted. The harm is very real for the victims and it is easy for one to sympathize with their plight. Several states have done so, and many have passed laws criminalizing revenge porn or have otherwise provided some kind of redress for victims. Recently, legislation has even been proposed at the federal level. But while such legislation may benefit those who have been persecuted through revenge porn, the threat to free speech should not be taken lightly. Ultimately, free speech and state power are intertwined, and taking away from the former necessarily adds to the latter.


One reason why many back these laws against revenge porn, and ultimately as I will argue free speech, is because of their conception of the harms done. The photos posted online often include victims’ personal information, including their names, addresses, phone numbers, places of business, and even links to their social media profiles. In addition to the embarrassment suffered from having these explicit images posted online, individuals often suffer additional consequences. Employment opportunities are jeopardized. Strangers approach and harass the victim. Sometimes, they are even threatened with physical violence. Supporters of these laws see these harms and the violation of privacy as a much greater concern than any sort of restriction on free speech. This is where the problem lies.

Supporters of anti-revenge porn laws view free speech absolutists as na´ve to the consequences discussed above. Thus, those who oppose these laws on free speech grounds are often accused of victim-blaming and supporting the abstract ideal of free speech without regard to the harms faced by those affected by the publication of the images. But these criticisms fall short. To begin, one who merely points out the problem of restricting free speech in no way blames the victim. It is a perfectly consistent position to support the right while opposing the content. The more concerning argument, however, is the idea that one should abandon the ideal of completely free speech, because of the notion that some circumstances necessitate such a result.


The First Amendment to the United States Constitution prohibits the making of any law “abridging the freedom of speech.” This prohibition is not qualified. It does not prevent abridgement of only the speech we like, or just the speech of certain, protected people. It defends all speech, regardless of its nature. The founding fathers wrote this blanket prohibition on restricting speech with full knowledge of the adversarial relationship between free expression and state power and with the desire to place express limits on the latter. They understood that allowing the government to place limits on expression would move us toward the very despotism they were trying to escape. There are only two possible outcomes when it comes to speech and state power. One end of the binary relationship is total state control of information and ability to censor. On the other end is completely unregulated and unconstrained speech. Supporters of anti-revenge porn legislation would have us believe that there is some kind of middle ground, where they can have their cake and eat it too. But this is a dangerous and fictitious thought.

Advocates of anti-revenge porn legislation try to tow a line between restricting speech and providing relief for the victims of this kind of harassment, but they ultimately fail. Those who take a middle-of-the-road approach invariably end up making choices between what speech and people we will allow our government to privilege and what we will not. Trying to find a legal solution that will allow victims of revenge porn to limit the publication of images, but that is not so restrictive that we cannot criticize Anthony Weiner for his own, personal indiscretions is a lost cause. When we try to differentiate between what speech is valued enough by society to remain protected, we accept the notion that the government has the power to determine what ideas are good and what ideas are bad. We take the step towards the very tyranny this country sought to avoid. In this sense, all speech has political implications, and it is therefore important to keep even the most unseemly expressions free.


I am not a proponent of revenge porn. In fact, I despise the idea that this kind of harassment exists in our society, and I would love to do everything in my power to stamp it out. However, I believe the best way to accomplish that is through my own free expression, and not by ceding freedoms to the government. There are many societal ills that deserve correction, but we must understand that it is not always the place of government to take on that burden. In this instance, allowing these laws may provide some short-term gains for the victims portrayed in revenge porn, but ultimately, all of us would lose the long-term battle against totalitarianism.

I don't understand this argument. If a crime is defined solely as the publication of information harmful to someone else, the ordinance falls, because the First Amendment bars it. But criminal ordinances establishing offenses one or more of whose material elements could be satisfied in some circumstances by a damaging publication (harassment, assault, reckless endangerment, etc.) are facially constitutional, and can be tested as to application on appeal from any resulting conviction. Civil liabilities also have First Amendment limits, as cases from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) to Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) show. But providing a tort remedy for the intentional infliction of emotional distress on a person not a public figure through damaging publication is plainly constitutional under Fallwell. So where is the supposed constitutional issue?


Webs Webs

r3 - 26 Jun 2015 - 20:17:00 - MarkDrake
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