Do 'revenge porn' laws violate the First Amendment?

A defendant  charged under Illinois' “revenge porn” law argued that the law was an unconstitutional restriction on her freedom of speech, reported the ABA Journal. The trial court agreed, holding that the law doesn’t serve a compelling government interest because the harms of revenge porn are speculative.

As a result, the state of Illinois went before its state supreme court last May, defending the statute at oral argument. Around the same time, Jordan Bartlett Jones, was making a similar First Amendment argument in the Texas Court of Criminal Appeals. Appeals courts in Wisconsin and Vermont rejected First Amendment challenges to revenge porn statutes in 2018—but in Texas and Illinois, the lower courts have given the First Amendment claims a foothold.

Decisions striking down those laws could threaten revenge porn laws in all 46 states (plus Washington, D.C., and Guam) that have them. But Mary Anne Franks, president, legislative and tech policy director of the anti-revenge-porn group, the Cyber Civil Rights Initiative, says that could be for the best.

“Sometimes these challenges are legitimate, in the sense that it may be good for the legislature to take a pretty hard look at whether or not they’ve crafted the best law possible,” says Franks, who teaches criminal and First Amendment law at the University of Miami.

Laws like the ones being challenged, started springing up in early 2010, when it started becoming common to see intimate images shared without the subject’s consent. Some images become public via hacking or extortion, but often someone puts them online after a breakup in order to hurt the person depicted. In those cases, the poster may send the images directly to the victim’s employer, family and friends or to a for-profit revenge porn website.

However, it got harder to do that with impunity starting around 2013, when states began passing laws outlawing revenge porn. Four states: Wyoming, Mississippi, South Carolina and Massachusetts still don’t have specific laws outlawing revenge porn. New York and Nebraska are the most recent states to pass bills outlawing the offense.

There’s little cohesion among state revenge porn laws. In 2016, U.S. Rep. Jackie Speier, D-Calif., introduced a bill that would make revenge porn a federal crime, but it didn’t pass. In 2017, Sen. Kamala Harris, D-Calif., and two other senators introduced a bill that would criminalize the distribution of revenge porn. Speier and U.S. Rep. John Katko, R-N.Y., introduced a third bill in May, the SHIELD Act, which is pending with the judiciary committee.

The resignation of former freshman U.S. Rep. Katie Hill, D-Calif., in October, after revealing pictures of her and a campaign staffer were made public online, sparked renewed public interest in revenge porn. Generally, recent pushes to regulate revenge porn coincide with growing awareness around sexual harassment and abuse as well as discussions around the government’s role in regulating social media.

It’s tough to say how many people have been prosecuted, but Franks says only a few have brought the sort of First Amendment challenge at issue in the four appellate cases. A fifth First Amendment challenge, filed by the ACLU of Arizona (Antigone Books et al v. Horne), led a federal district court to strike down that state’s first revenge porn law in 2015.

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