‘REVENGE PORN’ RAISES QUESTIONS INVOLVING FREE SPEECH AND PRIVACY

Lawmakers are coming to grips with so-called “revenge porn,” as Liz Halloran reports for NPR, which means they’re looking for ways to criminalize it. After all, there probably should be a way to discourage a spouse or lover – usually a former spouse or lover – from posting images or videos of you online without your consent.

But as we’re coming to find, laws that attempt to criminalize revenge porn in the name of safeguarding privacy run up against First Amendment free speech protections.

What Is Revenge Porn?.

Revenge porn, according to Wikipedia, is “typically uploaded by ex-partners or hackers” and is published online without the consent of the person depicted. You could argue against allowing a partner from photographing or recording in the first place, but “selfies” and hidden cameras make that argument moot.

Regardless of the circumstances under which the sexual content is created, the act of publishing it online – often with accompanying personal details like names, employers, and links to social media profiles – is why revenge porn has lately been the target of lawmakers across the nation.

Examples of Revenge Porn Laws.

Halloran quotes a lawyer with the American Civil Liberties Union: “[T]he reality is that revenge porn laws tend to criminalize the sharing of nude images that people lawfully own. That treads on very thin ice constitutionally.”

The ice may be thin, but that doesn’t mean lawmakers aren’t trying.

California and New Jersey are apparently the only two states that have passed revenge porn laws – for now. Halloran writes that there are “bills in the pipeline” in state legislatures across the country.

These laws and bills differ in scope and manner of punishment. Some make revenge porn a misdemeanor; others, a felony. Some bills probably go too far. For example, Halloran cites an Arizona bill that would make it a crime if you get an unsolicited text and show the image to a friend.

Then, of course, there’s the free speech issue. According to the ACLU lawyer, “[T]here simply isn’t another example I’m aware of where there are criminal penalties for sharing otherwise lawful speech.”

Revenge Porn: The Next Sex Crime?.

Israel is apparently the first country to have made revenge porn a bona fide sex crime. As Sam Frizell reports for TIME, government officials in that country characterized some types of revenge porn as “virtual rape.”

“We are witnessing more and more cases of sexual assaults that were filmed and distributed in public without restraints and without limits; this legislative intervention is necessary and will help fight the shocking phenomenon of ‘virtual rape,’” according to Yifat Kariv.

Will the U.S. follow suit and make revenge porn a sex crime?

We are likely to see a variety of approaches – as we have already seen – as each state works to criminalize revenge porn, but lawmakers will be required to create bills that can withstand constitutional scrutiny under the First Amendment in addition to considering the rights of those who may be accused.

This is because the accusation of any behavior that has been classified as a sex crime has the potential to ruin a person’s life.

As we’ve already seen with the Adam Walsh Child Protection and Safety Act, which, among other things, created the sex offender registry, the criminalization of sex offenses can go too far. The activist Patty Wetterling, in the years following her son’s abduction, once played a major role in the creation of this law, but in the years since, Wetterling has publically criticized the law for its overreach.

We should be careful to safeguard liberty against overreaching and intrusive criminal laws – as much as we are careful to safeguard the privacy and free speech – as the states continue to grapple with revenge porn.

About the Author: Criminal Defense Attorney Patrick Roberts.

This informational article was provided by Patrick Roberts, the founder of Marcilliat & Mills PLLC, a North Carolina criminal defense law firm. With offices in Wilmington, Raleigh, and Charlotte, our defense attorneys handle state and federal sex offense cases throughout North Carolina. Contact our Raleigh office today online or call 919-838-6643 for a free consultation.

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