Should Revenge Porn Be Illegal? Victims Say Yes, and so Does the California Legislature

On September 23, 2013, The New York Times published an article entitled “Victims Push Laws to End Online Revenge Posts.”  The article quoted Marianna Taschinger, who was a victim of just such posts.  Taschinger was only 18 years old when her then-serious boyfriend—who had asked her to pick out a wedding ring—manipulated her into sending him nude photos of herself by claiming that he would be the only one who would see the photos, and by also saying that if she wouldn’t send the photos, then she didn’t really love him.

Ultimately, she capitulated.  But after the couple broke up, the photos went online and—assuming that the boyfriend must have been the one who put them there—Taschinger then became a victim of what is being called “revenge porn.”

And Taschinger is far from alone. As the Times reported, revenge porn sites are multiplying.  Moreover, their victims not only see their images on these sites, but they also find details about themselves there, such as their workplaces and home addresses, and links to their Facebook pages.  As a result, the Times reported, these victims’ lives have changed, as they may (wrongly) lose their jobs over the online photos, or strangers may come up to them, recognizing them from having seen their image online.  Some victims decide, understandably, to change their names or the way they look.  But sometimes, even that doesn’t work, after someone’s online detective work leads to links to the new name that the woman at issue now possesses.  Taschinger had to give up working at the restaurant where she was employed because of the images of her, the Times reported, and she was also stalked by a man who sat outside her house in his car—surely a frightening experience.

Can Civil or Criminal Penalties Work When It Comes to Revenge Porn?

On October 13, the Times published an editorial regarding the revenge porn issue.  Its earlier news coverage had noted the existence of a push for criminal penalties, pointing out that only New Jersey, among all the states, had a law that happened to cover revenge porn, but only inadvertently so.

Now, California has laudably pioneered a revenge porn statute, which Governor Brown has signed. But many think that the penalties are disappointingly weak, leading advocates for women in these circumstances to seek stronger federal penalties.

The California statute has also been criticized due to its limitations:  It only reaches some forms of revenge porn, and imposes, at most, a misdemeanor conviction or a significant fine.  The California statute also only applies if the photograph is taken by someone who was not the woman herself . (Thus, so-called“selfies” are not within the law’s purview.)

Finally, under the law, the photographer must have intended to cause serious distress.

Both the “selfie” exception, and the distress requirement have their flaws:

First, there is the distress requirement.  The guy who is taking the photo may be pretty coarse, and may not have intended to cause anyone to take offense.  After all, he’s a guy taking photos at a party, and he’s probably drunk.  Nothing should turn on his state of mind.  What about the state of mind of the woman he’s photographing?  And what, in particular, about her ability to consent to the taking of nude or partially nude photos of herself?

Second, there is the “selfie” exception:  Such an exception seems to draw an untenable line.  What if the young woman took a “selfie” while in the bathroom at a party,  intending it for her boyfriend alone, but her camera phone was grabbed from her hands when she left the bathroom, whereupon the photo was forwarded and forwarded and eventually posted online.

Interestingly, the two law professors who were quoted in the October 12 Times piece disagree as to whether the First Amendment would permit a state law that would reach certain kinds of revenge porn.

Santa Clara’s Eric Goldman opined that such a law would be vulnerable to First Amendment challenges. In favor of Goldman’s view, the material at issue—text messages and photo images—would certainly look like it ought to be covered by the First Amendment.  Also, for addressing truly disturbing material, there are the child pornography laws.

In contrast, UCLA’s Eugene Volokh opined that he saw no constitutional obstacle to a law that was written narrowly to address naked or sexual images.  Volokh added that he thought that that is “a kind of invasion of privacy that the courts would say can be prohibited.”

While I believe that Volokh is correct that judges would see this as the invasion of privacy that it truly is, I think he should narrow his point to just nakedness, and not also, and separately, sexuality as well, as that draws a clear line.