Revenge Porn - Is it a Crime or Free Speech?

Posted By Law Offices of Robert M. Bernstein || 31-May-2016

In the struggle between free speech and exploitation on the Internet, one battleground is a phenomenon known commonly as "Revenge Porn." Revenge porn is the non-consensual publishing of sexually explicit photographs or videos depicting sex acts. These images are frequently uploaded by the victims' former intimate partner. The motivation for doing so varies in each case. Often, a former spouse or lover will post images to shame, humiliate or intimidate a partner who has broken off a romantic relationship.

Regardless, should sharing such images be a crime punishable by a jail sentence? Many free speech activists believe that any law which criminalizes the sharing of nudity on the internet infringes on a person's free speech rights. This is not the first time that free speech and people's right to privacy have seemed at odds with each other. The reality is that a person may be sharing an image they lawfully own, which raises the question: Does the government have the right to criminalize that action?

There has been a strong concerted effort to criminalize these acts, with some activists claiming it goes beyond mere harassment and is the equivalent of sexual abuse. Others believe that the criminalization of these postings goes too far and that victims have other remedies available to them under civil law and requests to have the images removed from websites.

Currently over 30 states have adopted laws to target revenge porn. In California, Penal Code section P.C. 647(j)(4) provides that: If you have an image of an intimate body part of another identifiable person, that you intentionally distribute, despite an understanding between you and that person that the image would remain private and you know, or should know, the distribution of the image will cause the person serious emotional distress and the person depicted actually suffers emotional distress you are guilty of a misdemeanor crime. This criminal misdemeanor is punishable by up to six months in jail, and fines up to $1,000.

Some victims of revenge porn and activist groups see this line of sentencing as soft or too forgiving. They claim the crime can ruin lives. Because revenge porn is often posted with accompanying personal information—name, address, occupation—detractors see the violation as gravely, personally destructive.

On the contrary, some lawmakers and groups like the ACLU see the enhanced laws regarding web content as potentially destructive to free speech. However, the California law focuses on the person's intent to cause distress to another, which makes it a much clearer argument that it is not a free speech issue.

Conversely, some iterations of similar laws would criminalize the distribution of any nude images in a way that could punish innocent people who did not have any malicious intent. One such law, proposed in Arizona in 2015, went so far as to deem the sharing of any nude photos without the explicit consent of that person to be a felony punishable by up to four years in prison. It ultimately did not pass the legislature. Such overbroad laws clearly infringe on free speech rights.

Online harassment continues to be a serious, difficult problem for victims as well as lawmakers. The California model provides a sensible approach by focusing on consent and malicious intent. While it can be easy to feel like our actions online are anonymous and harmless, it is important to remember this is not always the case under criminal law.

Categories: Sex Crimes

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