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
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
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.