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No, Outlawing It Isn’t Worse

October 19th, 2013

At TPM, Cathy Reisenwitz made an argument that laws against revenge porn are worse than the problem itself. She begins with a disturbing hint that the law may be like marijuana laws that put people in prison:

The state of California can now add people who post naked photos of their former partners to its criminally overcrowded prisons if they do so without permission and with the intent to cause emotional distress or humiliation.

It seems to me that this comment is wholly unnecessary. If the prisons are overcrowded, we should not put people there who have committed awful crimes? And yes, revenge porn is that sort of crime. Not nearly as bad as rape, but definitely in the same category. I am perfectly OK sending such people to jail.

She then gapes in puzzlement that the law would do more:

Proposed legislation in New York would actually widen to the ban to include photos victims take of themselves.

Yes, that’s right. Just because someone took a selfie does not make it any better when the jilted boyfriend publishes it on the Internet. Why should it?

But that’s not Reisenwitz’s main objection.

While well-intentioned, this kind of legislation is over-broad, poses serious free-speech threats and may not even be necessary going forward.

The first thing it’s important to keep in mind is that revenge porn laws criminalize speech.


As the ACLU has discussed, such laws can be used to censor photos with political importance. As Jess Rem pointed out for Reason magazine, people such as Jeff Hermes, Director of the Digital Media Law Project at Harvard, share this concern about the law. Hermes has stated that revenge porn laws could have kept former New York Rep. Anthony Weiner’s (D) nude selfies legally suppressed.

Uh yeah, no. Aside from the less significant but still relevant points that (1) it is arguable that politicians’ personal sexual peccadilloes are really newsworthy, and (2) relevant parts of the photos can be blacked out or pixellated in the case that context is somehow deemed necessary, there are two reasons why this is not an issue.

First, it is not necessary to show the image in order to report on the story. Even if a story about a politician sexting someone is not gratuitous in and of itself, the photos certainly are. I would not deem it a great threat to free speech if the media were limited to only telling us about Weiner’s selfies rather than showing us the images.

And second, no journalist would ever be prosecuted for revenge porn that did not specifically involve them. To make the person who released them liable is not something that affects freedom of the press, any more than outlawing the release of classified documents did in cases like Edward Snowden’s.

Not to mention that these laws often include language that specifies the offender must have “intent to cause emotional distress or humiliation.” If someone releases photos of a politician in a state of undress, it could be for the purpose of revenge—but the claim could very easily be made that it was for the purpose of informing the public, thus making even the person releasing the images safe from prosecution.

In fact, the laws may not be strong enough. People wishing to release these images will probably find loopholes, like having a third party post the images on the Internet. If sharing the photos with a private third party is not illegal, and if the third party has no cause for humiliating the victim, then probably no case could be made.

Reisenwitz suggests, however, that there is enough legal protection without the new laws:

Civil lawsuits have always been available to victims. Late last year a Texas judge ordered an ‘indefinite’ lock on revenge porn site PinkMeth.com as Shelby Conklin sought “punitive damages of more than $1 million for intrusion on seclusion, public disclosure of private facts, appropriation of her name and likeness and intentional infliction of emotional distress.”

The case was eventually settled, and the offenders paid restitution instead of serving time in jail. This is just one example of the many successful lawsuits by victims of revenge porn.

Before the law, there were already at least seven different kinds of laws revenge porn could have violated, depending on the circumstances. They include but are not limited to laws dealing with extortion and blackmail, child pornography, invasion of privacy, copyright infringement, voyeurism, intent and violation of the Consumer Protection Act.

The first example Reisenwitz cites is clearly inapplicable. It was against the revenge porn site, not the person releasing the images. You don’t even need revenge porn sites to release such photos, and sites not intended for such photos could claim they had no idea of the photos’ origins. Also, many of the charges dealt with commercial distribution, something that would not apply to an individual posting to a porn forum. Not to mention that many such sites will not be within the courts’ jurisdictions, or that any victim making such a case will become a huge target for similar sites and their supporters.

The other laws? Extortion and blackmail laws would only apply if the jilted party made such threats, which is probably very rare. Child pornography would apply only in limited cases. I’m not a lawyer, but I would think citing invasion of privacy is pretty weak—people are not penalized for spreading personal information about exes, and the fact that the photos were consensual probably negates this as a possible legal avenue. Copyright infringement could apply to selfies, but not to images taken by the perpetrator—and it would be pretty difficult to assess financial damage if you had no intent to sell the images yourself, and the perpetrator did not profit themselves. Voyeurism is laughable in this context. As for the Consumer Protection Act, it relates to commercial profit, again not applicable to the individuals.

It’s pretty clear that these laws are insufficient. Mitchell Matorin has a much more detailed rundown.

No, the law is not worse than the crime. Not in the least. And frankly, laws against privacy infringement are far, far too weak in this country. As with all forms of intellectual property and information in general, we are in a new age, and the laws are too far behind. These new laws are not inappropriate, and in fact, we need a lot more regulating how information is collected, disseminated, and bartered.

Balking at making revenge porn illegal is, if anything, a frightening step in the wrong direction.

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