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Criminalizing Revenge Porn: The Debate

Written by Justine Larsen, a second year law student at the Ohio State University Moritz College of Law.

I. Introduction

With the recent proliferation of websites allowing third parties to post images, a new issue has appeared in the legal spotlight: revenge porn.  While the name itself connotes the stereotypical scenario of a scorned ex-boyfriend or girlfriend posting illicit images and video of his or her former lover online, this term also includes hacking into a person’s computer or email and posting the discovered private photographs.  See Lorelei Laird, Victims Are Taking On ‘Revenge Porn’ Websites for Posting Photos They Didn’t Consent To, ABA Journal (Nov. 1, 2013, 9:30 AM), available at http://www.abajournal.com/magazine/article/victims_are_taking_on_revenge_porn_websites_for_posting_photos_they_didnt_c/.  These images or videos are generally of women and are usually posted along with identifying information, including her “real name, city and state, and often links to social media profiles. . . .  Some postings have included information for contacting the victim’s work supervisor or family.”  Id.

The inclusion of identifying information has serious consequences to the victim.  On a professional level, many victims will be unable to find employment as the majority of employers conduct online searches on applicants and may reject applicants based on their search results.  See Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 352 (2014) (indicating that “nearly 80% of employers consult search engines to collect intelligence on job applicants, and, about 70% of the time, they reject applicants due to their findings.”).  Victims will also face personal repercussions, such as strains to personal relationships when family and friends view or receive the images.  Laws, supra.  Victims may suffer not only online harassment but could also face offline stalking and physical attack.  Id.  “Posting naked images next to a person’s contact information often encourages strangers to confront the person offline.”  Id.  See also Keats Citron & Franks, supra, at 350–51.  These harms have culminated in some drastic measures by victims; for example one woman changed her name, and at least two women have killed themselves.  See Jacobs, supra;  See also Laws, surpa.

While some states have passed legislation to criminalize revenge pornography, the debate continues as to whether criminalization is the correct path, and if criminalization is even warranted at all.  See, e.g., Barbara Herman, Illinois Passes Revenge Porn Law with Teeth: ‘Other States Should Copy,’ Says Privacy Lawyer, Int’l Business Times (Jan. 6, 2015, 4:18 PM), http://www.ibtimes.com/illinois-passes-revenge-porn-law-teeth-other-states-should-copy-says-privacy-lawyer-1774974.  This article seeks to present some of the arguments and counterarguments in the debate.

II. Civil remedies already exist to redress the harms to revenge porn victims

Erica Johnstone, co-founder of the nonprofit Without My Consent, acknowledges that “[t]here are lots of laws that we can use on the civil side, from invasion of privacy to emotional distress to harassment and stalking” to remedy victims’ harms.  Clark-Flory, supra.  For example, a victim can utilize copyright law to demand the removal of the image, and at least websites hosted in the United States will likely comply.  Matthew Goldstein, Law Firm Founds Project to Fight ‘Revenge Porn’, N.Y. Times (Jan. 29, 2015), http://dealbook.‌nytimes.com/2015/01/29/law-firm-founds-project-to-fight-revenge-porn/.  If this is the case, why is criminalization necessary?

Proponents for criminalization argue that civil remedies are insufficient for several reasons.  First, victims ultimately want the removal of the images or videos from the internet.  However, while copyright law may attain this ultimate goal, “a victim must publicly register a photo or video that she or he would rather no one ever see.”  Id. (emphasis added).  Other civil actions also “generally require further breaches of privacy to be effective.”  Franks, Why We Need a Federal Criminal Law Response to Revenge Porn, Concurring Opinions, (Feb. 15, 2013), http://concurringopinions.com/archives/2013/02/why-we-need-a-federal-criminal-law-response-to-revenge-porn.html [hereinafer Why We Need a Federal Criminal Law Response].  Essentially the victim contradictorily must make the image or video public in order to remove it from the public forum.

Second, lawsuits are expensive and lengthy, and many victims cannot expend the time or afford the costs.  See Clark-Flory, supra (quoting Erica Johnstone as stating that “[i]t can cost tens of thousands before even proceeding to judgment.”).  See, e.g., Jacobs, supra (“I couldn’t imagine how much it would cost to bring him into civil court. As a fifth-year graduate student living on student loans, my resources were limited.”).  Even assuming a victim can afford litigation, the results are often fruitless. Suing the website owner will likely fail as Section 230 of the Communications Decency Act protects the owner from liability for photos and videos received from third parties.  Why We Need a Federal Criminal Law Response, supra.  While the victim stands a better chance suing her ex-boyfriend for the distribution of the images, her chances of winning are low and it is unlikely that she will actually recover all her damages as many ex-boyfriends possess insufficient assets.  See Mary Anne Franks, Why Revenge Porn Must Be a Crime, N.Y. Daily News (Feb. 26, 2014), http://www.nydailynews.com/opinion/revenge-porn-crime-article-1.1702725 [hereinafter, Why Revenge Porn Must Be a Crime] (noting that “the chances of success are very low.”); See also Keats Citron & Franks, supra at 349 (remarking on the defendant’s lack of assets).

Finally, even a successful suit and removal of the image fails to fully remedy the harm to the victim.  As Professor Mary Anne Franks notes, “there’s literally nothing to stop the hundreds of other people that have already downloaded or re-posted her image.”  Why Revenge Porn Must Be a Crime, supra.  Thus she and other scholars argue that criminalization is necessary to deter the perpetrator from posting the image at all.  Id.  Absent criminalization, the harm to the victim can potentially continue indefinitely.

 III. The problem with criminal legislation

There are three main arguments against criminalizing revenge porn. First, it is difficult to properly draft a law that is not either over-inclusive or under-inclusive in its scope. Second, revenge porn is protected speech under the First Amendment. And finally, even if criminal statutes were passed, prosecuting would cause more harm than good.

A. The difficulty in drafting the criminal statute

Opponents to legislation point to the ambiguity surrounding what exactly constitutes revenge porn.  Sarah Jeong, Revenge Porn Is Bad.  Criminalizing It Is Worse, Wired (Oct. 28, 2013, 9:30 AM), http://www.wired.com/2013/10/why-criminalizing-revenge-porn-is-a-bad-idea/.  While we may want to penalize the vindictive ex-boyfriend who posted his ex-girlfriend’s private images, we may also inadvertently punish other more innocent conduct, such as potentially convicting “a reporter [for] publishing screencaps of Anthony Weiner’s more infamous tweets.”  Id.  On the other hand, if we narrow the criminal statute too much, we could fail to encompass certain forms of revenge porn, leaving some victims without legal recourse.  Id. (referring to a law that “does not cover selfies sent to the vengeful ex or liability for website operators”).

Proponents have taken this over broad or too narrow concern into consideration in drafting legislation. Professor Mary Anne Franks argues that legislation “[will] not criminalize the dissemination of images voluntarily captured in public or commercial settings” and also “will not . . . criminalize disclosures made for legitimate purposes, such as the reporting of unlawful conduct or matters in the public interest.”  Why Revenge Porn Must Be a Crime, supra.  This ensures that the statute will not be so over broad to include innocent conduct.  She and Professor Danielle Citron also urge that the statute focus on whether the victim consented to distribution of the image, Mary Anne Franks & Danielle Citron, It’s Simple: Criminalize Revenge Porn, or Let Men Punish Women They Don’t Like, The Guardian (Apr. 17, 2014, 11:40 PM), http://www.theguardian.com/commentisfree/2014/apr/17/revenge-porn-must-be-criminalized-laws, which would ensure all victims have legal protection.

B. Potential First Amendment issues  

Drafting criminal legislation is further complicated by First Amendment concerns. Experts have noted that unless revenge porn falls into one of the categories of expression unprotected by the First Amendment, it must withstand strict scrutiny.  See Calvert, supra, at 683 (2014).  If the Supreme Court determines that revenge porn does not meet one of the current categories, the Court is unlikely to create a new category as recent lines of cases indicate.  “[T]he Court seems willing to recognize a new category of unprotected expression only where the speech historically has been unprotected but not yet addressed by the Court . . . Revenge porn, of course, is a new form of expression for which there is no historical lack of protection.”  Id. at 683–84 (referring to a line of cases in which “the Court rejected the invitation to carve out new categories of unprotected expression for . . . depictions of animal cruelty, violent images aimed at children and any and all false statements”).

Proponents believe that revenge porn is a form of speech that would receive lesser protection under First Amendment jurisprudence.  Looking at two Supreme Court cases, one that dealt with the Federal Wire Tapping Act and another regarding the hate speech of the Westboro Baptist Church, the Court indicated a concern that the “fear of public disclosure of private conversations might well have a chilling effect on private speech,” acknowledging that “both sides of the constitutional calculus” could include free speech concerns.  Keats Citron & Franks, supra, at, 378 (quoting Bartnicki v. Vopper., 532 U.S. 514, 518 & 533 (2001)).  In Snyder v. Phelps, the majority noted in dicta that “sexually explicit images exemplify the sort of ‘purely private matters’ that deserve less heightened protection.”  Id. at 381 (quoting Snyder v. Phelps, 131 S. Ct. 1207, 1215–17 (2011)).  As long as the statute is drafted to exclude images or video in which the public has a legitimate interest (such as the Anthony Weiner example, id. at 383), the statute will target merely private matters; and without the statute, “[t]he fear of public disclosure of private intimate communications w[ill] have a ‘chilling effect on private speech.’”  Danielle Citron, Debunking the First Amendment Myths Surround Revenge Porn Laws, Forbes (Apr. 18, 2014, 11:19 AM), http://www.forbes.com/sites/daniellecitron/2014/04/18/debunking-the-first-amendment-myths-surrounding-revenge-porn-laws/.  Based on the Court’s previous rationales, proponents believe the free speech concerns on both ends will likely lean towards less First Amendment protection for revenge porn.

Even if these rationales fail to persuade, proponents believe that revenge porn falls under the unprotected category of obscenity. Keats Citron & Franks, supra, at 384.  In considering the factors to determine whether material falls into this category, Professors Franks and Citron concluded that revenge porn is obscenity as nonconsensual disclosure of sexual images “could qualify as a ‘patently offensive representation’ of sexual conduct. . . . [and] [s]uch material offers no ‘serious literary, artistic, political, or scientific value.’”  Id. at 385.  Therefore a statute criminalizing revenge porn that excludes images and videos of public interest would likely withstand constitutional analysis.

C. Criminalizing revenge porn will be futile

Even if a criminal statute could withstand a constitutional challenge, opponents argue that the statutes will be virtually useless.  Some indicate that these statutes will likely remain unenforced or under-enforced, noting that “[r]ape and sexual assault are already illegal,” yet Montana handed down a 30-day sentence for a rape conviction.  Lux Alptraum, Why Revenge Porn Laws Are a Bad Idea, Boinkology 101 (Aug. 29, 2013),  https://medium.com/boinkology-101/why-revenge-porn-laws-are-a-bad-idea-e073f340cee6 (citing Paul Vercammen & Kyung Lah, Prosecutors Weigh Appeal of 30-Day Rape Sentence in Montana, CNN (Aug. 30, 2013, 8:07 AM), http://www.cnn.com/2013/08/28/justice/montana-teacher-rape-sentence/). In other words, if a judge only gives minimal sentencing to a more physically intrusive sexual crime, how likely will he give any more than a slap on the wrist for a revenge porn violation?  Others express concern that the large number of revenge porn images and videos would take time away from prosecutors to prosecute other more serious crimes.  Calvert, supra, at 700 (quoting attorney Marc Randazza, who noted “Look at UGostPosted.com—there are probably 5,000 women and men on there.  What are they going to do? Open up 5,000 criminal files?”)

Proponents would likely counter these concerns by pointing to the harm to the victims. Because the videos and images include personal identifying information, revenge porn victims suffer substantial personal and psychological harm with around half of the victims considering suicide due to the negative repercussions.  Laws, supra.  If a victim does not harm herself, she could still face injury from the strangers who now know her name and where she lives based off the identifying information provided with her photo.  Keats Citron & Franks, supra, at 350.  Therefore, criminalization is warranted to deter the perpetrators, especially since civil litigation is insufficient alone.  Id. at 361.

IV. Conclusion

Revenge porn is a relatively new phenomenon with devastating effects to its victims.  While the resulting consequences are essentially undisputed, people differ as to the correct approach to redressing the resulting harms. Some believe that civil remedies suffice. However others argue victims are unlikely to actually recover damages, and even if they do, the suit will fail to achieve their ultimate goal of removing the image from the internet.  Thus the only solution is to deter the person from posting the image to begin with, which likely requires criminal penalties.  Some question whether criminalizing is a valid option, noting the difficulty in drafting the statute, whether it can withstand constitutional challenges, and its futility even if it is successfully enacted.  Others contend that a statute can be carefully drafted to withstand constitutional scrutiny, and unless it is enacted, many victims will remain gravely harmed with no legal recourse. These differing opinions will likely continue to impact any future legislation regarding revenge pornography.

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Justine Larsen is a second year law student at The Ohio State University Moritz College of Law.  She has previously interned at the United States District Court for the Southern District in Dayton, Ohio.