Revenge Porn and the First Amendment

By Megan Dorantes

With the digital age came the ability to easily share information with countless viewers, making the Internet a new public platform. As such, speech on the Internet usually falls under protection of the First Amendment, giving every American the right to post whatever they want, unless the material is obscene or a ‘true threat.’

Unfortunately, the Internet fosters a market for revenge pornography. Revenge pornography is when “someone posts nude or sexually explicit photos without the consent of the person depicted”(Desai). This frequently occurring cyber-crime disproportionately targets women, who make up 90 percent of the victims with their harasser being an ex-partner (Desai). Bringing a civil suit against revenge pornography is a struggle for most women, emotionally, financially, and physically.  And, as of 2015, only two states have enacted anti-revenge pornography laws, so there is little a civil suit could actually stand on (Desai). However, the creation and tailoring of laws specifically addressing revenge porn get a lot of pushback.

A major opponent of revenge porn laws is the American Civil Liberties Union (ACLU). Its stance is that First Amendment was created to “protect fair trade of ideas”(Desai), and that revenge porn laws would be prohibiting the sharing of these ideas. This played out in the 2015 case Patel v. Hussain (NO. 14-14-00459-CV), in which Nadia Hussain sued former boyfriend Akhil Patel for posting sexually explicit photos that Hussain had sent him during their relationship. Hussain claimed defamation from the release of her private photos, but the jury found them to be “substantially true,” classifying it as a valid idea to share on the public forum, protected by the First Amendment (Patel v. Hussain NO. 14-14-00459-CV).

Additionally, the First Amendment failed to protect Jennifer Vander Tuig in the 2013 case People v. Rosa (No. F063748). Vander Tuig had sent nude pictures of herself to her husband, Rosa. After the divorce, Rosa posted some of those photos online along with Vander Tuig’s personal contact information, resulting in threats, attacks, and solicitations. Because of the lack of specific laws, the court convicted Rosa on charges unrelated to the First Amendment: stalking, identity theft, and false impersonation (People v. Rosa No. F063748).

California and New Jersey are the only two states with revenge porn laws currently on the books. California’s bill puts emphasis on the point of consent, so victims like Hussain are better protected. In her case, Hussain sued Patel for posting her private, nude photos online, however, Patel claimed the copyright law protected him. The claim held in court because Patel took the pictures of Hussain, giving him ownership, and in turn, the First Amendment right to publish the photos at his will (Patel v. Hussain NO. 14-14-00459-CV). Despite Patel taking some of those videos and pictures unbeknownst by Hussain, copyright laws made her consent for publication unnecessary because she legally couldn’t claim ownership, and therefore control of imagery of her body. California is attempting to combat these rulings by focusing on consent instead of creators, giving the victim more legal ground (Desai).

California’s bill is a productive step in anti-revenge porn legislation, but it still fails to protect the 80 percent of cases that involve self-taken pictures. The law reads that it is a misdemeanor for “any person who photographs/records by any means the image of the intimate body part/parts of another identifiable person” (Desai). The law needs to be expanded to protect “selfies,” pictures the victims took themselves. Otherwise, those victims fail to be protected under the First Amendment. Without protection current law enforces victim-blaming and the idea that the victim should have known that public dissemination is a risk when taking such photos (Desai).

In a continually evolving tech world, digital and cyber crimes are becoming more prominent and should be further acknowledged and integrated into our laws. Tailored anti-revenge porn legislation needs to be provided under the protection of the First Amendment, especially when the crime affects half of the population. The government must deem revenge pornography the type of low-value speech that goes unprotected by law, or maybe even claim that the protection of women is a compelling state interest, allowing revenge porn to be regulated. Either way, the First Amendment must be expanded in order to fully protect victims in our current technological landscape.

Works Cited

Desai, Snehal. “Smile for the Camera: The Revenge Pornography Dilemma, California’s Approach, and Its Constitutionality.” Hastings Constitutional Law Quarterly (2015): n. pag. LexisNexis Academic [LexisNexis]. Web. 14 Apr. 2016.

Patel v Hussain. 14-14-00459. Court of Appeals of Texas, Fourteenth District, Houston. 2016. LexisNexis. Web. 28 March 2016.

People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013), review denied (June 19, 2013).