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Home , Charlotte Laws, Marc Randazza, Mary Anne Franks, Nudity and sexuality, Revenge (season 1), Revenge porn

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REVENGE AND FIRST AMENDMENT EXCEPTIONS Andrew Koppelman* People are marvelously inventive in devising new ways to hurt each other. Some of these new ways involve speech. The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “ pornography”— the online posting of sexually explicit photographs without the subject’s consent, usually by rejected ex-boyfriends. The photos are often accompanied by the victim’s name, address, phone number, page, and other personal information. They are sometimes shared with other websites, viewed by thousands of people, and become the first several pages of hits that a search engine produces for the victim’s name. The photos are emailed to the victim’s family, friends, employers, fellow students, or coworkers. They are seen on the Internet by prospective employers and customers. Victims have been subjected to harassment, stalking, and threats of . Some have been fired from their jobs. Others have been forced to change schools. The pictures sometimes follow them to new jobs and schools. The pictures’ availability can make it difficult to find new employment. Most victims are female.1 Twenty-six states have passed laws prohibiting this practice, and others are considering them.2 (Civil remedies are often available but have not been much

* John Paul Stevens Professor of Law and Professor of Political Science, Department of Philosophy Affiliated Faculty, Northwestern University. Thanks to , John Humbach, Tonja Jacobi, Kenneth Karst, Josh Kleinfeld, Valerie Quinn, Marty Redish, Frederick Schauer, Geoffrey Stone, Deb Tuerkheimer, and students in my seminar on Pornography, Free Speech, and Moral Harm (especially Sylvia Baraniewski, Kaylynn Bradley, Ross Corbett, Peter Mayer, Michael McGivney, Paloma Naderi, Celia Spalding, and Andrew Yerbey) for comments on an earlier draft, to Jason DeSanto, Alon Harel, Heidi Kitrosser, Genevieve Lakier, Laura Pedraza-Fariña, and Jim Speta for helpful conversations, and to Tom Gaylord, Maribel Hilo Nash, and Jamie Sommer for research assistance. 1 See Danielle Keats Citron & Mary Anne Franks, Criminalizing , 49 WAKE FOREST L. REV. 345, 350–54 (2014). 2 State Revenge Porn Laws, C.A. GOLDBERG (Sept. 29, 2015), http://www.cagoldberglaw.com/states- with-revenge-porn-laws/; 26 States Have Revenge Porn Laws, END REVENGE PORN, http://www.endrevengeporn.org/revenge-porn-laws/ (last visited Feb. 1, 2016). The also recently enacted a criminal statute, and there have already been convictions. Liz Hull & Stephanie Linning, KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

662 EMORY LAW JOURNAL [Vol. 65:661 of a deterrent: victims often cannot afford to sue, and perpetrators often have few assets to collect.3) The constitutionality of such laws is uncertain, however. These laws restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest.4 The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden.5 There are exceptions to the ban on content-based restrictions: the Court has held that the First Amendment does not protect incitement, threats, , , defamation of private figures, criminal conspiracies, and criminal solicitation, for example.6 None of those exceptions is applicable here. The pathologies of revenge pornography I have just described are the product of entirely new technologies: digital photography and the Internet. Because it is so new, however, it is not a category of speech that has traditionally been denied First Amendment protection. The Court has recently announced that unless speech falls into such a category, it is fully protected. There can be no new categories of unprotected speech. Laws prohibiting revenge pornography thus violate the First Amendment as the Court now understands it. The crux of the problem is the Court’s announced unwillingness to create new categories of non-protection.

Thug Becomes the First Person in Britain Jailed for ‘Revenge Porn’ After Posting Intimate Picture of His Ex-girlfriend on WhatsApp, DAILY MAIL (Nov. 14, 2014, 6:58 AM), http://www.dailymail.co.uk/news/article- 2834509/Thug-person-Britain-jailed-revenge-porn-posting-intimate-picture-ex-girlfriend-WhatsApp.html; Oliver Wheaton, ‘Vindictive’ Boyfriend Avoids Jail for Posting Revenge Porn of Ex-girlfriend, METRO (Dec. 4, 2014, 4:01 PM), http://metro.co.uk/2014/12/04/vindictive-boyfriend-avoids-jail-for-posting-revenge-porn- of-ex-girlfriend-4974272/. 3 DANIELLE KEATS CITRON, HATE CRIMES IN CYBERSPACE 121–23 (2014); Citron & Franks, supra note 1, at 349. 4 See infra text accompanying notes 11–14. 5 See infra text accompanying notes 24–51. 6 See DANIEL A. FARBER, THE FIRST AMENDMENT 57–146 (3d ed. 2010). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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That unwillingness is not a necessary inference from the First Amendment. The present exceptions to free speech protection are judge-made doctrines. The courts that made them are by the same authority free to construct additional exceptions. Those exceptions would be justified by whatever justified the exceptions already on the books. Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class of people who are chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse. Part I of this Article examines the constitutional objections to a statute that bans revenge pornography, and argues that those objections, although they are firmly rooted in the doctrines laid down by the Supreme Court, rest on an indefensibly wooden vision of free speech. Part II argues that this vision rests on an impoverished understanding of liberalism, which does not merely aim at constraint on government but which affirmatively seeks a society whose citizens have certain desirable traits of character, notably the courage to participate in public discourse. I develop this claim with a close reading of John Stuart Mill’s On Liberty. Part III argues that revenge pornography has a silencing effect on its victims that directly attacks the Millian ideal. Part IV argues that the creation of free speech exceptions cannot persuasively be ruled out in the way the Court has done, but are a normal part of judicial construction of the First Amendment’s text. The Conclusion reflects on the mechanical character of the free speech rules that the Court has constructed.

I. THE NEW FREE SPEECH JURISPRUDENCE

A. Present Doctrine Bars a Remedy As already noted, there are laws against revenge pornography on the books in twenty-six states, and more will probably be enacted.7 Although some of

7 See supra note 2. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

664 EMORY LAW JOURNAL [Vol. 65:661 these are clumsily drawn,8 it is possible for a law to target revenge pornography with precision. has proposed this: An actor commits criminal invasion of privacy if the actor harms another person by knowingly disclosing an image of another person whose intimate parts are exposed or who is engaged in a sexual act, when the actor knows that the other person did not consent to the disclosure and when the actor knows that the other person expected that the image would be kept private, under circumstances where the other person had a reasonable expectation that the image would be kept private.9 The statute further specifies the terms it uses, so that, for example, “intimate parts” is defined as “the naked genitals, pubic area, anus, or female adult nipple.”10 This gives the statute specificity.

8 See First Amendment Lawsuit Challenges Arizona Banning Images, ACLU (Sept. 23, 2014), https://www.aclu.org/free-speech/first-amendment-lawsuit-challenges-arizona-criminal-law- banning-nude-images; Ken Paulson, Opinion, Beware Revenge Porn Laws, USA TODAY (Oct. 29, 2014, 8:59 PM), http://www.usatoday.com/story/opinion/2014/10/29/beware-revenge-porn-laws-first-amendment-free- speech-column/18149265/. 9 CITRON, supra note 3, at 152. The first proposal for a statutory ban was by Mary Anne Franks, who proposed to focus not on the subject’s reasonable , but on the absence of consent. See Mary Anne 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 (prohibiting the disclosure of “a sexually graphic visual depiction of an individual without that individual’s consent”); Mary Anne Franks, Drafting an Effective “Revenge Porn” Law: A Guide for Legislators 9 (Aug. 17, 2015) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm? abstract_id=2468823 (prohibiting disclosure “when the actor knows that or consciously disregarded a substantial and unjustified risk that the depicted person has not consented to such disclosure”). Franks’s views on the drafting question have shifted over time, and at one point she considered language like Citron’s. See Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper 12 (Oct. 7, 2013) (unpublished manuscript), http://www.endrevengeporn.org/main_2013/wp-content/uploads/2013/10/Franks- NCP-Working-Paper-10.7.pdf (“Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime.”). I worry that Franks’s statute may be overbroad. There are many situations in which it is reasonable to disseminate a nude photograph even though the disseminator knows that the depicted person has not consented to the disclosure. The person may have originally disclosed the photograph with the expectation that it be public and available for reposting, as when one posts a nude photo of oneself onto a publicly accessible website. The person may have had no reasonable expectation that the image would be kept private. The person may not know of the dissemination. The photo may be newsworthy, like the Abu Ghraib photos. The person may have died before the photo was distributed: some nude photos are more than a century old. There are likewise reasonable objections to Citron’s language, which has problems of vagueness (which is what draws Franks to the language of consent), but I bracket them here. The conversation about appropriate drafting is a continuing one and this Article does not attempt to resolve it. 10 CITRON, supra note 3, at 152. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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It is unlikely that this law would restrict any valuable speech. It is, however, a content-based restriction on speech. Such restrictions, the Court has declared, are presumptively unconstitutional. In Reed v. Gilbert, the Court made preexisting doctrine more rigid by categorically declaring that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”11 This implies a presumption of invalidity: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”12 This works a revolution in free speech law, calling into question a huge range of government regulations, such as almost all of securities law. “The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation,” Judge Frank Easterbrook observes. “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”13 If a law is unconstitutional if its restrictions “depend entirely on the communicative content”14 of what is regulated, then any restriction of revenge pornography is in deep trouble. The First Amendment’s protection of free speech does not apply to “low-value” categories of speech, such as threats and incitement.15 These categories are exceptions to the otherwise strong protection of speech. This much is familiar doctrine. In v. Stevens, in which the Court invalidated a law criminalizing depictions of the illegal killing of animals, Chief Justice Roberts announced that there would henceforth be no new categories of unprotected speech: The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions

11 135 S. Ct. 2218, 2227 (2015). 12 Id. at 2228 (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). 13 Norton v. City of Springfield, No. 13-3581, 2015 WL 4714073, at *2 (7th Cir. Aug. 7, 2015). 14 Reed, 135 S. Ct. at 2227. 15 See Avis Rent A Car System, Inc. v. Aguilar, 529 U.S. 1138, 1141 (2000) (Thomas, J., dissenting) (using term); FARBER, supra note 6, at 57–146. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”16 Every established exception to free speech protection, Chief Justice Roberts declared, is based upon “a previously recognized, long-established category of unprotected speech.”17 Before speech can be regulated, the state must show a “long-settled tradition of subjecting that speech to regulation.”18 There is no tradition of regulating dogfighting videos, so the Court invalidated a law that criminalized them.19 All this is bad news for laws against revenge pornography, even ones as skillfully drawn as Citron’s. Like the statute in Stevens, a prohibition of revenge pornography is “presumptively invalid” because it “explicitly regulates expression based on content.”20 No established exception is likely to be helpful here. Geoffrey Stone observes that there is “no long-standing tradition of regulating the publication of non-newsworthy private information.”21 The Court has never addressed the constitutionality of the of disclosure of private facts. Even if the tort is permissible—it has been around for a long time22—Citron’s statute is different because it specifies the content of the speech that is restricted. Moreover, the forbidden content is truthful information, a record of what did in fact occur. Exposure of that information often leads to unfair treatment of the person photographed. That is, after all, what the person who distributes the photograph is hoping to accomplish. But “the ‘fear that people would make

16 United States v. Stevens, 559 U.S. 460, 470 (2010) (quoting Marbury v. Madison, 1 Cranch 137, 178 (1803)). 17 Id. at 471. 18 Id. at 469–72. 19 Id. at 482. The Court relied on the same logic (and cited Stevens) in invalidating a ban on sale of violent video games to minors in Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2732, 2734, 2742 (2011). 20 Stevens, 559 U.S. at 468. 21 Geoffrey R. Stone, Privacy, the First Amendment, and the Internet, in THE OFFENSIVE INTERNET: PRIVACY, SPEECH, AND REPUTATION 174, 183 (Saul Levmore & Martha C. Nussbaum eds., 2010). 22 See Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 DUKE L.J. 967, 970–72 (2003). The Stevens Court declared, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. . . . We need not foreclose the future recognition of such additional categories.” 559 U.S. at 472. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 667 bad decisions if given truthful information’ cannot justify content-based burdens on speech.”23 It is even arguable that the proposed statutes are prior restraints on speech, which are very heavily disfavored, because they require the distributor to obtain the consent of the person who was photographed. John Humbach observes that “a law that grants private individuals the absolute discretion, utterly unconstrained by the democratic process, to totally block dissemination of disfavored speech creates a system of censorship that would seem to be even more questionable than one controlled by public officials.”24 The deep problem is viewpoint discrimination. With the animal cruelty statute at issue in Stevens, the United States noted in its reply brief, Congress “was concerned about the harms these depictions would cause even if they had no viewers at all—the harm to living animals occurring in the creation of the depictions, as well as associated harms arising from these acts of violence.”25 The harm of revenge pornography, on the other hand, occurs only when the material is made available for viewers. Even worse, it is a harm primarily because some people believe that the display of one’s naked body to a camera is shameful. Not everyone has that view. Another recent Court decision suggests that the state has no power to remedy harms caused by speech, if the harm consists in the communication of a viewpoint that the law deems repellent. In Snyder v. Phelps, the Court ruled that the First Amendment protected the picketing, with signs such as “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” and “God Hates You,” of the funeral of a soldier who had been killed in Iraq.26 The Court relied on a well-established principle: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”27 In this case,

23 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2670–71 (2011) (quoting Thompson v. W. States Med. Ctr., 535 U.S. 357, 374 (2002)); see also id. at 2671 (“The choice ‘between the dangers of suppressing information, and the dangers of its misuse if it is freely available’ is one that ‘the First Amendment makes for us.’” (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976))). 24 John A. Humbach, How to Write a Constitutional “Revenge Porn” Law, 35 PACE L. REV. 215, 248 (2014). 25 Reply Brief for the United States at 3, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2564714, at *3. 26 131 S. Ct. 1207, 1214 (2011). 27 Id. at 1219 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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[A]ny distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability.28 The tort of intentional infliction of emotional distress, the Court explained, must be subject to First Amendment constraints. A jury is “unlikely to be neutral with respect to the content of [the] speech.”29 The speech in question was “certainly hurtful,” but it must be protected “to ensure that we do not stifle public debate.”30 The Court’s opinion is ambiguous on a crucial point. Was it confessing its inability to craft a standard that would be confined to the context of funerals? The implication seems rather to be that even if such a standard could be devised (and several were proposed),31 it would be improperly viewpoint-discriminatory to apply it. Justice Alito, dissenting, emphasized the “acute emotional vulnerability” of the mourners.32 The trouble is that this vulnerability is itself viewpoint-based. Justice Elena Kagan observed in an early law review article that a law that aims to prevent harm is nonetheless impermissibly viewpoint-based when “it is speech of a certain viewpoint, and only of that viewpoint, which causes the alleged injury.”33 The protestors’ speech is hurtful only to those who disagree with their viewpoint—one according to which the death of soldiers in Iraq is a happy manifestation of divine justice.

28 Id. 29 Id. (citing Bose Corp. v. Consumers Union, 466 U.S. 485, 510 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))). 30 Id. at 1220. 31 One could say, for example, that funerals are unique events for free speech purposes, protected despite their public character. See Brief Amicus Curiae of the Center for Constitutional Jurisprudence in Support of Neither Party Suggesting Reversal at 4, Snyder, 131 S. Ct. 1207 (No. 09-751), 2010 WL 2185135, at *4. (That is of course in tension with the reasoning of Stevens, then very recently decided, which the amicus did not cite.) Or one could say that it involves “a privacy right similar to individuals in their homes.” Phelps-Roper v. Strickland, 539 F.3d 356, 364–65 (6th Cir. 2008). 32 Snyder, 131 S. Ct. at 1222 (Alito, J., dissenting). 33 Elena Kagan, Regulation of Hate Speech and Pornography After R.A.V., 60 U. CHI. L. REV. 873, 879 (1993). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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The Court mentioned repeatedly that the grieving father “could see no more than the tops of the signs,”34 but this reflects a failure to think through the logic of its position. How can this be relevant? The Court’s reasoning leaves no room for a different result if the signs were in plain sight, so long as the protest “did not itself disrupt that funeral.”35 Absent such interference, did the protesters have a First Amendment right to communicate with the mourners during the funeral? Can the law even cognize the fact that the specific intent of that communication was to inflict pain upon the mourners? What would be the fate of a law that required protesters to be far enough away to be entirely invisible to the funeral party?36 Such a law obviously rests on the viewpoint-based premise that death is not a matter for celebration, and that one may legitimately exclude from funerals the viewpoint that the deceased deserved his end.37 If viewpoint discrimination is absolutely forbidden, then certain kinds of calculated injury to innocents is protected. Restrictions on communication with mourners are enacted solely to protect them from specific viewpoints with which the law disagrees. It is only those viewpoints that cause the injury. A law is content-discriminatory if what it seeks to prevent is “[t]he emotive impact of speech on its audience.”38 Even a general prohibition of demonstrations near funerals is covert viewpoint discrimination, because these specific communications are its avowed target. “[T]he point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”39 The “in someone’s eyes” phrase suggests that any restriction of speech because of its hurtful character partakes of the “inherent subjectiveness” that troubled the

34 Snyder, 131 S. Ct. at 1220 (majority opinion); see also id. at 1213–14, 1218; id. at 1221 (Breyer, J., concurring). 35 Id. at 1220 (majority opinion). 36 The Court expressed no view about the constitutionality of the laws of forty-four states and the federal government imposing restraints on funeral picketing, but its reasoning throws these into doubt. See id. at 1218; see also McCullen v. Coakley, 134 S. Ct. 2518, 2537 (2014) (invalidating as excessively large a thirty-five-foot buffer zone around abortion clinics). 37 The analogy with the home, for purposes of determining whether there is a captive audience, presents a similar problem. One can protect the seclusion of the home without regard to viewpoint, but signs in the vicinity of a funeral are of concern only because of their content. For the same reason, such a restriction is not purely one of time, place, and manner, because their obvious purpose is to block communication of a specific unwelcome viewpoint. 38 Boos v. Barry, 485 U.S. 312, 321 (1988). 39 Snyder, 131 S. Ct. at 1219 (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 574 (1995) (ellipses in original)). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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Court about the legal standard of “outrageousness.”40 In fact, human experience is less various, and judgment less subjective, than the Court imagines here: we can confidently predict the emotions felt by parents when they bury their children.41 The logic of Snyder condemns any law that specifically targets revenge pornography. Revenge pornography, too, is hurtful only “in someone’s eyes.” It consists of truthful information—a (typically) undoctored photograph—that conveys a message that some people—possibly the women depicted, and certainly some who see the photos—find insulting and discrediting. A law that specifically prohibits revenge pornography aims at the suppression of that message. The person who disseminates the photographs wants to persuade his audience that this woman is a contemptible, worthless slut. The photograph is offered as evidence to support the claim. Evidently many people are persuaded, at least to the extent of firing or refusing to employ her. The harm that the law aims to prohibit consists precisely in the audience’s adoption of the speaker’s viewpoint. Free speech law’s suspicion of this kind of viewpoint discrimination is appropriate. David Strauss has argued that one principle that underlies the Court’s free speech decisions is the principle that government may not “restrict speech on the ground that the speech will persuade people to adopt attitudes that the government considers undesirable.”42 When government violates this “persuasion principle,” “it is engaged in a form of thought control.”43 Strauss’s principle is directly implicated here. A prohibition of revenge pornography is “deliberately denying information to people for the purpose of influencing their behavior.”44 It is therefore improperly manipulative, “a form of attempting to control the audience’s mental processes.”45 The objection from the persuasion principle is powerful. A restriction on revenge pornography aims to manipulate the public. If a woman’s employer, say, were aware of the existence of this photograph, he would fire her. The law

40 Id. 41 My analysis of Snyder is indebted at many points to Steven J. Heyman, To Drink the Cup of Fury: Funeral Picketing, Public Discourse, and the First Amendment, 45 CONN. L. REV. 101 (2012). 42 David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 340 (1991). 43 Id. at 360. 44 Id. at 355. 45 Id. at 356. This is not to say that Strauss is necessarily committed to invalidating a revenge pornography law. He also argues that his principle can legitimately be violated in order to prevent serious harms—harms so severe that preventing them would justify manipulative lying. Id. at 360–61. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 671 withholds this information in order to prevent him from forming a mental state that he would otherwise form.46 This is the deepest reason why a revenge pornography statute raises serious free speech issues. There is, and should be, a presumption that such a statute is unconstitutional. Free speech law goes wrong when it declares that the presumption cannot be overcome. Can the statute be rescued by the obvious fact that publication of these photos invades the privacy of their subjects? The Court has declared several times, albeit in dicta, that the interest in privacy may justify regulation of communications that do not involve matters of public concern, such as the conduct of public officials.47 On this basis, some lower courts have upheld claims for nonconsensual publication of sex videos.48 But the Court has never said that this interest can justify a law that discriminates on the basis of content.49 A law that does that is subject to strict scrutiny, and if the interest in Snyder was not sufficient to withstand such scrutiny—and it was not, precisely because it was viewpoint-based—then the same result is likely in this context.50

46 Another purpose of the law is to prevent the embarrassment of having one’s nude photo seen without one’s consent. This unwanted exposure would be reprehensible even without the collateral consequences I have been describing. Control over one’s public presentation is an indispensable element of liberty. See THOMAS NAGEL, Concealment and Exposure, in CONCEALMENT AND EXPOSURE AND OTHER ESSAYS 3, 4 (2002). It is already protected by the statutes that many states have on the books. See NAT’L CTR. FOR PROSECUTION OF CHILD ABUSE, VOYEURISM STATUTES 2009 (Mar. 2009), http://www.ndaa.org/pdf/ voyeurism_statutes_mar_09.pdf. But this harm alone would probably not be enough to trigger the wave of criminal statutes that are now being enacted. Everyone understands that the law aims to prevent other, more severe harms. 47 See CITRON, supra note 3, at 207–12 (citing Snyder v. Phelps, 131 S. Ct. 1207 (2011)); see also Bartnicki v. Vopper, 532 U.S. 514 (2001); Smith v. Daily Mail, 443 U.S. 97 (1979); Humbach, supra note 24, at 17 nn.115–16 (collecting cases). 48 CITRON, supra note 3, at 209–10. 49 Humbach, supra note 24, at 240. The of invasion of privacy, disclosure of private facts, or intentional infliction of emotional distress do not facially classify on the basis of content. The Court similarly held that laws against wiretapping, whose “basic purpose . . . is to ‘protect the privacy of . . . communications,’” do not discriminate on the basis of content. Bartnicki, 532 U.S. at 526. For this reason, Humbach thinks that the only constitutionally permissible revenge pornography law would be a general criminalization of intentional infliction of extreme emotional distress. Humbach, supra note 24, at 252. That remedy would be massively overbroad and would give no notice that revenge pornography is specifically prohibited, but Humbach may be correct that it is the best one can do given current free speech doctrine. 50 Another possible rejoinder is that some laws that restrict the communication of truthful but private information are not even salient for free speech purposes, for example laws protecting the confidentiality of medical records. The protection of those records, however, is entirely derivative from the fiduciary duties of health care providers, and only such providers have such obligations. See Colleen K. Sanson, Cause of Action Against Physician or Other Health Care Practitioner for Wrongful Disclosure of Confidential Patient Information, 36 CAUSES OF ACTION 2D 299, § 8 (2008); Covered Entites and Business Associates, U.S. DEP’T KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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Viewpoint-neutrality is an indispensable premise of free speech. If the First Amendment is to guarantee “freedom for the thought that we hate,” then an artificial framework must be constructed in which our hatred has no weight. An alleged harm that is parasitic on viewpoint, that is harmful only “in someone’s eyes,” is not cognizable as a justification for restricting speech. These core free speech principles bar a specific, content-based prohibition of revenge pornography—unless revenge pornography is an unprotected category of speech. Citron’s statute is skillfully drafted to reach only a narrowly defined subset of speech. It is narrowly tailored, and the interest in question is arguably compelling. (The Court has never established a criterion for determining what is a compelling interest.) But if that interest is viewpoint-based, it cannot be compelling. It is not even permissible.

B. A Mechanical Doctrine None of this, however, is necessarily a criticism of the rejection of new unprotected speech categories in Stevens. I have merely been working out its implications. If this is indeed what the First Amendment means, then that is the law, like it or not. But this is not and cannot be what the First Amendment means. At the threshold, the Court’s claim that—absent narrow exceptions— content-based restrictions are impermissible is manifestly false. Law is full of content-based restrictions on speech that are, not so much exceptions to the

OF HEALTH & HUMAN SERVS., http://www.hhs.gov/hipaa/for-professionals/covered-entities/index.html (last visited Jan. 10, 2016). Such laws impose no significant free speech burden because medical records are no part of any discourse generally recognized as legitimate. The law preserves a settled practice of excluding them from public discourse. Photos of nude people, on the other hand, are ubiquitous, and any legal presumption that they are always private would be massively overbroad. One study found that 49% of people use their cell phones to send or receive sexual content via pictures or text messages. Sext Much? If So, You’re Not Alone, SCI. AM. (Feb. 4, 2014), http://www.scientificamerican.com/article/sext-much-if-so-youre-not-alone/. Among eighteen- to twenty-four-year-olds, the figure is 70%. Study Reveals Majority of Adults Share Intimate Details Via Unsecured Digital Devices, INTEL SECURITY (Feb. 4, 2014), http://www.mcafee.com/us/about/news/2014/q1/ 20140204-01.aspx. In 2012, 15% of adult cell users said they had received a sexual image of someone they knew, 6% had sent such an image, and 3% had forwarded a sexually suggestive nude or nearly nude photo or video of someone that they knew. Aaron Smith, The Best (and Worst) of Mobile Connectivity, Part V: Cell Phone Usage, PEW RES. CTR. (Nov. 30, 2012), http://www.pewinternet.org/2012/11/30/part-v-cell-phone- usage/. (The “reasonable expectation” of privacy language in the model statute excludes most of this activity from its reach.) Thanks to Kaylynn Bradley and Mary Anne Franks for raising this analogy, and to Peter Mayer for these citations. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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First Amendment, but areas in which the Amendment is not even salient. No free speech issue is raised by prohibitions of perjury, price-fixing, screaming in the gallery of Congress, and many other things that can be done with language.51 Contract law consists almost entirely of visiting unwanted consequences on persons because of words that they have said. If we are to discern the boundaries of the free speech principle, we must explain why these are excluded.52 Until recently, one of those areas of nonsalience was law. Like contract law, copyright has not been an exception to free speech protection so much as an area in which the First Amendment is not even relevant.53 Copyright is relevant to the revenge pornography question because, if the photograph in question is one that the victim took of herself, then she owns the rights to the picture and can force websites to take it down.54 If her ex-boyfriend took the photo, on the other hand, this recourse is unavailable. The law mandates dramatically different treatment of images that are functionally identical, for reasons that have nothing to do either with the purposes of free speech or the harm in question.55 This pattern is the product of pure path dependency.

51 Hostile environment , which often consists of slurs and epithets, has not been deemed by the Court to raise any free speech issue. Frederick Schauer, The Speech-ing of Sexual Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW 347, 360 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn’t Bark, 1994 SUP. CT. REV. 1, 1. This is unlikely to change even after Reed v. Town of Gilbert. See supra text and discussion accompanying notes 11–14. “Robert Post, the dean of Yale Law School and an authority on free speech, said the [Reed] decision was so bold and so sweeping that the Supreme Court could not have thought through its consequences.” Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences, N.Y. TIMES: SIDEBAR (Aug. 17, 2015), http://www.nytimes.com/2015/08/18/us/politics/courts- free-speech-expansion-has-far-reaching-consequences.html. On the ambiguities of free speech law in the context of hostile environment harassment, see Andrew Koppelman, A Free Speech Solution to the Gay Rights/Religious Liberty Conflict, 110 NW. U. L. REV. (forthcoming 2016). 52 See generally Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765 (2004). 53 See NEIL WEINSTOCK NETANEL, COPYRIGHT’S PARADOX 35 (2008); Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 YALE L.J. 1, 3 (2002). The Court’s most recent decisions give it some weight, but still allow a degree of content-based regulation that would be unconstitutional outside the context of copyright. Neil Weinstock Netanel, First Amendment Constraints on Copyright After Golan v. Holder, 60 UCLA L. REV. 1082, 1084–85 (2013). 54 See Amanda Levendowski, Our Best Weapon Against Revenge Porn: Copyright Law?, ATLANTIC (Feb. 4, 2014), http://www.theatlantic.com/technology/archive/2014/02/our-best-weapon-against-revenge- porn-copyright-law/283564/. But see Jeff John Roberts, No, Copyright Is Not the Answer to Revenge Porn, GIGAOM (Feb. 6, 2014, 7:24 AM), https://gigaom.com/2014/02/06/no-copyright-is-not-the-answer-to-revenge- porn/. 55 This problem could be partly remedied by a federal revenge pornography law that included, as one of the sanctions for a proven violation, the transfer of copyright from the convicted photographer to the victim. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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A similar path dependency is strikingly evident in the exceptions that the Court recognizes. Stevens involved a statute criminalizing the creation, sale, or possession of certain depictions of animal cruelty.56 The law aimed to suppress videos of dogfighting and cockfighting, the sale of which helps to finance those already illegal activities, and “crush videos”—films that depict the intentional torture and killing of helpless animals, and are sold to persons who find such images sexually exciting.57 The law was so broadly worded that it prohibited films of and bullfighting, and documentaries designed to document the mistreatment of animals.58 But the Court should not have foreclosed the possibility of a more narrowly crafted statute. Congress responded to the Court, but in a pretty arbitrary way. The arbitrariness was demanded by the restrictions that the Court laid down. The revised statute prohibits animal cruelty that is obscene59—appealing to the prurient interest. Since material can be pornographic even when it only appeals to very specialized tastes, absolutely anything can be “obscene” as long it is sexually appealing to someone.60 Since the audience for crush videos is sexually inflected, the revised statute evidently passes muster.61 A nonsexual taste for cruelty, on the other hand, is excluded from consideration. That taste exists, and works exist that cater to it, but they are evidently beyond the reach of the law. The revised statute cannot reach the dogfighting videos that Stevens distributed.62

That remedy is, however, possible only if a revenge pornography prohibition does not violate the First Amendment. 56 United States v. Stevens, 559 U.S. 460, 464–65 (2010). 57 Id. at 465–66. 58 Id. at 477–82. 59 18 U.S.C. § 48 (2012). 60 Joel Feinberg observed that, since a work can be obscene if it appeals to the prurient interest of any small specialized audience (one with unusual paraphilias, for example), “if there are seventeen people in the entire United States who achieve their sexual gratification primarily by fondling stones, then a magazine aimed directly at them which publishes lurid color photographs of rocks and pebbles would be obscene.” JOEL FEINBERG, OFFENSE TO OTHERS: THE MORAL LIMITS OF THE CRIMINAL LAW 181 (1985). Feinberg observes that such a magazine would be rescued by the requirement that obscene publications be “offensive.” Id. Animal torture videos, on the other hand, are offensive, but for reasons that have nothing to do with sex. 61 See United States v. Richards, 755 F.3d 269, 279 (5th Cir. 2014) (upholding revised statute on this basis). 62 Another problem with reliance upon the category of “obscenity” is that the entire category is based on assumptions that are now demonstrably preposterous, notably the notion that masturbation destroys a young person’s health. See HELEN LEFKOWITZ HOROWITZ, REREADING SEX: BATTLES OVER SEXUAL KNOWLEDGE AND SUPPRESSION IN NINETEENTH-CENTURY AMERICA 92–93, 97–107, 394–403 (2002); WALTER KENDRICK, THE SECRET MUSEUM: PORNOGRAPHY IN MODERN CULTURE 138–43 (1987). The best general history of the KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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An even more fundamental problem is that, as Genevieve Lakier has shown, Stevens misrepresents the history of speech regulation in the United States. The idea of categories of low-value speech is an invention of the Court that has been developed since the 1940s. The history the Court deems dispositive is a history that does not exist.63 The decision about what kind of speech is unprotected, embodied in present doctrine, cannot be attributed to “a judgment by the American people.” At the time of the First Amendment’s enactment, there was remarkably little reflection about what it would mean in practice.64 That task has been left to judges.65 Modern free speech law is a product of common-law development, not of text.66

masturbation panic, which began in the early 1700s and survives in attenuated form today, is THOMAS W. LAQUEUR, SOLITARY SEX: A CULTURAL HISTORY OF MASTURBATION (2003). There is a legitimate continuing concern about moral harm, but it is not intelligibly confined to sexual material. See Andrew Koppelman, Does Obscenity Cause Moral Harm?, 105 COLUM. L. REV. 1635, 1636 (2005) [hereinafter Koppelman, Does Obscenity Cause Moral Harm?]; Andrew Koppelman, Eros, Civilization, and Harry Clor, 31 N.Y.U. REV. L. & SOC. CHANGE 855, 857 (2007). The immunity of dogfighting videos is a striking illustration. 63 See generally Genevieve Lakier, The Invention of Low-Value Speech, 128 HARV. L. REV. 2166 (2015) (arguing history has never been the basis for determining when the First Amendment protections apply). 64 See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 191 (1985). 65 The idea that a constitutional provision incorporates traditional exceptions is not original with the Stevens Court. It was laid down in 1897 in Robertson v. Baldwin, 165 U.S. 275 (1897), in which a divided Court upheld against a Thirteenth Amendment challenge a statute authorizing the forcible return of deserting seamen to their vessels. Justice Brown, writing for the Court, explained that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Id. at 281. This reading of constitutional rights was cited by the Court as a reliable guide to the interpretation of the First Amendment in Dennis v. United States, 341 U.S. 494, 524 (1951) (Frankfurter, J., concurring in affirmance); see also id. at 534; id. at 571 (Jackson, J., concurring in the judgment) (quoting Frohwerk v. United States, 249 U.S. 204, 206 (1919)). But Dennis has since been discredited. See THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 112–21 (1970); HARRY KALVEN, JR., A WORTHY TRADITION: IN AMERICA 190–210 (Jamie Kalven ed., 1988); MARTIN H. REDISH, THE LOGIC OF PERSECUTION: FREE EXPRESSION AND THE MCCARTHY ERA 80–106 (2005). And so has Robertson. See Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. REV. 480, 523–26 (1990). The notion of “services which have from time immemorial been treated as exceptional” has generally been neglected by the Supreme Court and has not been much relied on by the lower courts, probably because it simply makes no sense; how can there be an exception that antedates the rule? Justice Harlan, dissenting in Robertson, observed that the reliance on established usage was misplaced, since “the clear reading of a constitutional provision relating to the liberty of man [was] departed from in deference to what is called usage which has existed, for the most part, under monarchical and despotic governments.” Robertson, 165 U.S. at 302. Here, as in another, better known Civil War Amendments case, Harlan’s lone dissent seems to KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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A better account of First Amendment exceptions has been offered by Elena Kagan, in an article written before she became a Justice. Kagan observed that the nonprotection of some kinds of speech represents a contestable value judgment, and may even involve viewpoint discrimination.67 The category of unprotected obscenity, for example, restricts “a single (disfavored) viewpoint about sexual matters,” and “invokes community standards of offensiveness.”68 The viewpoint discrimination rests on the view that “only the restricted ideas cause great harm and have sparse value.”69 Nonetheless, “partly because of the long-established nature of the category, such regulation may give rise to fewer concerns of compromising First Amendment principles.”70 Slippery slope and chilling effect arguments are predictive. If the prediction has been falsified by experience, then these concerns are ameliorated. “A long tradition of regulating a particular category of low value speech,” a law professors’ brief in Stevens observed, “creates a historical understanding of the contours and definition of the category and demonstrates from experience that the category can be regulated without doing undue damage to the First Amendment.”71 The Stevens Court cited “historic and traditional categories long familiar to the bar,”72 but it took the existence of these as evidence for its bogus historical narrative when it is really just an aid to judicial construction. have prevailed over Brown’s majority opinion. See Plessy v. Ferguson, 163 U.S. 537, 537–52 (1896); id. 552– 64 (Harlan, J., dissenting). Yet Robertson’s reasoning continues to shape the First Amendment. The principal difference between the cases is that in Robertson the history was not fake. 66 See DAVID A. STRAUSS, THE LIVING CONSTITUTION 51–76 (2010). 67 See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 473 (1996). 68 Id. at 473 n.166. 69 Kagan, supra note 33, at 899. 70 Id. at 897. Kagan, as Solicitor General, proposed the balancing test that was rejected by the Court in Stevens. The difference between Kagan’s article and her position in her brief for the United States is that in the latter, she did not even concede a strong presumption against new categories. Instead, she declared that speech can be regulated on the basis of its content whenever “the First Amendment value of the speech is ‘clearly outweighed’ by its societal costs.” Brief for the United States at 12, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769), 2009 WL 1615365, at *12 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). The explanation of the difference could be the breadth of the statute she was obligated to defend. The law was so loosely worded that it prohibited films of hunting and bullfighting, and documentaries designed to document the mistreatment of animals. Stevens, 559 U.S. at 477–82. She may have judged that only a broad balancing test could sustain that statute. In Reed v. Gilbert, she endorsed a milder proposition: “We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function.” 135 S. Ct. at 2238 (Kagan, J., concurring in the judgment). 71 Brief of Constitutional Law Scholars Bruce Ackerman et al. as Amici Curiae in Support of Respondent at 5–6, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2331222, at *5–6. 72 Stevens, 559 U.S. at 468 (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring)). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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It is puzzling why Chief Justice Roberts declared the shape of the law fixed for all time and then attributed that decision to the Framers. None of the briefs, not even the ones that directly attacked the government’s proposed balancing test,73 proposed anything as wooden and ahistorical as that. The Stevens Court was wrong to disclaim “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”74 The Court has always had, and has often exercised, that authority. The question is how it ought to exercise it.

II. FREE SPEECH RECONSIDERED

A. Misrepresenting Liberalism The concepts of viewpoint discrimination and low-value speech are judicial constructs. The Court crafted them in an effort to implement the vague command of the First Amendment. It would be ridiculous to protect everything that is done with words, so it is necessary to draw lines.75 If courts did it in the past, there is no reason why they cannot do it now. So how should a court proceed? How should it respond to a proposal to add a new category of unprotected speech? To answer that question, we need to begin with the salience question. We need to know why we are protecting speech at all. That will inform us which speech we should especially concern ourselves with. And that in turn will inform us which exceptions we can allow. Modern free speech theory is dominated, in the courts and the academy alike, by a style of reasoning that posits a few axiomatic purposes of speech— “It is the purpose of the First Amendment to preserve an uninhibited

73 In addition to the Brief of Constitutional Law Scholars, see Brief of Amici Curiae Association of American Publishers, Inc. et al. at 11, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2331225, at *11; Brief for the Cato Institute as Amicus Curiae in Support of Respondent at 16–28, Stevens, 559 U.S. 460 (No. 08- 769), 2009 WL 2331221, at *16–28; Brief of the DKT Liberty Project, The American Civil Liberties Union, and The Center for Democracy and Technology, as Amici Curiae in Support of Respondent at 4–13, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2247129, at *4–13; Brief of First Amendment Lawyers Association as Amicus Curiae in Support of Respondent at 9–10, 15–18, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2331224, at *9–10, *15–18; Brief Amici Curiae of The Reporters Committee for Freedom of the Press and Thirteen News Media Organizations in Support of Respondent at 20–22, Stevens, 559 U.S. 460 (No. 08-769), 2009 WL 2219305, at *20–22. 74 Stevens, 559 U.S. at 472. 75 See generally RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

678 EMORY LAW JOURNAL [Vol. 65:661 marketplace of ideas in which truth will ultimately prevail.”76 “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”77 “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it”78—from these axioms one deduces detailed rules of law, and deems irrelevant any consequences that were not taken account of in that deduction. These slogans mask many difficulties.79 Pertinently here, they exclude ideals from consideration. Ideals are central to the free speech tradition. Liberalism sometimes presents itself as what Brian Barry called a “want-regarding” theory, which tries to satisfy people’s wants and goals, whatever they are.80 This is contrasted with “ideal-regarding theories,” which aim to achieve human excellence whether or not people subjectively happen to want it. Some liberal theorists reject any reliance on ideal-regarding theory.81 A free society, so goes the story, has no ideals of virtue or personal character: it leaves people free to pursue whatever ends they think appropriate, giving them all-purpose means and freedoms with which to do so.82 The right to free speech is sometimes understood as one such all-purpose freedom. That story misrepresents liberalism, which in fact is intensely ideal-regarding. Its covert ideal-regarding character is perhaps clearest in the most abstemious want-regarding formulation, that of utilitarianism. Utilitarianism aims to gratify whatever preferences people actually have, leaving them free to prefer whatever ends they find attractive. For any person to pursue general utility as an end however is an extraordinarily demanding

76 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). 77 Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). 78 Citizens United v. FEC, 130 S. Ct. 876, 898 (2010). 79 See Andrew Koppelman, Veil of Ignorance: Tunnel Constructivism in Free Speech Theory, 107 NW. U. L. REV. 647 (2013). 80 BRIAN BARRY, POLITICAL ARGUMENT 38–41 (1965). 81 See, e.g., JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 65–70 (1984). For critique, see Koppelman, Does Obscenity Cause Moral Harm?, supra note 62, at 1642–43. Rawls, on the other hand, makes clear that his theory of justice is ideal-regarding because it does not hold that all satisfactions are of equal value. JOHN RAWLS, A THEORY OF JUSTICE 326 (1971). Rawls’s ideal, however, is more abstract than the one I discuss here, and its abstractness has costs. See Andrew Koppelman, The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?, 71 REV. POL. 459 (2009). 82 Or if there are such virtues, they are merely instrumental ones: the traits of character that citizens must have if a liberal society is to function. See generally EAMONN CALLAN, CREATING CITIZENS: POLITICAL EDUCATION AND LIBERAL DEMOCRACY (1997); STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM (1990). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 679 task, requiring that I give as much weight to the happiness of others as I do to my own. If I am to pursue a utilitarian policy, I may have to endure the frustration of my own preferences. Utilitarianism cannot explain why I should do that. An intense and demanding benevolence is built into its formulations from the start.83

B. Millian Idealism A canonical statement of the free speech tradition’s ideal-regarding aspect is John Stuart Mill’s 1859 book On Liberty.84 I will examine Mill’s formulation in some detail. It is impossible to demonstrate in this short Article that an entire tradition is ideal-regarding. On Liberty is however probably the most influential defense of free speech ever written. Its reliance on a character ideal, and its capacity to make that ideal attractive to its readers, is an important source of that influence.85 The liberty that Mill wants to defend not only encompasses “liberty of expressing and publishing opinions” but also liberty of tastes and pursuits, of framing the plan of our life to suit our own character, of doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.86 The protection of speech is an exception to his principle that the state may interfere with liberty only to prevent harm to others: almost all speech is

83 See CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 31 (1989). 84 JOHN STUART MILL, ON LIBERTY (Gertrude Himmelfarb ed., Penguin Books 1974) (1859). 85 It is what is generally meant by the familiar “marketplace of ideas,” though that term is more commonly associated with Oliver Wendell Holmes. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Holmes’s idea of free speech avoids any reliance on ideals, but for that reason it is likely, on close examination, to be strange to contemporary readers. See Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 SUP. CT. REV. 1, 45. For other examinations of the role of a character ideal in the justification of free speech, see generally Vincent Blasi, Free Speech and Good Character: From Milton to Brandeis to the Present, in ETERNALLY VIGILANT: FREE SPEECH IN THE MODERN ERA 60 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002) [hereinafter Blasi, Free Speech and Good Character]; LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA (1986); JOHN DURHAM PETERS, COURTING THE ABYSS: FREE SPEECH AND THE LIBERAL TRADITION (2005). It is possible to reformulate Mill’s argument in a way that excludes such considerations. See, e.g., Joshua Cohen, Freedom of Expression, in TOLERATION: AN ELUSIVE VIRTUE 173, 188 (David Heyd ed., 1996); Gerald F. Gaus, State Neutrality and Controversial Values in On Liberty, in MILL’S ON LIBERTY: A CRITICAL GUIDE 83, 84 (C.L. Ten ed., 2008). Such reformulations lose in rhetorical power more than they gain in theoretical parsimony. 86 MILL, supra note 84, at 71. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

680 EMORY LAW JOURNAL [Vol. 65:661 protected even when it is harmful. But the exception is derived from the same commitments that generate the broader protection of liberty. All this sounds want-regarding, and has often been taken to be so. The basis of these claims, however, is ideal-regarding. Mill’s primary reason for demanding this broad liberty is an ideal of individuality. Every individual has an obligation to respond to an inwardly felt calling, which if courageously pursued will bring him closer to the ultimate good. Free speech and freedom of conduct are valuable as means, because they smooth the path toward this ideal.87 Society needs “open, fearless characters.”88 Mill cares about the capacity to grasp truth inwardly, not just by outward show. He values “the clearer perception and livelier impression of truth produced by its collision with error.”89 If the reasons for even a true opinion are held without understanding the arguments both for and against it, “it will be held as a dead dogma, not a living truth.”90 Truth held dogmatically “is but one superstition the more, accidentally clinging to the words which enunciate a truth.”91 The pursuit matters more than the attainment: “Truth gains more even by the errors of one who, with due study and preparation, thinks for himself than by the true opinions of those who only hold them because they do not suffer themselves to think.”92 Mill thinks that the moral distress of contemplating ways of life antithetical to your own is good for you.93 “[T]he most important point of excellence which any form of government can possess is to promote the virtue and intelligence of the people themselves . . . .”94 Freedom is good because it produces better people: It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it and calling it forth, within the limits

87 See FRED R. BERGER, HAPPINESS, JUSTICE, AND FREEDOM: THE MORAL AND POLITICAL PHILOSOPHY OF JOHN STUART MILL 271–74 (1984). 88 MILL, supra note 84, at 94. 89 Id. at 76. 90 Id. at 97. 91 Id. 92 Id. at 95. 93 See JEREMY WALDRON, Mill and the Value of Moral Distress, in LIBERAL RIGHTS: COLLECTED PAPERS 1981–1991, at 115 (1993). 94 JOHN STUART MILL, Considerations on Representative Government, reprinted in ESSAYS ON POLITICS AND SOCIETY, COLLECTED WORKS OF JOHN STUART MILL vol. XIX 390 (John M. Robson ed., 1996). The importance of ideals of virtue in Mill is explored in PETER BERKOWITZ, VIRTUE AND THE MAKING OF MODERN LIBERALISM 134–69 (1999). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant ailment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to.95 As John Durham Peters observes, Mill’s ideal of character is an unstable mix of stoicism and romanticism. As listeners, citizens must be willing to subject their dearest beliefs to challenge and criticism, and learn to articulate views the opposite of their own. Yet as speakers, they must present their ideas powerfully and with conviction.96 The valuable character traits promoted by a regime of free speech have a negative counterpart in the malign effects of censorship. “The greatest harm done is to those who are not heretics, and whose whole mental development is cramped and their reason cowed by the fear of heresy.”97 The consequence is “a low, abject, servile type of character,”98 whose “human capacities are withered and starved.”99 Mill bombards it with nasty metaphors: automatons in human form, apes, cattle, sheep; a “stagnant pool.”100 The rhetorical aim is to make the reader see the value of the kind of character that Mill prizes. Alan Ryan observes that On Liberty “does not so much lay out logically compelling arguments as depict a type of character to which one can react favourably or unfavourably.”101 One of the central character traits that concern Mill is the “moral courage of the human mind.”102 He feared “social tyranny more formidable than many kinds of political oppression,” which “leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul

95 MILL, supra note 84, at 127. The same theme is apparent in his essay The Subjection of Women, which condemns “the dull and hopeless life to which [society] often condemns them, by forbidding them to exercise the practical abilities which many of them are conscious of, in any wider field than one [childrearing] which to some of them never was, and to others is no longer, open.” JOHN STUART MILL, THE SUBJECTION OF WOMEN 99–100 (M.I.T. Press 1970) (1869). 96 PETERS, supra note 85, at 130–36. 97 MILL, supra note 84, at 95. 98 Id. at 114. 99 Id. at 126. 100 Id. at 129. 101 ALAN RYAN, J. S. MILL 141 (1974). For a similar reading of Mill, see ISAIAH BERLIN, John Stuart Mill and the Ends of Life, in FOUR ESSAYS ON LIBERTY 173 (1969). 102 MILL, supra note 84, at 94. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

682 EMORY LAW JOURNAL [Vol. 65:661 itself.”103 This could only be prevented by a shared understanding of the value of individuality and choice. “Genius can only breathe freely in an atmosphere of freedom.”104

C. The Persistence of the Ideal I have focused on Mill, whose statement of his ideal is unusually well developed and influential, but he is hardly idiosyncratic. Similar aspirations can be found in many of the classic defenders of free speech. Milton thought that a regime of free speech was valuable because it was a stimulant to an indispensable spiritual exercise: “Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is trial, and trial is by what is contrary.”105 Justice Brandeis thought that free speech was valuable because it would produce “courageous, self-reliant men, with confidence in the power of free and fearless reasoning.”106 He thought it “hazardous to discourage thought, hope and imagination,” because “the greatest menace to freedom is an inert people.”107 The same theme appears, in somewhat rarefied form, in contemporary theorists who try to reduce free speech to a single value, such as democracy, autonomy, or self-realization.108 To some extent, these virtues are instrumentally necessary for democracy to function.109 But they are not only valued for that reason. As Justice Brandeis observed, liberty is valuable “both as an end and as a means.”110 These traits of character are deemed valuable in themselves. The individual- and democracy-based accounts of free speech complement one another. Both of them give weight to the views of each individual. All must be able to participate in public discourse. No one may be silenced.

103 Id. at 63. 104 Id. at 129. 105 John Milton, Areopagitica, reprinted in COMPLETE POEMS AND MAJOR PROSE 728 (Merritt Y. Hughes ed., 1957); see Vincent Blasi, Milton’s Areopagitica and the Modern First Amendment (Yale L. Sch. Occasional Papers, Paper No. 6, 1995), http://lsr.nellco.org/yale/ylsop/papers/6. 106 Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see Blasi, Free Speech and Good Character, supra note 85, at 78, 84; Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 WM. & MARY L. REV. 653, 668, 670 (1988). 107 Whitney, 274 U.S. at 375. 108 See generally Koppelman, supra note 79 (discussing many of these). 109 See supra note 82. 110 Whitney, 274 U.S. at 375. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 683

We have some experience with an America in which these virtues are neglected. During our most repressive periods, during the Palmer raids after World War I and the McCarthy period in the 1950s, the sense of being watched was pervasive. During the loyalty probes of the latter period, the government was empowered to decide what thoughts and ideas would be permitted and which were “disloyal.”111 The consequence was a climate of fear. Everyone understood that severe punishment could be imposed for the mere holding of unpopular political positions.112 Its effect was to deprive the electorate of legitimate political choices. The ideal is a broadly democratic public discourse in which everyone has an opportunity to participate in the formation of public opinion. Free speech law has been shaped by the need for widespread opportunities for expression. Public fora such as streets and parks must be available for speakers;113 so must any public forum designated by the state;114 cheap means of communication, such as handbills or signs in the windows of homes, cannot be prohibited.115 Otherwise valid restrictions on speech may be invalid if they create a chilling effect on protected speech.116 Free speech is a tradition that is fundamentally concerned with bringing about a state of affairs in the world: the maintenance of the complex system of practices and goods that constitutes public discourse. Robert Post observes that this autonomous sphere of discussion has a specific, collective goal: “to enable the formation of a genuine and uncoerced public opinion in a culturally heterogeneous society.”117 That goal shapes the doctrine. “At root, First Amendment prohibitions against viewpoint and content discrimination express the essential postulate that all persons within public discourse should be

111 GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 352 (2004). 112 See REDISH, supra note 65 (discussing abuses during the McCarthy era). 113 Hague v. Comm. for Indus. Org., 307 U.S. 496, 515–16 (1939). 114 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44–46 (1983). 115 City of Ladue v. Gilleo, 512 U.S. 43, 45, 58–59 (1994); Schneider v. State, 308 U.S. 147, 164, 165 (1939). 116 United States v. Williams, 553 U.S. 285, 292 (2008); N.Y. Times v. Sullivan, 376 U.S. 254, 271–80 (1964). 117 ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 145 (1995). The goal is democracy broadly understood, reaching beyond government to popular control of culture. Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. REV. 1, 3–4 (2004). One goal is a kind of mutual transparency. See Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, 27 CONST. COMMMENT. 283, 285–86, 301–02 (2011). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

684 EMORY LAW JOURNAL [Vol. 65:661 equally free to say or not say what they choose.”118 In order to realize that aspiration, citizens have to have the kind of character that facilitates and inclines toward participation in that discourse. Protection of some kinds of speech helps to promote that ideal. Other kinds of speech are tangential to it, or even irrelevant. That explains the limited salience of free speech. Contract law, for example, is outside the scope of protection—it is not even an exception to free speech protection—because it is not within the sphere of public discourse. The central ideal-regarding goal of free speech is a distinctive type of human flourishing, one that cannot occur except in what Mill called “an atmosphere of freedom.”119 A part of that flourishing is the unquestioned assumption of one’s right to speak and to play with ideas. Courage is not quite the right term because it implies that one is aware of danger and has the fortitude to proceed nonetheless. The state of mind one seeks is rather the confidence characteristic of young people who have never suffered serious injury, and who perform impressive and dangerous feats because they unconsciously, irrationally feel sure that they cannot really be hurt. Speakers should have the kind of confidence that does not even imagine that their opinions could get them into trouble with the police. That confidence is vulnerable.120 When it is attacked, the free speech ideal is a reason for deploying the law to defend it.

III. REVENGE PORNOGRAPHY AND SILENCING A paradigmatic antonym to this confidence is the disrupted state of mind induced by threats. Fear is one of the basic emotions. The mechanism of its arousal is based in the brain stem, a part of the neurological system we share

118 ROBERT C. POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM: A FIRST AMENDMENT JURISPRUDENCE FOR THE MODERN STATE 22 (2012). This is not to unqualifiedly embrace Post’s free speech theory, see Koppelman, supra note 79, at 677–79, but our differences are not pertinent here. 119 MILL, supra note 84, at 129 (emphasis omitted). 120 The persistent effect of repression is nicely illustrated by this story told by Clancy Sigal, a writer whose parents were arrested and jailed during the Palmer raids of 1920. Decades later, when FBI agents arrived to question Sigal about his politics during the cold war, Sigal noted, [M]y mother politely met them at the door, invited them in for coffee and charmed them out of their intended purpose. But she was pale and terrified when I got home. In an understandable slip of the tongue she said: “The Palmers have been here. What have you done?”

Clancy Sigal, Opinion, John Ashcroft’s Palmer Raids, N.Y. TIMES (Mar. 13, 2002), http://www.nytimes.com/ 2002/03/13/opinion/john-ashcroft-s-palmer-raids.html. Thanks to Bonnie Honig for the reference. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 685 with reptiles. The anxiety that is triggered can preoccupy a person long after the danger has disappeared. This is the most fundamental reason why threats are not protected speech.121 A person in fear is a poor participant in democratic deliberation. One cannot think about the objects of public discourse because it is hard to concentrate on anything. Revenge pornography sometimes has that effect, and is intended to have that effect.122 “I just feel like I’m now a prime target for actual ,” one victim reported. “I never walk alone at night, and I get chills when I catch someone staring at me. I always wonder to myself, ‘Are they staring at me because they recognize me from the Internet?’”123 She closed her Facebook page and LinkedIn profile, withdrew from online activities, and considered fleeing the job market altogether and starting a business partnership with a friend who would keep her name out of the marketing materials.124 Other victims report post-traumatic stress disorder, anorexia nervosa, depression, and anxiety, which grows more severe over time.125 A common reaction is to try to make oneself as invisible as possible. Revenge pornography has induced women to quit their jobs, disappear from the Internet, and move away from their homes.126 Certain feminist and critical race theorists, arguing for the restriction of misogynistic pornography and hate speech, have argued that such speech is antagonistic to free speech values because it silences its targets. This silencing happens through direct and by creating a cultural climate that discredits what women and African Americans have to say.127 These arguments have not been persuasive, and while they are still made, they are less prominent than they once were. The reason they failed was that,

121 See Kenneth L. Karst, Threats and Meanings: How the Facts Govern First Amendment Doctrine, 58 STAN. L. REV. 1337, 1339–46 (2006). 122 The question, which the Court recently failed to resolve, whether the fear engendered by a threat, in order to be unprotected, must be caused intentionally or merely recklessly, thus is not pertinent here, where both are the case. See Elonis v. United States, 135 S. Ct. 2001, 2004, 2013 (2015). 123 CITRON, supra note 3, at 48. 124 Id. 125 Id. at 10–11. 126 See id. at 1–21, 45–50. 127 See, e.g., RAE LANGTON, SEXUAL SOLIPSISM: PHILOSOPHICAL ESSAYS ON PORNOGRAPHY AND OBJECTIFICATION 2, 3–4 (2009); CATHARINE A. MACKINNON, Francis Biddle’s Sister: Pornography, Civil Rights, and Speech, in FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 163–97 (1987); MARI J. MATSUDA ET AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 7 (1993). A useful rejoinder is HENRY LOUIS GATES ET AL., SPEAKING OF RACE, SPEAKING OF SEX: HATE SPEECH, CIVIL RIGHTS, AND CIVIL LIBERTIES (1994). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

686 EMORY LAW JOURNAL [Vol. 65:661 while free speech theory can hardly be indifferent to silencing when it occurs, and although such silencing effects are clearly part of the daily experience of African Americans and women, the advocates of censorship were never able to establish a persuasive causal nexus between silencing and any particular speech act. It was impossible to show that any single instance of racist speech or pornography could have that kind of devastating effect on a person.128 Speech is certainly integral to the problem: racism and are ideas in people’s heads, and those ideas get transmitted from one generation to the next by means of language. Antidiscrimination law is necessarily committed to the reshaping of culture to eliminate or marginalize such malign ideologies.129 But censorship is the wrong tool for this job. The cost to free speech of a hate speech prohibition—and there is every reason to think that it would be substantial130—would not buy much. Revenge pornography is different. There is a tight causal connection between speech and harm. A single posting to a website can have a permanently life-altering effect on its target, imposing a spoiled identity that it is impossible to ever escape.131 Free speech depends on a willingness to disclose one’s thoughts with no fear of crushing reprisal. It aims “to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.”132 That aim is thwarted if you protect this speech. Only a small minority is likely to be placed in this position. But there is still a free speech problem if the aspiration is to enable everyone to participate

128 Compare Rae Langton, Subordination, Silence, and Pornography’s Authority, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION 261, 261–83 (Robert C. Post ed., 1998), with the skeptical response in Leslie Green, Pornographizing, Subordinating, and Silencing, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION, supra, at 285, 285–311. See also SPEECH AND HARM: CONTROVERSIES OVER FREE SPEECH (Ishani Maitra & Mary Kate McGowan eds., 2012) (reviewed in Andrew Koppelman, Book Review, 123 ETHICS 768 (2013)). Catharine MacKinnon claims that her anti-pornography statute would merely allow “anyone hurt through pornography to prove its role in their abuse.” CATHERINE A. MACKINNON, ONLY WORDS 92 (1993). That, however, really means that juries would be empowered to do what they like to producers of pornography. Learned Hand observed long ago that a test for unprotected speech that leaves great discretion to juries would likely be used improperly to suppress unpopular speech. See Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719, 721 (1975). 129 See ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 8 (1996). 130 Id. at 220–65. 131 See generally ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963). 132 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 687 in public discourse. Part of the legitimating force of public discourse is that there are low barriers to entry. I am not claiming that this egalitarianism is a necessary part of any possible free speech ideal. My claim is historically contingent. In early America, the audience for books and newspapers was presumptively white, male, and upper class. Indeed, printing was one of the markers that constituted a specifically white community.133 A lively debate took place among Southern white Americans, in the late nineteenth century, over the proposal to disenfranchise black citizens. The proposal was adopted.134 Many public spheres imply narrow audiences. The question is what ideal animates our public sphere. I submit that our ideal is an egalitarian one. I have not just brought equality into free speech theory because I happen to like it. It is integral to the prevailing ideal. What does it mean if the harms of revenge pornography go unredressed? Criminal law is about equal status in society. If harm to a class of people is tolerated by the law, then that signifies the inferior status of those who can be harmed with impunity.135 The state thereby ratifies spoiled identity. If the harm of revenge pornography is not remediable, it means that the targets are fair game. I have been arguing that an important justification of freedom of speech is an ideal of character. Recognition of that ideal makes possible a response to a certain postmodern objection to the idea of free speech.136 The objection is that censorship in some form is inevitable. By constituting limited possibilities of expression, any social order will generate a pattern of both speech and silence. Recognition of that fact threatens to enfeeble censorship as a normative concept.137 There simply is no fact in the world that can be singled out as

133 MICHAEL WARNER, THE LETTERS OF THE REPUBLIC: PUBLICATION AND THE PUBLIC SPHERE IN EIGHTEENTH-CENTURY AMERICA 12 (1990). 134 See C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 67–109 (3d rev. ed. 1974). 135 Jean Hampton, A New Theory of Retribution, in LIABILITY AND RESPONSIBILITY: ESSAYS IN LAW AND MORALS 377, 387–88 (R.G. Frey & Christopher W. Morris eds., 1991); Jean Hampton, The Retributive Idea, in FORGIVENESS AND MERCY 111, 122 (Jeffrie G. Murphy & Jean Hampton eds., 1988); G.W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 115–32 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge Univ. Press 1991) (1821); Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1679 (1992). 136 For one prominent formulation, see STANLEY FISH, THERE’S NO SUCH THING AS FREE SPEECH, AND IT’S A GOOD THING, TOO (1994), further critiqued in Koppelman, supra note 79, at 686–87. 137 Robert C. Post, Censorship and Silencing, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION, supra note 128, at 1–2. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

688 EMORY LAW JOURNAL [Vol. 65:661 censorship. “Censorship” is a conclusion, not a premise; it is the label we place on the speech restriction that we have decided on other grounds to stigmatize as wrongful.138 The normative claim can be rehabilitated if one acknowledges, with Foucault, that power can be productive.139 Free speech is the aspiration to deploy power to produce a distinctive kind of person in a distinctive kind of society. It lives up to that aspiration if it succeeds in its productive ambitions— if it actually produces the kind of people it hopes to produce: people who measure up to the Mill–Brandeis ideal.140 Revenge pornography is a new problem, and one may wonder whether it will be persistent enough to justify modifying free speech law. Humbach speculates that “in a few years’ time, people will look back and wonder what all the fuss was about—and the sooner it becomes known . . . just how common it is to take such pictures, the sooner people will stop acting as though doing so is somehow reprehensible or outré.”141 If he is right, then this particular type of bad behavior will become increasingly harmless—no more discrediting than the observation that a married woman sometimes has sex with her husband. It will no longer damage a woman’s employability or reputation. I don’t buy it. In a world in which women are pervasively integrated into professional workplaces, they still have to struggle with a cultural context in which being sexualized is discrediting. The question of what to wear to work is far more fraught for women than for men. So is the question of professional demeanor. Justice Ginsburg observes that the ban on sex discrimination is violated when “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”142—or, as she put it more pithily in oral argument, when “one sex has to put up with something that the other sex doesn’t have to put up with.”143 If, however, this is the test, then antidiscrimination law is routinely violated because women routinely put up with nonsense at work that men do not have to put up

138 Frederick Schauer, The Ontology of Censorship, in CENSORSHIP AND SILENCING: PRACTICES OF CULTURAL REGULATION, supra note 128, at 147, 160. 139 See MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 27 (Alan Sheridan trans., Vintage Books 1979) (1975). 140 Foucault is suspicious of productive power, but because the exercise of that power is inevitable, a hermeneutic of unrelieved suspicion leads nowhere. See CHARLES TAYLOR, Foucault on Freedom and Truth, in 2 PHILOSOPHICAL PAPERS: PHILOSOPHY AND THE HUMAN SCIENCES 152 (1985). 141 Humbach, supra note 24, at 230 n.69. 142 Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring). 143 Linda Greenhouse, Ginsburg at Fore in Court’s Give-and-Take, N.Y. TIMES, Oct. 14, 1993, at A1. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 689 with. Professional discrediting through of one’s identity is a prime example. This is unlikely to change in our lifetimes. We do not now have a cure for sexism. It is however a disease that can be managed. The key to managing a chronic disease is to frankly acknowledge and respect one’s continuing vulnerabilities. Perhaps we must endure a continuing cultural climate of sexism. We need not endure a class of notoriously damaged women. A familiar example is Monica Lewinsky. The smirk that is often elicited by the mere mention of her name is a powerful marker of her degraded status, years after her widely publicized affair with President Bill Clinton. “I became a social representation, a social canvas on which anybody could project their confusion about women, sex, infidelity, politics, and body issues.”144 She reports the consequences of that identity in a brief memoir written more than fifteen years after the Starr Report “included chapter and verse about my intimate sexual activities.”145 In the years that followed, she found that she either could not get a job or, in a few cases, she “was right for all the wrong reasons”: a prospective employer wanted to trade on her notoriety.146 “I eventually came to realize that traditional employment might not be an option for me.”147 At a taping of a public Q&A for an HBO documentary, she was asked by an audience member, “How does it feel to be America’s premier blow-job queen?”148 During Hillary Clinton’s run for the 2008 Democratic presidential nomination, “I remained virtually reclusive, despite being inundated with press requests.”149 She has recently begun to try to craft a new public persona as a public intellectual. But the only thing anyone wants to hear her talk about is her own narrative of . And it took years for her to get where she is now: Unlike the other parties involved, I was so young that I had no established identity to which I could return. I didn’t “let this define” me—I simply hadn’t had the life experience to establish my own identity in 1998. If you haven’t figured out who you are, it’s hard not to accept the horrible image of you created by others. (Thus, my compassion for young people who find themselves shamed on the

144 Monica Lewinsky, Shame and Survival, FAIR (June 2014), http://www.vanityfair.com/style/ society/2014/06/monica-lewinsky-humiliation-culture. 145 Id. 146 Id. 147 Id. 148 Id. 149 Id. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

690 EMORY LAW JOURNAL [Vol. 65:661

Web.) Despite much self-searching and therapy and exploring of different paths, I remained “stuck” for far too many years.150 Free speech law threatens to reproduce this effect on a massive scale. The free speech costs of a revenge pornography law are undoubtedly substantial. The law’s purpose is to suppress a viewpoint: that a specific woman is deservedly discredited by her sexuality. Sexism is antithetical to liberalism,151 but liberalism generally addresses it by means other than the restriction of speech. Here, however, there is no other way to do it. The general principles that appropriately govern free speech law should not govern here. Revenge pornography produces emotional injury, damages social standing, and is economically destructive. But it misdescribes the problem to say that these harms are to be balanced against the imperatives of the liberal political order. This speech harms the liberal political order by driving some citizens out of it. The harms of dogfighting, or of visible, nasty signs at funerals are severe, I think severe enough to justify regulation, but they do not produce harms of this kind.

IV. HOW TO CARVE OUT EXCEPTIONS The task of carving out exceptions has a structure that is familiar from the law of religious accommodation. American law sometimes gives religion special treatment. Quakers’ and Mennonites’ objections to participation in war have been accommodated since Colonial times. Sacramental wine was permitted during Prohibition. Today the Catholic Church is exempted from antidiscrimination laws when it denies ordination to women. We exempt people from generally applicable laws when they have sufficiently urgent reasons (religious scruples have traditionally been held to be such) and the law’s purposes won’t be thwarted by accommodation.152 When an exception to free speech protection (supposing it already settled that we are in the realm of free speech salience) is proposed, the courts have to ask whether the harm in question is sufficiently harmful to modify free speech

150 Id. 151 See KOPPELMAN, supra note 129, at 115–45. 152 See Andrew Koppelman, Religion’s Specialized Specialness, 79 U. CHI. L. REV. DIALOGUE 71, 73 (2013), https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Koppelman%20 Online.pdf; Andrew Koppelman, Nonexistent and Irreplaceable: Keep the Religion in Religious Freedom, COMMONWEAL MAG. (Mar. 27, 2015, 12:00 PM), https://www.commonwealmagazine.org/nonexistent- irreplaceable. KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

2016] REVENGE PORNOGRAPHY 691 doctrine. No formula can help with that step. Harm is a setback to interests, and there is perpetual contestation about which human interests are important. The Court has never devised a test for what counts as a compelling state interest. Pace the Court, it is not possible to freeze in advance the categories of harm that call for exceptions. Human vulnerability takes many forms, and no one can anticipate all of the harmful things that can be accomplished with speech in the future. Assessing the degree of harm is inevitably a contestable undertaking. But one factor must be whether the harm reaches into the area of free speech salience. Harm that silences a class of speakers has to be taken seriously. If the harm is serious enough, it next must be asked whether that harm can be prevented without chilling the “atmosphere of freedom” that free speech seeks to foster. Even some speech that is antithetical to the liberal order has to be tolerated. Communists did not believe in free speech, and so it was argued in the 1950s that their speech should not itself be protected.153 But the consequence of that non-protection was an atmosphere of fear that reached far beyond the Communists. Much of the flowering of free speech theorizing in the 1960s was born of a determination not to repeat that experience.154 That leads us to a lawyer’s question: can the category of unprotected speech be crafted with sufficient precision that clear notice is given as to which speech is protected and which is unprotected? Categories of low-value speech must be “well-defined and narrowly limited.”155 That responds to familiar concerns of “chilling effect” and “slippery slope.” If, however, a category of unprotected speech can be crafted with enough precision, then exceptions to ordinary free speech principles, even the prohibition of viewpoint discrimination, can be consistent with the broader purposes of the system of freedom of expression. A final objection to this kind of exercise is that, even if free speech law is a judicial construct, its stability and effectiveness depend on extreme judicial

153 Carl A. Auerbach, The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech, 23 U. CHI. L. REV. 173, 186–89 (1956). 154 See, e.g., Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 878–93 (1963). This theory is also discussed in Koppelman, supra note 79, at 704–06. 155 United States v. Stevens, 559 U.S. 460, 468–69 (2010) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

692 EMORY LAW JOURNAL [Vol. 65:661 reluctance to carve out new categories of non-protection. Dissenting political speech has often been regarded as having low value, and if courts took for granted a power to make exceptions whenever the benefits of censorship seemed to outweigh the costs, America would be a much more repressive country. Chief Justice Roberts’s mythical story may be intellectually indefensible, but it is still better to over-constrain judges than to under- constrain them. Overconstraint has its costs, however. Free speech doctrine needs to honestly take account of the harm that speech can sometimes do.156 When the harm is severe enough, a new exception can be created, as happened with child pornography.157 There is no way to determine whether the danger of non-protection of speech outweighs the benefit without considering the magnitude of the harm at issue.

CONCLUSION Revenge pornography prohibitions raise a serious free speech problem. They suppress truthful information, and they do so in order to prevent audiences from being persuaded, by that information, to form a viewpoint with which government disagrees: specifically, that this woman is a despicable whore because she allowed this picture to be taken. The harm that this speech causes is, however, so severe that an exception to ordinary free speech principles is justified. The Court has declared that no new free speech exceptions can be considered, ever again. With that declaration, it has transformed the idea of free speech, one of the great achievements of modern law, into a set of rules to be blindly followed. Legal rules inevitably tend to become more definite over time as precedents accumulate. This growing clarity is valuable. Notice is a central element of the rule of law. The complex web of free speech rules that the Supreme Court has crafted is an important safeguard against the abuse of government power, one that could not be duplicated by vague standards. But these judge-made rules should not be placed beyond reconsideration.

156 See Frederick Schauer, Harm(s) and the First Amendment, 2011 SUP. CT. REV. 81. 157 See Amy Adler, The Perverse Law of Child Pornography, 101 COLUM. L. REV. 209, 210–11, 230–34 (2001). KOPPELMAN GALLEYSPROOFS2 2/25/2016 9:24 AM

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Roscoe Pound noted more than a century ago the tendency of law to degenerate into a “mechanical jurisprudence,” to “stifle independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another.”158 The tendency is inevitable: The effect of all system is apt to be petrifaction of the subject systematized. Perfection of scientific system and exposition tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another. This is so in all departments of learning.159 The twentieth-century Court that constructed free speech doctrine was engaged in the precise creative procedure the present Court deems “startling and dangerous.” Today’s law purports to be historically grounded but in fact paradoxically depends for its justification on historical amnesia. Whatever else one can say about the jurisprudence the Court has constructed, it certainly is mechanical. And people, whom free speech is supposed to empower, are being crushed between the gears.

158 Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REV. 605, 606 (1908). 159 Id. User Name: John Caher Date and Time: Wednesday, September 18, 2019 2:26:00 PM EDT Job Number: 97754273

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Length: 28647 words

Author: Sarah Bloom *

* J.D. Candidate, 2015, Fordham University School of Law; B.A., 2011, University of Pennsylvania. This Note would not have been possible without the patience and insightful comments from my advisor, Professor John Pfaff. I also want to thank my friend Zoe, who directed me to this crazy topic, my Fordham friends, who were always eager to discuss revenge porn, and my boyfriend Mike. This Note is for my mother and grandmother, who always fight for the female underdog, especially when faced with legal adversity.

Text

[*234] INTRODUCTION

Annmarie's long distance boyfriend, Joey 1, had been pressuring her for months to take nude photographs. 2 He missed her, he claimed, and wanted to admire her beauty while they were apart. 3 Joey swore they would stay on a CD, hidden in a drawer in his room, and he [*235] would be the only one ever to see them. 4 However, in February 2010, the day after Joey and Annmarie broke up, he called her in a rage. 5 He accused her of sleeping with three other men, and based the allegation on information obtained from her Facebook page. 6 Annmarie denied the accusations and tried to reason with him, but Joey refused to believe her. 7

1 "Joey's" name has been changed.

2 Annmarie Chiarini, I Was a Victim of Revenge Porn. I Don't Want Anyone Else to Face this, GUARDIAN (Nov. 19, 2013, 7:30 AM), http://www.theguardian.com/commentisfree/2013/nov/19/revenge-porn-victim-maryland-law-change.

3 Anne Flaherty, 'Revenge Porn' Victims Press for New Laws, L.A. DIALY NEWS (Nov. 15, 2013), http://www.dailynews.com/general-news/20131115/revengeporn-victims-press-for-new-laws.

4 Id.

5 Chiarini, supra note 2.

6 Id.

7 Id.

John Caher Page 2 of 43 42 Fordham Urb. L.J. 233, *235

Joey threatened to start an eBay auction for the CD of the eighty-eight naked images of Annmarie that he had previously sworn to keep private. 8 He also informed her that he would send the link to all her friends, family, and co-workers at the college where she was employed. 9 "I will destroy you," he promised. 10 Annmarie called the police that very night. 11 The police told Annmarie that there was nothing they could do to protect her because no crime had been committed. 12

The next day, Joey kept his promise and the auction went live. 13 The eBay posting was titled "(Name of [Annmarie's] college)MD English Professor Nude Photos!" 14 Annmarie also discovered that Joey had posted the eBay links on five of her college's Facebook pages. 15 She received messages from friends, her ex-husband, and a former babysitter alerting her of the auction. 16 Annmarie reported Joey on Yahoo! and Facebook. 17 She even contacted the police again, but the officer reiterated there was nothing they could do. 18 Frustrated, Annmarie decided to go to the police station with printouts of the auction website. 19 The officers there snickered at the pictures and looked amused at her problem. 20

[*236] For the next year, Annmarie lived in perpetual fear. 21 She would often wake up in the middle of the night in a panic. 22 Then, in September 2011, her worst fears came true when she Googled her name and found that a profile had been created for her on a porn website. 23 The title was "HOT FOR TEACHER? WELL, COME GET IT!" and included her full name, city where she lived, and the college where she worked. 24 An individual that Annmarie had never met was even chatting with online strangers purporting to be her. 25 The photographs had been up for two weeks, and had already been viewed 4000 times. 26 She later discovered that copies of the CD were mailed to both her son's Catholic school kindergarten teacher and the head of her department at the college where she was employed. 27

Annmarie went to the police again, who said there was nothing they could do until an actual crime had been committed. 28 One even looked amused at her problem. 29 She feared going outside, because her full name

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id. Ironically, Annmarie was informed of the auction from three emails stating, "Joseph Mann thought you might like this item on eBay[.]" Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id. ("I stood by fighting tears while three officers looked over the auction printouts I brought and snickered. The blond one who finally came over to talk to me seemed amused. It was my first experience with overt . And because it came

John Caher of 43 42 Fordham Urb. L.J. 233, *236 accompanied the photographs, and she worried she might be stalked. 30 She called her college and requested medical leave that day, but her request was denied. 31 Two days after she discovered her photographs on the porn website, she attempted to end her own life. 32 Fortunately, she was not successful. 33 Two weeks later, she brought her case to a state trooper. 34 The state trooper was sympathetic to her case, but once again said there was nothing he could do because there were no laws in place to protect victims like [*237] her. 35 Annmarie described this moment as the turning point, which pushed her to become an advocate for anti-revenge porn legislation. 36 "Well then, I'm going to change the laws," she vowed. 37 Annmarie then joined the ranks of women fighting a dangerous offense: revenge porn.

The term "revenge porn," also referred to as "nonconsensual pornography" 38 or "involuntary pornography," 39 is the distribution of sexually explicit images of an individual where at least one of the individuals depicted did not consent to the dissemination. 40 Revenge porn gets its name from scorned ex-boyfriends or ex-husbands 41 posting pictures of their former girlfriends or wives in order to "get back at" or humiliate them in retaliation for ending the relationship. 42 Although revenge porn gets its name because the perpetrators are often ex-partners, it can also be used to describe other types of relationships, as the definition can encompass any type of nonconsensual distribution of intimate photographs, such as postings by a roommate or a classmate using these pictures to bully another. 43 Usually, the sexual photos were originally taken or obtained with the [*238] consent of the subject, in the context of an . 44 Women may also find themselves victims of revenge porn because of someone hacking into their phone or computer and then posting the private pictures they find online. 45 The photographs are often posted with identifying personal information, such as the victim's full name, address, workplace, and Facebook page. 46

Today, sharing compromising photos with a partner is far from uncommon. 47 A recent study found that fifty percent of respondents had shared "intimate photos" with a partner, and one in ten of those respondents had been threatened by an ex who said they would post those pictures online. 48 Sixty percent of those threatening partners

from someone charged to protect and serve, it drove my shame and embarrassment to a paralyzing level."). This response to victims is not uncommon. See discussion infra Part I.E.

21 See Chiarini, supra note 2.

22 See Id. Annmarie recalls that to get back to sleep she would have to compulsively search her name on , eBay, and Facebook three times each. Id.

23 Id.

24 Id.

25 Id.

26 Flaherty, supra note 3.

27 Id.

28 Chiarini, supra note 2.

29 Id.

30 Id.

31 Id.

32 Id. ("Because of the permanence of the internet, and lack of legislation, this torture was never going to end. I seriously contemplated ending my life. I would have been successful if it weren't for three things, my dog needed to be let out, my mom called, and the pills I took weren't fatal.").

John Caher Page 4 of 43 42 Fordham Urb. L.J. 233, *238 carried out their threats. 49 Despite common awareness that celebrities often have their compromising photographs posted without permission, ninety-four percent of Americans still believe that their risqué photographs are safe in the hands of their current partners. 50 The National Campaign to Prevent Teen & Unplanned Pregnancy found in 2008 that thirty-six percent of young adult women and thirty-one percent of young adult men had sent another person a nude or semi-nude image of themselves. 51 The same study determined that out of the respondents who had sent sexually suggestive content to another, the overwhelming majority of them had sent it to a boyfriend or girlfriend. 52 Even though women and [*239] men appear to be sending these pictures in roughly equal numbers, women are far more likely to be pressured to send these pictures, and they are much more likely to be victims of revenge porn. 53 Victims of online harassment, which includes revenge porn, are overwhelmingly female, 54 while those who run revenge porn websites are predominately young males. 55

Why do these women send these compromising photographs at all? Sometimes it is just a way of . 56 More often, women send them to show their interest in the partnership. 57 Some men coax their girlfriends to send them sexual photographs of themselves to prove her in him. 58 In this scenario, the woman is caught in a difficult emotional position, for if she does not send a picture, it could be perceived as a sign that she does not truly trust or love her partner. 59

33 Id.

34 Id.

35 Id.

36 See Id.

37 Id.

38 See, e.g., Mary Ann Franks, Drafting an Effective 'Revenge Porn' Law: A Guide for Legislators, END REVENGE PORN [hereinafter Franks, A Quick Guide], http://www.endrevengeporn.org/?page_id=656 (last visited Feb. 14, 2014).

39 See, e.g., Lorelei Laird, Victims are Taking on 'Revenge Porn' Websites, A.B.A. J. (Nov. 1, 2013, 3:30 AM), http://www.abajournal.com/magazine/article/victims_are_taking_on_revenge_porn_websites_for_posting_photos_they_didnt_c/ .

John Caher Page 5 of 43 42 Fordham Urb. L.J. 233, *239

Part I of this Note examines the effect of revenge porn on its victims and how society has historically treated predominately female-felt crimes inflicted by romantic partners. First, this section examines the tangible and abstract effects that victims of revenge porn experience, and discusses the unique consequences and problems for victims of online harassment. Next, Part I contextualizes revenge porn in society's historical treatment of crimes [*240] against women committed by a romantic partner. Last, this section examines the phenomenon of victim blaming towards women who are targeted by revenge porn, and the dangerous societal ramifications of such blaming behavior.

Part II of this Note analyzes the current legal remedies available to revenge porn victims. First, this Part details why victims cannot reach out to websites for assistance. It then examines the current legal options available to victims if they want to sue the online poster, outlining both the criminal and civil remedies available. Additionally, it examines the practical and legal problems victims face if they wish to pursue a civil claim against their poster. This section proceeds to outline the general criminal statutes that may be utilized in some instances against disseminators of revenge porn. This section concludes by detailing the current laws directly addressing this type of behavior and the possible problems with specific anti-revenge porn legislation.

Part III of this Note discusses why a specific statute targeted at revenge porn is needed, and why it should be classified as a serious sexual offense. This section begins by outlining why a statute directly targeted at revenge porn is needed, rather than utilizing general criminal statutes. Next, it proposes that lawmakers should treat revenge porn as a type of because of its similarity to other sexual offenses. This section then

40 Ann Bartow, Copyright Law and Pornography, 91 OR. L. REV. 1, 44 (2012).

41 I will refer to victims in this Note with female pronouns and posters with male pronouns because according to a recent study by the Cyber Civil Rights Initiative, over eighty percent of revenge porn victims are female. Danielle Keats Citron, Revenge Porn: A Pernicious Form of Cyber Gender Harassment, BALT. SUN, Dec. 15, 2013, http://articles.baltimoresun.com/2013-12- 15/news/bs-ed-cyber-gender-harassment-20131214_1_cyber-civil-rights-initiative-nude-images-harassment; seealso infra note 54 (discussing how cyberharassment, including revenge porn, is a predominately female problem); infra note 55 (noting exceptions).

42 Lorelei Laird, Striking Back at Revenge Porn: Victims Are Taking on Websites for Posting Photos They Didn't Consent to, A.B.A. J., NOV. 2013, at 44, 46. Although revenge porn gets its name from ex-partners, it can also be used to describe other types of relationships since the definition itself can encompass any type of nonconsensual distribution of intimate photos. Id.

43 See infra note 247 (discussing the recent case of the college student who streamed a private encounter of his roommate kissing another male student); see also infra notes 73-81 and accompanying text (examining the tragic consequences of students sharing others' nude photos in the school bullying context).

44 See Franks, A Quick Guide, supra note 38; infra notes 47-48 and accompanying text.

45 See Maureen O'Connor, The Crusading Sisterhood of Revenge-Porn Victims, CUT (Aug. 29, 2013, 8:00 AM), http://nymag.com/thecut/2013/08/crusadingsisterhood-of-revenge-porn-victims.html.

46 See Erica Goode, Victims Push Laws to End Online Revenge Posts, N.Y. TIMES, Sept. 23, 2013, http://www.nytimes.com/2013/09/24/us/victims-push-laws-toend-online-revenge-posts.html.

47 See infra note 48 and accompanying text.

48 See Press Release, McAfee, Lovers Beware: Scorned Exes May Share Intimate Data and Images Online (Feb. 4, 2013), available at http://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx; see also Tara Culp-Ressler, Maryland Is the Latest State to Try to Ban 'Revenge Porn', THINK PROGRESS (Oct. 31, 2013, 10:57 AM), http://thinkprogress.org/health/2013/10/31/2866381/maryland-revenge-porn/.

49 Press Release, McAfee, supra note 48.

50 Id.

John Caher Page 6 of 43 42 Fordham Urb. L.J. 233, *240 moves on to explain the effect of classifying revenge porn as a sexual offense, and proposes how classifying revenge porn as a sexual offense could allow for advantageous evidentiary treatment under relevant rape shield statutes and laws which allow victims to operate under an alias in court documents.

I. THE DEVASTATING IMPACT OF REVENGE PORN AND THE CONTEXT OF CYBERHARASSMENT AND INTIMATE PARTNER CRIMES

A. Tangible Consequences of Revenge Porn

There are three main types of tangible effects victims of revenge porn experience. First, their online photographs can cause problems in their careers and in the workplace. Second, these women become more vulnerable to suicide. Lastly, victims often experience threats by third parties and their ex-partners. Each of these effects illustrates that revenge porn can devastate every corner of a woman's life.

The first tangible consequence that victims can experience is trouble in the workplace. These nude photographs can damage a [*241] woman's reputation in the office, when they are sent to co-workers and employers. 60 The pictures are also often reposted on dozens, if not hundreds, of websites, which floods Google searches when an individual's name is searched. 61 This is not only highly embarrassing to a victim, 62 but can also negatively impact her future career. Employers frequently rely on online searches to research potential candidates. 63 A woman's reputation is often so damaged that she may be forced to change her name. 64 Sometimes even this measure is not enough, as demonstrated by the story of now anti-revenge porn activist Holly Jacobs, founder of EndRevengePorn.com. 65 Jacobs' harasser discovered her changed name and simply re-posted the photographs, linking them to her new name. 66

The impact of revenge porn for women in the workplace is also felt offline. One victim lost her job after a co-worker brought in naked pictures of her into the office. 67 Another woman lost sales from her online handbag business after the defendant allegedly posted pornography pictures of her and statements that she was "sexually lustful and promiscuous." 68 In the case of Holly Jacobs, an tipster emailed the human resources department at

51 THE NAT'L CAMPAIGN TO PREVENT TEEN & UNPLANNED PREGNANCY, SEX AND TECH: RESULTS FROM A SURVEY OF TEENS AND YOUNG ADULTS 1 (2008), available at http://thenationalcampaign.org/sites/default/files/resource- primarydownload/sex_and_tech_summary.pdf (showing that thirty-six percent of women, and thirty-one percent of men had sent a nude or semi-nude image of themselves).

52 Id. at 2. Eighty-three percent of young adult women and seventy-five percent of young adult men who have sent or posted sexually suggestive content say they have sent/posted this content to a boyfriend/girlfriend. Id. Those who were not sending it to their boyfriend or girlfriend were sending the pictures to someone they just wanted to "hook up" with or someone they only knew online. Id.

53 See Nancy Willard, & Youth: Achieving a Rational Response, 6 J. SOC. SCI. 542, 546 (2010), available at thescipub.com/pdf/10.3844/jssp.2010.542.562.

54 See supra note 41 and accompanying text. Sixty to seventy percent of online harassment (including revenge porn) victims are women. Laird, supra note 39, at 43. Eighty percent of victims are women. WORKING TO HALT ONLINE ABUSE, 2012 CYBERSTALKING STATISTICS (2012), http://www.haltabuse.org/resources/stats/2012Statistics.pdf.

55 Laird, supra note 39, at 43. Males were identified through interviews and court documents. There are, of course, exceptions to this rule. A woman was also arrested in New Jersey for allegedly posting nude photos of her ex-boyfriend online. Rob Spahr, Howell Woman Arrested for Posting Nude Photos of Boyfriend Online, NJ.COM (Oct. 18, 2013), http://www.nj.com/monmouth/index.ssf/2013/10/howell_woman_arrested_for_allegedly_posting_nude_photos_of_ex- boyfriend_online_report_says.html.

56 Ellen Goodman, It's Not About Sex; Sexting Is Really About Trust, and the Violation Thereof, PITTSBURGH POST-GAZETTE (Apr. 24, 2009, 12:00 AM), http://www.post-gazette.com/Op-Ed/2009/04/24/Ellen-Goodman-It-s-not- aboutsex/stories/200904240216#ixzz2kqX5Y8xi.

John Caher Page 7 of 43 42 Fordham Urb. L.J. 233, *241 the university she worked claiming "a professor is masturbating for her students and putting it online." 69 The school called Jacobs into the dean's office, and the embarrassing incident ultimately led her to quit [*242] her job. 70 Whether it is from damaged reputations, lost customers, or actual loss of employment, these sexual online pictures can destroy a woman's career.

The second tangible consequence of revenge porn is increased vulnerability to suicide. According to a study from the Cyber Civil Rights Initiative, forty-seven percent of revenge porn victims have contemplated suicide. 71 This is especially felt in teenage and younger victims of revenge porn, who can be more fragile and susceptible to bullying. 72 Tragically, online harassment and sharing sexual photographs have caused some young teenage girls to commit suicide. 73

A horrific example of suicide sparked by revenge porn was the case of Audrie Potts. After getting drunk and passing out at a party the summer before her sophomore year of high school, three boys from Audrie Pott's class drew on her with sharpies, took off her clothes and took sexually explicit pictures of her. 74 The pictures were posted online, and Audrie was relentlessly tormented by her classmates and former friends once school started. 75 About a week after classes begun, she hung herself in the school bathroom. 76

What happened to Jessica Logan is another tragic example of the impact school bullying and revenge pornography. After a break up, eighteen-year-old Jessica Logan's ex-boyfriend began forwarding the naked pictures she had sent him during their relationship to other classmates. 77 Several of the girls who received the pictures began viciously tormenting Jessica calling her a "slut" and a "whore." 78 [*243] Jessica sunk into depression, and feared going to school. 79 She started skipping class, and when she did go to school, other students whispered about her as the girl who took the scandalous picture. 80 Shortly after her high school graduation, she took her own life. 81

Last, victims of revenge porn can become targets of threats of physical harm. Women whose photographs are posted on these websites are emailed or even physically stalked by men who view their pictures. 82 This danger is facilitated by the fact that very personal information often accompanies the victim's photographs. 83 Hunter Moore,

57 See Willard, supra note 53, at 543-44 (discussing teens).

58 See Goode, supra note 46. "He said if I didn't want to send them to him, that meant that I didn't trust him, which meant that I didn't love him," one victim said. Id.

59 See Goodman, supra note 56 ("[One reason these women share these sexualized pictures] is a way of brokering trust, a guy saying, 'You don't trust me? You won't send me a naked picture?' A brokered trust leads to broken trust when those photos are sent into the ether.").

60 See WITHOUT MY CONSENT FAQS, http://www.withoutmyconsent.org/faq (last visited Feb. 14, 2014).

61 See Danielle Citron, Revenge Porn and the Uphill Battle to Sue Site Operators, CONCURRING OPINIONS (Jan. 25, 2013) [hereinafter Citron, Uphill Battle], http://www.concurringopinions.com/archives/2013/01/revenge-porn-and-the-uphillbattle-to- sue-site-operators.html#sthash.oKcrlWfS.dpuf.

62 See Id.

63 See Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373, 386 (2009) [hereinafter Citron, Law's Expressive Value] ("Employers may decline to interview or hire targeted women not because they believe the malicious postings but because it is simply easier to hire individuals who don't come with such baggage. Moreover, candidates with impressive online reputations are more attractive to employers than those who lack them. Indeed, an online presence is crucial to obtaining work in certain fields.").

64 See Goode, supra note 46.

65 See Id.

John Caher Page 8 of 43 42 Fordham Urb. L.J. 233, *243 revenge porn entrepreneur and founder of now nonoperational popular revenge porn website IsAnyoneUp.com, planned to expand this exposure. 84 He expressed plans to create a website called HunterMoore.TV, which would feature victims' nude photographs on a map. 85 Moore later denied these statements and his plans may now be halted due to a federal indictment. 86 Women who experience online harassment are more likely to be victims of , 87 and this readily available personal information easily assists these disturbing crimes.

Another way these women can be threatened is by the men who possess these damaging pictures. One victim was repeatedly blackmailed by her ex-boyfriend who owned a video of them having sex. 88 He forced her on multiple occasions to engage in sexual intercourse in exchange for refraining from posting the video online [*244] or sending it to her friends and family. 89 Another woman was threatened by her former lover with a sexual video of her and another boyfriend, which he had stolen from her car. 90 He threatened that if she did not make a sexual video with him, he would email the video to her employer, and post it on pornographic websites. 91 Yet another victim's ex-boyfriend threatened that if she did not respond to his email in three days, he would post naked pictures of her online, contact her employer, and send the photographs to her daughter's father. 92 This online activity can affect a woman's offline safety, from self-infliction as well as outside parties.

B. Abstract Consequences of Revenge Pornography Online and Offline

Victims of revenge porn also experience an intangible loss in their online and offline lives. Mary Anne Franks, an Associate Professor at the University of Miami School of Law, discusses the loss of liberty many women who are victims of cyberharassment experience after being targeted. 93 Online, a woman's freedom is restricted when she is forced to avoid certain websites, change email accounts, and withdraw from online communities. 94 Franks discusses how the idea of the Internet as a community is particularly attractive for women, who feel more physically and sexually vulnerable in the outside world than men. 95 Women are empowered to create their own online existence, but when damaging information about them is posted online, it robs them of this freedom to construct their own online identity. 96 By presenting a woman in a sexual light she did not choose, it conveys the message that she is a toy for the sexual amusement of others. 97 A victim is no longer afforded protections of an

66 Id. (quoting Danielle Citron) ("It's just an easy way to make people unemployable, undatable and potentially at physical risk.").

67 See Second Amended Complaint, Lester v. Mineta, No. C-04-3074 SI, 2006 WL 1042226 (N.D. Cal. Mar. 3, 2006).

68 Leser v. Penido, 879 N.Y.S.2d 107, 108 (N.Y. App. Div. 2009).

69 Jessica Roy, A Victim Speaks: Standing Up to a Revenge Porn Tormentor, OBSERVER (May 1, 2013) [hereinafter Roy, A Victim Speaks], http://betabeat.com/2013/05/revenge-porn-holli-thometz-criminal-case/.

70 See Id.

71 See , I've Been Called the "Erin Brockovic"' for Revenge Porn, and for the First Time Ever, Here is My Entire Uncensored Story of Death Threats, Anonymous and the FBI, XOJANE (Nov. 21, 2013), http://www.xojane.com/it-happened-to- me/charlotte-laws-hunter-moore-erin-brockovich-revenge-porn.

72 See infra notes 74-81 and accompanying text.

73 See infra notes 74-81 and accompanying text.

74 Nina Burleigh, Sexting, Shame and Suicide, (Sept. 17, 2013), http://www.rollingstone.com/culture/news/sexting-shame-and-suicide-20130917.

75 Id.

76 Id.

John Caher Page 9 of 43 42 Fordham Urb. L.J. 233, *244 anonymous presence as [*245] this forced, constructed representation profoundly invades her private space and ability to dictate how she presents herself to others. 98

This intangible loss of liberty is felt offline as well because the harassing activity forces victims to change how they interact with society. 99 Women feel a fundamental violation of their trust in another, which damages their future relationships. 100 They are fired or quit their jobs because of the harassment. 101 These women fear being in public places where they could be recognized 102 or physically stalked. 103 Although revenge porn does not physically harm the victim, its effects invade the body as the victim becomes "chilled, humiliated, dirty, and above all, exposed." 104

C. The Unique Problem of Cyberharassment

While revenge porn is a fairly recent phenomenon, cyberharassment has existed for almost as long as the Internet. 105 In 1993, journalist Julian Dibbel chronicled a cyber-rape he witnessed in an online community. 106 One user forced several other users' avatars to perform vulgar sexual acts through a subprogram that allowed him to control their actions. 107 The cyber-rape produced "powerful feelings" which reached outside of the virtual world, and the offending user's account was later deleted from the program. 108

Now, cyberharassment can target actual individuals, rather than avatars. Franks notes that cyberharassment has the potential to be [*246] more damaging than harassment offline for four reasons. 109 The first is the veil of anonymity. 110 Anonymity makes it easier for harassers to target their victims, and almost impossible for victims seeking redress to track down their attackers. 111 The second reason cyberharassment may be more dangerous than offline harassment is amplification. 112 Unlike cat-callers on the street or noxious coworkers, online harassers can quickly and easily find a large audience to witness their harassment, and this audience may even take part in the abuse. 113 This is particularly prevalent in revenge porn cases, where these women often find their pictures reposted dozens or hundreds of times to pornographic websites and . 114

77 Jamie L. Williams, Teens, Sexts, & Cyberspace: The Constitutional Implications of Current Sexting & Laws, 20 WM. &MARY BILL RTS. J. 1017, 1029 (2012).

78 Sherry Capps Cannon, Omg! "Sexting": First Amendment Right or Felony?, 38 S.U. L. REV. 293, 294 (2011).

79 Mike Celizic, Her Teen Committed Suicide Over 'Sexting', TODAY (Mar. 6, 2009, 9:26 AM), http://www.today.com/id/29546030/ns/today-parenting_and_family/t/her-teen-committed-suicide-over-sexting/#.U1LPYuazDNw.

80 See Id.

81 Cannon, supra note 78 at 294-95 ("As a result of this tragedy, Jessica Logan's parents have gone public and launched a campaign 'to warn teens of the harassment, humiliation and bullying that can occur when that photo gets forwarded.'").

82 Citron, Uphill Battle, supra note 61; see also Goode, supra note 46 (discussing how one woman was stalked by a man who sat outside her house in his car).

83 See supra note 42 and accompanying text.

84 Jessica Roy, Revenge-Porn King Hunter Moore Indicted on Federal Charges, TIME (Jan. 23, 2014), http://newsfeed.time.com/2014/01/23/revenge-porn-king-huntermoore-indicted-by-fbi/; Jessica Roy,The Battle Over Revenge Porn: Can Hunter Moore, the Web's Vilest Entrpreneur Ever Be Stopped?, OBSERVER (Dec. 4, 2012, 7:46 PM) [hereinafter Roy, Battle], http://betabeat.com/2012/12/the-battle-overrevenge-porn-can-hunter-moore-the-webs-vilest-entrepreneur-be- stopped/.

85 Roy, Battle, supra note 84.

86 Id.; See infra notes 197-99 and accompanying text for further details on Moore's federal indictment.

John Caher Page 10 of 43 42 Fordham Urb. L.J. 233, *246

The third reason is permanence. 115 Offline, a hard copy of an offensive picture can be torn down or thrown away. Contrarily, once information is posted online, it is very difficult for victims of revenge porn to get it taken down. 116 Compounded with the fact that these pictures may be on hundreds of websites, victims could spend the rest of their lives scrubbing the web without ever being completely erased. The final reason that Franks cites in support of the danger of cyberharassment is virtual captivity and publicity. 117 Victims of offline harassment may be able to escape their attackers by changing their location, for example, by leaving the workplace. Revenge porn victims are afforded no such luxury, as the offending pictures can follow them to many corners of the web. Also, unlike offline sexual harassment, a victim's naked pictures can be viewed by anyone. This list can include family, clients, or co- workers, and the photographs may be accessed from anywhere that has an Internet connection. 118

D. Society's Historical Treatment of Intimate Partner Crimes

The calamitous effect of revenge porn is something that is predominately experienced by women and inflicted by their former partners. 119 Police often ignore or ridicule them. 120 Commentators [*247] blame them for the misfortune that befell them. 121 Unfortunately, society's dismissal of female suffering inflicted by their partners is nothing new. These crimes are frequently treated less seriously than other offenses, 122 and they are usually accompanied by unique evidentiary barriers that make prosecution burdensome and conviction difficult. 123

Danielle Keats Citron, professor at the University of Miami School of Law, discusses how society has historically disregarded harm suffered by women, especially when the crime was committed by their romantic partner. 124 When rape was first classified as a crime, it was prosecuted most harshly when it was committed by a stranger and when it was coupled with actual violence. 125 Citron posits that this was because this kind of rape most resembled harms to which men could relate. 126 Comparatively, when were committed by husbands or boyfriends, they were "underregulated." 127

87 WITHOUT MY CONSENT FAQS, supra note 60.

88 People v. Cavazos, No. A124274, 2010 Cal. App. Unpub. LEXIS 3420 (Cal. Ct. App. May 11, 2010).

89 Id. 90 Serrano v. Butler, No. C 06-04433 JW, 2010 U.S. Dist. LEXIS. 137617 (N.D. Cal. Dec. 20, 2010).

91 Id.

92 S.B. v. Duffy, No. A-4495-07T1, 2009 N.J. Super. Unpub. LEXIS 2334 (N.J. Super. Ct. App. Div. May 12, 2009).

93 Mary Anne Franks, Unwilling Avatars: Idealism and Discrimination in Cyberspace, 20 COLUM. J. GENDER & L. 224, 246 (2011) [hereinafter Franks, Unwilling Avatars].

94 Id.

95 Id. at 228.

96 Id. at 251-52.

97 See ROBIN WEST, CARING FOR SOCIAL JUSTICE 103 (1997) (discussing harassment on the street).

98 See Id. (discussing invasion of privacy on a woman's private sphere on a public street).

99 See Franks, Unwilling Avatars, supra note 93, at 246; see also supra Part I.A. (discussing how women are forced to change their behavior in the workplace and can become fearful of others).

100 See Laird, supra note 39, at 50. "What I really want is to be free to trust a man again," said one revenge porn victim. Id.

John Caher Page 11 of 43 42 Fordham Urb. L.J. 233, *247

The law has also lagged behind in other areas of harm originating from male romantic partners. was still legal in New York State until 1984, when the Court of Appeals, not the legislature, found the exception unconstitutional and abolished it. 128 Until the [*248] mid-1800s, the American legal system recognized the right of husbands to discipline their wives using physical force, a right derived from English common law. 129 The term "sexual harassment" did not even exist until the 1970s, even though the activity existed well before then. 130 When the term was first introduced, judges, employers, and even victims regarded it as "universal 'natural' behavior." 131 The victims of these offenses experienced a double harm as a result of the crime. The first was the harm of the actual offense, and the second was the harm in not having a law in place to vindicate the wrongdoing. 132

When statutes did provide redress for victims of gender specific crimes, the requirements for prosecution were far more burdensome than for crimes that targeted men and women equally. 133 In the nineteenth century, a rape conviction required both witness corroboration and that the prosecution prove the "utmost" physical resistance by the victim. 134 Other crimes such as theft, by contrast, had no such requirements. 135 If a robber demanded that a man give over his wallet, the man did not have to provide a witness and prove he did not fight back to the fullest in order to show he did not consent to the theft. 136

The marital rape exemption is another example of society's unequal treatment of crimes committed by a romantic partner. Today, although the marital rape exemption has been abolished nationwide, half of all states still differentiate between marital and "stranger" rape. 137 These states have heightened evidentiary requirements to prove marital rape, and authorize lower sentences for [*249] rape committed by a spouse. 138 This demonstrates that society still does not consider sexual assault by a spouse as serious as when it is committed by a stranger. 139 In reality, sexual assaults committed in a are likely the most violent, the most psychologically damaging, and are subject to more repeated attacks than rapes committed by a stranger. 140

The law has historically disregarded these intimate partner crimes, in part, because of the belief that a woman could have mitigated the harm. 141 Even in the mid-1980s, judges were unsympathetic to victims of

101 See supra notes 67-70 and accompanying text.

102 See supra text accompanying note 30 (describing how Annmarie refrained from going outside after her pictures were released).

103 See Goode, supra note 46.

104 See WEST, supra note 97, at 103 (discussing the invasion of privacy felt by a woman experiencing sexual harassment on the street). See infra Part I.C. for discussion on how online harassment can be more damaging than harassment offline.

105 Franks, Unwilling Avatars, supra note 93, at 243.

106 Julian Dibbell, A Rape in Cyberspace, VILLAGE VOICE (Oct. 18, 2005), http://www.villagevoice.com/2005-10-18/specials/a- rape-in-cyberspace/.

107 Id.

108 One of the users whose character was violated posted a public statement about the event and recalls writing it while "posttraumatic tears were streaming down her face." Id.

109 Franks, Unwilling Avatars, supra note 93, at 255-56.

110 Id.

111 Id.

112 Id. at 256.

113 Id.

John Caher Page 12 of 43 42 Fordham Urb. L.J. 233, *249 because of the commonly held belief that they could have left their husband. 142 At every stage of prosecution, [*250] members of the legal system would try to disprove rape victims' claims based on myths that "women motivated by revenge, , jealousy, , or embarrassment falsely claim rape after consenting to sex, that women fantasize about being raped, that only 'bad' women are raped, and that women provoke rape through their appearance and behavior." 143 The fact that rape laws used to require that the victim resist to the fullest demonstrates that society thought that if a woman did not do everything in her power to fight off her assailant, she was not entitled to redress. 144 Even now, some judges continue to place blame upon the victims in domestic violence 145 and rape cases. 146

E. Revenge Porn as the Latest Arena for Victim Blaming

Women who are targeted by revenge porn are merely the latest group of victims who are blamed for their unfortunate circumstances. These victims find a lack of sympathy in commentators who hold them solely responsible for their misfortunes. Critics advise women to simply abstain from taking these compromising photographs if they do not want to see themselves on these websites. Eric Goldman, a professor at Santa Clara University School of Law, stated:

[*251] Still, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice will be simple: don't take nude photos or videos. Even if you never share them with anyone, these depictions seem to have a surprising capacity to leak out (for example, there are numerous stories of IT technicians or criminal hackers obtaining photos and videos). If you decide to take nude photos or videos, never share them with anyone else. Effectively, when you do, you are gambling that person will not betray your trust for the rest of their lives. The reality is that most people aren't that trustworthy; or even if they are, it's hard to know that in advance. 147

Responding to this type of criticism, Franks points out that this is just another restriction placed on women: 148

114 See supra note 61 and accompanying text.

115 See Franks, Unwilling Avatars, supra note 93, at 256.

116 See Id. See infra Part II. A. for an in depth discussion on the difficulty of removing these photos without the assistance of these websites.

117 See Franks, Unwilling Avatars, supra note 93, at 256.

118 See Id.

119 See supra note 54 and accompanying text.

120 See supra text accompanying note 20.

121 See infra Part I.E.

122 See infra notes 124-29 and accompanying text.

123 See infra notes 133-35 and accompanying text.

124 See Citron, Law's Expressive Value, supra note 63, at 376.

125 Id. at 392.

126 Id.

John Caher Page 13 of 43 42 Fordham Urb. L.J. 233, *251

Revenge porn is primarily produced and consumed by men and primarily targets women. Revenge porn belongs to that class of activities that includes rape, domestic violence, and sexual harassment - that is, the class of activities overwhelmingly (though of course not solely) perpetrated by men and directed overwhelmingly (again, not solely) at women. Like those activities, one major effect of revenge porn is to limit women's freedom to live their lives: it punishes women and girls for engaging in activities that their male counterparts regularly undertake with minimal negative (and often positive) consequences. 149

If a person gives his keys to a mechanic so that the mechanic can fix his car, that does not give the mechanic a permanent license to now use that man's car anytime he sees fit. 150 Franks reasons that because society does not see consent as absolute in other contexts of the law, the legal system should also not view consent in revenge porn contexts as absolute. 151 Commentators do not normally blame victims of automobile theft if they trusted a valet or mechanic to only use their car keys for a limited use. 152 Comparatively, it follows that [*252] revenge porn victims should not be ostracized for sending a picture to their partner to only be viewed by that person in the context of the relationship. 153

II. THE PROBLEM OF INADEQUATE LEGAL REDRESS FOR VICTIMS OF REVENGE PORN

In 2009, Holly Jacobs' ex-boyfriend posted the naked pictures she had sent him during their relationship on a litany of revenge porn websites, accompanied by her name, email address, and specific details about where she worked and her PhD program. 154 When Jacobs discovered the photographs, she went to her local police department. 155 The police informed her that there was nothing she could do because she was over eighteen, and sent her to a state attorney's office. 156 The state's attorney refused to take her case. 157 Therefore, Holly took it upon herself to get the images taken down by filing Digital Millennium Copy Right Act (DMCA) takedown requests. 158 She "worked like a dog" but finally got nearly all of the pictures taken down. 159 Her efforts proved to be futile however, when two weeks later, the photographs were right back up on other pornographic websites. 160

127 Id. (citing WEST, supra note 97). This issue is complex, and there may be other explanations for why violent rapes were prosecuted more aggressively than those committed by a partner. For example, the violence used could be a clear indication of non-consent, which could lead to more successful convictions. Susan Estrich argues that this utmost resistance requirement operated as a substitute for the mens rea requirement, because it would put the defendant on notice that the victim did not consent. See Susan Estrich, Rape, 95 YALE L.J. 1087, 1099 (1986). If this utmost resistance was not proven, at most, the defendant would be guilty of reckless rape (if he recognized the risk of non-consent and disregarded it) or negligent rape (if he did not recognize the risk of non-consent but a reasonable man would have). See Id. at 1117 n.86. See generally Cynthia Ann Wicktom, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 GEO. WASH. L. REV. 399, 400-01 (1988) (discussing how prosecutors had difficulty proving the victim's non-consent which made them hesitant to bring cases in the first place and also made juries reluctant to find defendants guilty). In addition, men may also have been more empathetic to those "" defendants whose situations may seem more ambiguous than those committed by strangers.

128 People v. Liberta, 64 N.Y.2d 152, 163-64 (1984) ("We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.").

129 See D. KELLY WEISBERG & SUSAN FRELICH APPLETON, MODERN FAMILY LAW 309 (5th ed. 2013); see also Citron, Law's Expressive Value, supra note 63, at 376.

130 Citron, Law's Expressive Value, supra note 63, at 376.

131 Id. at 393.

132 See WEST, supra note 97, at 96.

133 Citron, Law's Expressive Value, supra note 63, at 392-93.

John Caher Page 14 of 43 42 Fordham Urb. L.J. 233, *252

Holly's story illustrates that once a photograph is posted online, it is nearly impossible to get it completely expunged from the Internet, even when the woman is the copyright owner of the photographs. 161 And when victims try to go to the police, they are laughed at, 162 not taken seriously, 163 or told there is nothing law enforcement can do if the victim is not a minor, which makes child pornography statutes not applicable. 164 In Annmarie's case, the police told her that she had to [*253] wait until a crime has actually been committed in order to intervene. 165

A. Websites Have No Incentive to Prevent Harm or Assist Victims

Victims cannot rely on cooperation from websites if they wish to get their photographs removed. Revenge porn websites have no incentive to regulate or police the activities of its users because they are legally immunized from liability due to Section 230 of the Communications Decency Act (Section 230), which does not punish websites for the content of its posters. 166 Section 230 was passed in response to the debate over the competing interests of websites supervising the activity of their users balanced against the fear of being held legally liable for the third party speech. 167 Ultimately, Congress prioritized the growth of the Internet over potential liability for website operators through its passage of Internet provider immunization under Section 230. 168

Section 230 has been read by courts to confer broad immunity to websites from the actions of its users, 169 although this immunity is not [*254] absolute. 170 Websites also have no legal obligation to assist parties in identifying the offending poster. 171 This is problematic because it is difficult for one user to track another down by herself over the Internet, 172 and websites are in the best position to mitigate the harm. 173 Websites also have no monetary incentive to aid victims. Revenge porn websites, like any business, are interested in establishing practices that deliver what their customers want. 174 These websites are thus economically incentivized to not regulate postings, and to not assist victims because this allows them to continue profiting from advertising revenues. 175

Takedown services, which are websites that advertise their ability to get a woman's intimate photographs removed from a pornographic web page if she pays them a fee, are also incentivized to foster this kind of online behavior

134 Id. at 392; see also infra note 375.

135 Citron, Law's Expressive Value, supra note 63, at 392.

136 Id. at 392-93.

137 Emily J. Sack, Is Domestic Violence A Crime?: Intimate Partner Rape As Allegory, 24 ST. JOHN'S J. LEGAL COMMENT. 535, 554 (2010).

138 See WEISBERG & APPLETON, supra note 129, at 330; see also Sack, supra note 137 at 554; supra note 127 (noting other possible explanations for this different treatment). 139 As one commentator notes: Unlike [the states that] do not recognize any difference between marital and nonmarital rape, states that require additional elements of proof continue to promote the classical idea that rape in marriage is not as bad as rape outside of marriage and that women who are subject to marital rape are 'second class victims not worthy of equal protection.'

Jessica Klarfeld, Note, A Striking Disconnect: Marital Rape Law's Failure to Keep Up with Domestic Violence Law, 48 AM. CRIM. L. REV. 1819, 1834 (2011) (noting other burdens for marital rape prosecution in some states such as shorter reporting time windows, exceptions if the victim was incapacitated or helpless, and more discretion for judicial dismissal).

140 Id. at 1828 ("Women who are raped in marriage likely suffer more psychological damage because the rape results in a sense of , the destruction of the marriage, and the possibility that such rape will continue over many years. Women will also likely suffer greater physical consequences, for they are more likely to resist the force of their husbands than that of a stranger.").

141 Citron, Law's Expressive Value, supra note 63, at 393.

John Caher Page 15 of 43 42 Fordham Urb. L.J. 233, *254 because it gives them more potential clients. 176 Similar to revenge porn websites, they are encouraged to oppose any legal proposals that would dry up business 177 as these lucrative takedown services charge about $ 250 per photo. 178 One revenge porn website, Is Anybody Down, realized a way to maximize profitability by running ads for a takedown service next to its website's revenge porn photographs. 179 It was later discovered that the revenge porn website was likely run by the same owner as the takedown service. 180

[*255] Critics of Section 230 say that failure to amend the law to exclude revenge porn websites from immunity illustrates society's dismissive attitude towards the harm suffered by victims. 181 Even though the purpose of Section 230 is to foster free speech, there are still exceptions to the rule providing First Amendment protection to website operators. 182 If a website is alerted that it is hosting copyrighted material or child pornography, it is legally mandated to take it down once notified. 183 Commentators opine that by obligating websites to respond to copyright claims but not revenge porn victims, society is expressing that it does not care about this type of suffering as much. 184 On the other hand, revenge porn websites were not prevalent when Section 230 was enacted, and the current Congress's failure to pass and amend bills may be explained by bipartisan conflict rather than lack of concern about the issue.

However, some revenge porn websites have been successfully sued on a variety of state and federal law claims. Holly Toups, along with other victims, sued revenge porn website Texxxan.com and its host, GoDaddy under state law. 185 A Texas plaintiff obtained a successful injunction against PinkMeth.com, a pornographic website, in Texas state court. 186 Website Yougotposted.com has also been sued for distribution of child pornography 187 and violation of the Copyright Act in federal court. 188 This success demonstrates that there may be some legal recourse for victims of revenge porn.

[*256] B. Legal Options Available in Actions Against a Revenge Porn Poster

142 See, e.g., New York Task Force on Women in the Courts Public Hearing 123 (May 7, 1985) (New York City) (testimony of Richard D. Huttner). Judge Richard D. Huttner, the Administrative Judge of the New York City Family Court, remembered the reactions of some of his colleagues to domestic violence victims:

I don't feel sorry for them. Why don't they just get up and leave? They have been taking these beatings all these years and now they want me to intercede. All they have to do is get out of the house. It is as simple as that. What do they want from me?

Id. A study published in 1988 found that more than seventy percent of domestic violence victims actually did try to leave home in response to their husband's violence at least one time, but successful separation failed due to inadequate resources (shelters, social services) as well as family, friends, and neighbors who did not assist these women. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 61 (1991) (citing EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS 77-78 (1988)). "[T]he assumption that the woman's first separation should be permanent ignores the real dangers that the man will seek actively--and sometimes violently--to end the separation." Id. at 62. Mahoney came up with the term "separation assault," describing a husband's violence that is in particular response to when his wife would try to leave, emphasizing that these women actually did try to leave, but were unsuccessful because of their violent partners. Id. at 65-66.

143 Christina E. Wells & Erin Elliott Motley, Reinforcing the Myth of the Crazed Rapist: A Feminist Critique of Recent Rape Legislation, 81 B.U. L. REV. 127, 148-49 (2001) (internal citations omitted). A 1980 study of 1056 jurors found that although almost all jurors (ninety-six percent) believed a woman could be raped against her will, the majority (sixty-six percent) found that rape was elicited by the victim's behavior or appearance. Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of A Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1047-48 (1991) (citing HUBERT S. FIELD & LEIGH B. BIENEN, JURORS AND RAPE 3, 54 (1980)). Thirty-four percent of the surveyed jurors thought that a woman should be responsible for preventing her own rape, and eleven percent responded that a rape victim was "asking for it" when she was raped. Id.

144 See infra note 375; supra note 134 and accompanying text.

John Caher Page 16 of 43 42 Fordham Urb. L.J. 233, *256

1. Difficulty of Securing Successful Civil Victories

There are two main civil options for victims to pursue against the unauthorized posters of their explicit images. 189 Victims can opt to recover through copyright law, where they may be able to successfully have her image removed from the offending website. The victim may also choose to pursue a claim through her state's tort law by suing for intentional infliction of emotional distress or an invasion of privacy cause of action.

The first way victims of revenge porn can recover is through federal copyright law under the DMCA. A person who is the legal holder of a copyright can commence action when another infringes upon their exclusive right by filing notice on the alleged infringer or with the court. 190 In revenge porn contexts, a woman can only bring a copyright claim when she was the one who originally took the picture or video, which would make her the copyright owner. 191 If a victim wants to get the photograph taken down through the DMCA, another condition must be met: the website server must be in the United States. 192 But even if a woman is successful in getting one photograph taken down, it can still be reposted to dozens of other websites, and the victim could spend the rest of her life filing DMCA requests without ever having the image fully expunged from the web. 193

Victims of revenge porn can also sue under their respective state's tort law, as Holly Toups did in her suit against Texxxan.com and GoDaddy. 194 They can allege an invasion of privacy based upon the theory of "intrusion upon seclusion." 195 To prevail in this case, the [*257] victim must prove that the poster intentionally intruded upon her private affairs, and that the intrusion would be highly offensive to a reasonable person. 196 Every state except North Dakota and Wyoming has its own intrusion upon seclusion tort, which incorporates these elements. 197 While most would find that having naked pictures posted of themselves online an invasion of privacy, the strong language of the statute ("intentionally" and "highly offensive") are large obstacles that can be difficult to prove at trial. 198

Victims pursuing tort claims in response to revenge porn can also allege that revenge porn constitutes "public disclosure of private facts." 199 To bring this type of claim successfully, the revenge porn victim must prove that

145 See Citron, Law's Expressive Value, supra note 63, at 410 (citing FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN LAW 386 (2009)) ("Despite clear changes in the law, some judges continued to marginalize domestic victims because victims could just 'get up and leave.'").

146 See Alan Wagmeister, Judge Apologizes for Comments, KULR8.COM (Aug 28, 2013), http://www.kulr8.com/story/23283360/judge-apologizes-for-comments. The judge presiding over a case of a fourteen-year-old girl who was raped by her teacher and later committed suicide said that the victim was "older than her chronological age" and was "as much in control of the situation" as the teacher.Id. The judge later apologized for his comments. Id.

147 Eric Goldman, What Should We Do About Revenge Porn Sites like Texxxan?, FORBES (Jan. 28, 2013) [hereinafter Goldman, Revenge Porn Sites like Texxxan], http://www.forbes.com/sites/ericgoldman/2013/01/28/what-should-we-doabout- revenge-porn-sites-like-texxxan/.

148 Mary Anne Franks, Adventures in Victim Blaming: Revenge Porn Edition, CONCURRING OPINIONS (Feb 1, 2013) [hereinafter Franks, Victim Blaming], http://www.concurringopinions.com/archives/2013/02/adventures-in-victim-blamingrevenge- porn-edition.html#sthash.NuP1KP4J.dpuf.

149 Id.

150 See Id. (comparing an example of and consent to using one's credit card).

151 See Id.

152 Id.

153 Id.

John Caher Page 17 of 43 42 Fordham Urb. L.J. 233, *257 the defendant publicized an element of her private life that would be highly offensive to a reasonable person and is not a legitimate public concern. 200 This tort is disfavored in many states because of the concern for individuals' First Amendment right to uncensored speech. 201 However, only Indiana and North Carolina have explicitly rejected recognizing the tort of public disclosure of private facts. 202

Revenge porn victims suing in tort can also invoke the theory of "intentional infliction of emotional distress." 203 To prevail, the victim must establish that the defendant's conduct was extreme and outrageous, and that he acted at least recklessly to cause her severe [*258] emotional distress. 204 Similar to the other tort claims, the statute imposes high burdens for the victim to overcome through its strong language, which may prevent revenge porn victims from successfully obtaining relief.

However, commencing any of these claims presents several problems for victims. The first is that filing a claim takes not only time, but also money. Women could accumulate tens of thousands of dollars in legal fees without ever seeing a result. 205 Victims may also have a difficult time finding a lawyer to take their case, as one lawyer estimates there are only four or five in the country who take on revenge porn cases. 206 Even if the victims were able to surmount these hurdles and begin legal proceedings, defendants often do not have enough money to make a lawsuit worth the expense. 207

Women may also be reluctant to pursue civil redress because it may increase publicity surrounding the intimate photographs. 208 Additionally, prosecution could renew the original rage in their ex to repost the pictures on different websites. The case may also attract new viewers to the embarrassing photos, which could deter victims from coming forward.

154 Holly Jacobs, A Message From Our Founder, Dr. Holly Jacobs, CYBER C.R. INITIATIVE (Oct. 6, 2013), http://www.cybercivilrights.org/a_message_from_our_founder_dr_holly_jacobs.

155 Roy, A Victim Speaks, supra note 69.

156 Id.

157 Id.

158 Id.

159 Id.

160 Id.

161 Generally, the creator of the work owns the copyright. See 17 U.S.C. § 201(a) (2012); Univ. of Tex. Libraries, Who Owns What?, COPYRIGHT CRASH COURSE, http://copyright.lib.utexas.edu/whoowns.html.

162 See supra note 20 and accompanying text.

163 See supra text accompanying note 12.

164 See supra note 154 and accompanying text. This Note specifically addresses recourse for a victim over eighteen. When the victim is under eighteen, the state is able to charge the defendant with child pornography statutes. See Willard, supra note 53, at 545 (discussing the prosecution of a Wisconsin teen who posted pictures of his ex-girlfriend. He was charged with "criminal libel, possession of child pornography, sexual exploitation of a child and causing mental harm to a child" and ultimately pled guilty to causing mental harm to a child). See Id. at 546-47, for various cases where teenagers were charged with child pornography for disseminating nude or semi-nude images of another teen.

165 Chiarini, supra note 2.

166 47 U.S.C. § 230(c)(1) (2012) ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.").

John Caher Page 18 of 43 42 Fordham Urb. L.J. 233, *258

2. Other Criminal Statutes Can Only Help in Limited Circumstances

Beyond copyright and tort law, victims of revenge porn can try to get law enforcement to prosecute their offenders through several [*259] criminal statutes. These statutes include cyberstalking statutes, cyberharassment statutes, blackmail statutes, and hacking statutes. a. Cyberharassment and Cyberstalking Statutes

The first criminal avenue that may be utilized is cyberstalking or cyberharassment statutes. 209 Federally, it is a crime to use interstate commerce to transmit an obscene image with the intent to "abuse, threaten, or harass another person." 210 The federal cyberstalking statute also makes it a crime to use any electronic communication with the intent to harass someone, intimidate them, or place them under surveillance when their conduct causes substantial emotional distress to a person. 211 All fifty states have adopted their own cyberstalking and/or cyberharassment statutes. 212

Cyberstalking or cyberharassment statutes may be inadequate for victims of revenge porn because the state often has to show that the photographs are part of a larger pattern indicative of the defendant's willingness to stalk or harass her. 213 The prosecution would also be required to prove that the defendant posted the photographs with the intent to harass, abuse, or threaten the subject. 214 Defendants could easily claim they were motivated by other desires: fame, money, or fulfilling their own sexual fantasies. 215 Of course, juries may not [*260] believe this argument. At the very least, proving intent would be difficult in this context compared with crimes which have a more objective manifestation of the defendant's intent. 216 b. Blackmail Statutes

The second criminal statute prosecutors can use against revenge porn posters is a blackmail statute, when the poster first threatens the victim. Like Annmarie, many victims of revenge porn are first threatened by their ex-

167 Bryan H. Choi, The Anonymous Internet, 72 MD. L. REV. 501, 530-31 (2013).

168 Id. at 531.

169 See Barrett v. Rosenthal, 40 Cal. 4th 33, 39 (Cal. 2006) ("[Section 230] ha[s] been widely and consistently interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source."). The California Supreme Court further expressed it was restricted in its decision: "We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement." Id. at 40; see also Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003) ("[Section] 230(c) as a whole makes ISPs indifferent to the content of information they host or transmit: whether they do (subsection (c)(2)) or do not (subsection (c)(1)) take precautions, there is no liability under either state or federal law. As precautions are costly, not only in direct outlay but also in lost revenue from the filtered customers, ISPs may be expected to take the do-nothing option and enjoy immunity under § 230(c)(1)."); Zeran v. Am. Online, Inc., 129 F.3d 327, 332 (4th Cir. 1997) (holding that the plaintiff's claim was barred against AOL under Section 230, because Internet Service Providers are exempt from liability for actions of a third party).

170 See infra notes 182-83 and accompanying text.

171 Bartow, supra note 40, at 45.

172 Choi, supra note 167, at 530 ("The Internet's architectural protocols do not provide an easy way for one user to identify other users.").

173 Citron, Uphill Battle, supra note 61.

174 Cf. Bartow, supra note 40, at 45.

John Caher Page 19 of 43 42 Fordham Urb. L.J. 233, *260 boyfriend before he leaks her private photographs. 217 In one instance of blackmail, an Oklahoma State student videotaped himself and his nineteen-year-old girlfriend during sexual intercourse. 218 After she ended the relationship, he threatened to post the video online unless she agreed to continue to have sex with him. 219 She went to the police, and he was later charged with felony blackmail. 220

Posters can be charged with blackmail at the federal 221 and state levels. 222 However, these statutes do not apply to users who did not first threaten their former lovers before posting the picture. 223 And, as demonstrated by the story of Annmarie, even when girls do go to the police after being threatened, these statutes are not always utilized. 224 Thus, blackmail statutes appear to be mostly ineffective at combating non-consensual pornography. c. Anti-Hacking Statutes

The third criminal law that can be used against some revenge porn posters is an anti-hacking statute. As discussed in Part I, notorious revenge porn entrepreneur Hunter Moore was indicted at the end of [*261] 2013 on and computer hacking charges for allegedly directing a co-conspirator to break into private email accounts in order to obtain nude photographs for his website. 225 Moore and his co-conspirator were charged under federal statutes prohibiting fraud with connection to computers 226 and aggravated identity theft. 227 These statutes prohibit accessing another's computer without permission and subsequently acquiring information from that protected computer, as well as transferring this information. 228 However, this statute would not apply to those individuals who had a picture sent to them, or those who originally took the photo. Moore's infamy likely attracted investigation, but low-level hackers may escape prosecution due to the difficulty of tracking people over the Internet. 229 d. Problems with Criminal Statutes Currently Available to Revenge Porn Victims

One of the problems with currently available statutes prohibiting cyberharassment, blackmail, and hacking is their lack of enforceability. 230 Even though victims may be able to recover through one of the current remedies, police

175 See Id.

176 Ann Bartow, Internet Defamation as Profit Center: The Monetization of Online Harassment, 32 HARV. J.L. & Gender 383, 391 (2009).

177 Id. at 392.

178 See Jessica Roy, We Will Take Down This Photo of Revenge Porn Proprietor Craig Brittain if he Pays Us $ 250, OBSERVER (Feb. 6, 2013, 4:05 PM), http://betabeat.com/2013/02/we-will-take-down-this-photo-of-revenge-pornproprietor- craig-brittain-if-he-pays-us-250/.

179 See infra note 180.

180 See, e.g., Victims of Revenge Porn Mount Class Action Suit Against GoDaddy and Texxxan.com, OBSERVER (Jan. 1, 2013 10:58 AM), http://betabeat.com/2013/01/victims-of-revenge-porn-mount-class-action-suit-againstgodaddy-and-texxxan- com/. "[Is Anybody Down]'s Takedown Hammer claims to be operated by a New York-based lawyer named David Blade, III, but no such name appears in the New York State Unified Court System's attorney database."Id. "Las Vegas attorney Marc Randazza and other bloggers established that "Blade" did not exist and was likely the same person who ran IsAnybodyDown. Both sites are now offline." Laird, supra note 39, at 47.

181 Danielle Citron, The Importance of Section 230 Immunity for Most, CONCURRING OPINIONS (Jan. 25, 2013), http://www.concurringopinions.com/archives/2013/01/the-importance-of-section-230-immunity-for-most.html.

182 Emily Bazelon, Why Do We Tolerate Revenge Porn?, SLATE (Sept. 25, 2013), http://www.slate.com/articles/double_x/doublex/2013/09/revenge_porn_legislation_a_new_bill_in_california_doesn_t_go_far_e nough.html.

John Caher Page 20 of 43 42 Fordham Urb. L.J. 233, *261 are not always aware of how they apply. 231 This may lead officers to tell women to wait until a crime occurs offline: 232

[*262] [T]he trivialization of cyber gender harassment has an unfortunate consequence: the underenforcement of criminal law. Targeted individuals often refrain from reporting cyberharassment to authorities, fearing it will not be taken seriously. Law-enforcement agencies refuse to pursue cyberharassment complaints on the grounds that the conduct is legally insignificant, in much the same way that prosecutors once refused to file charges in cases involving gender-specific sexual assaults such as domestic violence and rape. Law's underenforcement may be due to the absence of training about cyberharassment. 233

This lack of education for police officers about current cyber-harm statutes (which may not apply to many victims), 234 compounded with the difficulty of finding an anonymous user without a website's help, gives victims little hope that anyone will be held responsible for their harm. 235

3. Criminal Laws Directly Addressing the Problem of Revenge Porn

To date, six states have adopted anti-revenge porn legislation, but they generally fall into two categories of statutes: ones that follow the New Jersey model and ones that follow the California model. 236 New Jersey and California were the first two states with statutes prosecutors could utilize to combat revenge porn, but each state differs significantly in its statutory requirements. 237 Florida has already considered a revenge porn bill, but it failed to pass. 238 Internationally, France criminalized "taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned," 239 and in 2014, banned online distribution of sexual pictures or videos without the subjects' consent, which carries a sentence of up to five years in prison. 240

183 Id.

184 Id.; see also Citron, Uphill Battle, supra note 61.

185 See Plaintiffs' Original Petition for Damages and Class Action Certification, a Temporary Injunction and a Permanent Injunction, Toups v. GoDaddy.com, No. D130018-C, 2013 WL 271500 (Tex. Dist. Jan. 18, 2013) (suing for, inter alia, intentional infliction of emotional distress, intrusion upon seclusion, and public disclosure of private facts).

186 Conklin v. Katz Global Media, Register of Actions, No. 2012-61554-393, available at http://justice1.dentoncounty.com/PublicAccessDC/CaseDetail.aspx?CaseID=2083916. 187 Complaint, Talley v. Chanson, No. 3:13CV01238, 2013 WL 2443985 at *1 (S.D. Cal. May 28, 2013). 188 Complaint, Middleton v. Bollaert, No. 13-11968-cv, 2013 WL 2107327 (E.D. Mich. May 2, 2013).

189 Even though posters usually ruin their victims' reputations, defamation is not an available legal avenue for victims because truth is always an absolute defense to these claims, and the victims are the ones in the photos. Substantial Truth, DIGITAL MEDIA L. PROJECT, http://www.dmlp.org/legal-guide/substantial-truth (last updated July 22, 2008).

190 17 U.S.C. § 501(b) (2012).

191 Generally, the creator of the work owns the copyright. See 17 U.S.C. P 201(a) (2012); Univ. of Tex. Libraries, supra note 161; see also Franks, A Quick Guide, supra note 38.

John Caher Page 21 of 43 42 Fordham Urb. L.J. 233, *262

[*263] a. New Jersey Model

New Jersey was the first state to enact a statute that allowed for the criminal prosecution of revenge porn distributors, although this was probably not the original purpose of the statute when it was passed a decade ago. 241 The relevant portion of the statute criminalizes disclosure of a "photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure." 242 New Jersey divides crimes by degrees, ranging from first to fourth instead of misdemeanors and felonies. 243 The non- consensual disclosure of sexual photographs or videos in New Jersey is a crime in the third degree, 244 punishable for up to five years in prison or a $ 30,000 fine, which is comparable to a felony in other states. 245

The New Jersey State Senate Committee, which passed the legislation, focused on the non-consensual recording and observation aspects of the statute, 246 rather than the non-consensual disclosure. 247 [*264] The legislative history illustrates the state senate committee's recognition of individuals' over these private moments. 248 The committee noted, "[t]his [bill] recognizes that people have a right to control the observation of their most intimate behavior under circumstances where a reasonable person would not expect to be observed." 249

A major advantage of the New Jersey statute over other revenge porn statutes is it lacks the "intent to harass" requirement that other state and federal statutes mandate. 250 This closes the loophole for defendants claiming that they were not motivated by a desire to humiliate or harass the victim, but posted or sent the photographs for purely personal reasons. Instead, the New Jersey statute is aimed at whether the person knew they were not licensed or privileged to disclose the intimate images without the depicted person's consent. 251

It is still unsettled whether or not New Jersey's statute violates the First Amendment. 252 It may do so because it distinguishes content based on the sexual nature of the picture or recording, and content-based distinctions require

192 See Laird, supra note 39, at 49 ("[F]oreign websites don't care about DMCA takedown notices. Indeed, several sites have reportedly moved to overseas hosts to avoid legal consequences in the U.S."). Websites sometimes ignore takedown requests because they do not fear liability. See supra Part II. A.

193 Laird, supra note 39, at 49.

194 See supra note 185 and accompanying text.

195 RESTATEMENT (SECOND) OF TORTS § 652B (1977).

196 According to the Second Restatement of Torts, a violator of Intrusion upon Seclusion is "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, [and] is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Id.

197 Tigran Palyan, Comment, Common Law Privacy in a Not so Common World: Prospects for the Tort of Intrusion Upon Seclusion in Virtual Worlds, 38 SW. U. L. REV. 167, 180 n.106 (2008) (citing Hougum v. Valley Mem'l Homes, 574 N.W.2d 812, 816 (N.D. 1998) and Jewell v. N. Big Horn Hosp. Dist., 953 P.2d 135, 139 (Wyo. 1998)).

198 See supra note 196 and accompanying text.

199 RESTATEMENT (SECOND) OF TORTS § 652D (1977).

200 According to the Second Restatement of Torts, a violator of public disclosure of private facts is "[o]ne who gives publicity to a matter concerning the private life of another [and] is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Id.

201 123 AM. JUR. Trials 433 § 7 (2012).

John Caher Page 22 of 43 42 Fordham Urb. L.J. 233, *264 a higher level of scrutiny. 253 However, the [*265] law is still in effect and is currently used to charge individuals posting scandalous pictures of their former partners on the Internet. 254

Idaho passed a bill similar to the New Jersey statute in March 2014. The statute makes it a felony to distribute intimate pictures of another when the actor knew or should have known that at least one party understood that the image was to remain private. 255 Instead of enacting an entirely new law, the Idaho legislature opted to amend and expand their existing video voyeurism law to encompass revenge porn offenders. 256 Although the statute has one element dissimilar to the New Jersey statute, that the defendant know that the parties agree that the photograph should remain private, 257 it does not have other requirements that states like California impose, which could enable defendants to escape liability. 258

Wisconsin quickly followed Idaho's lead and passed its own antirevenge porn statute in April 2014. 259 The law criminalizes posting sexual or nude photographs of another when the actor knows he or she does not have the consent of the subject of the photo. 260 The offense is a Class A misdemeanor. 261 This law parallels the New Jersey statute in its lack of intent requirement and focus on knowledge of consent. b. California Model

California criminalized nonconsensual pornography in October 2013. 262 Unlike New Jersey, California's law was passed to directly [*266] address the growing problem of revenge porn. 263 In particular, the law prohibits: Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress. 264

The offense is classified as a misdemeanor. 265

202 Id. (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 693 (Ind. 1997) and Hall v. Post, 372 S.E.2d 711, 712 (N.C. 1988) in which both courts decline to adopt the tort of publicizing private facts).

203 RESTATEMENT (SECOND) OF TORTS § 46 (1965).

204 According to the Second Restatement of Torts, a person guilty of outrageous conduct causing severe emotional distress is "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another [and] is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Id. However, a recent plaintiff in Texas obtained a $ 500,000 judgment for emotional distress. Brian Rodgers, Jury Awards $ 500,000 in 'Revenge Porn' Lawsuit, HOUS. CHRON. (Feb. 21, 2014), http://www.houstonchronicle.com/news/houston- texas/houston/article/Jury-awards-500-000-in-revenge-porn-lawsuit-5257436.php.

205 Cale Guthrie Weissman, Infographic: The Laws Are Imperfect, but Here's What Revenge Porn Victims Can Do, PANDODAILY (Oct. 8, 2013), http://pando.com/2013/10/08/infographic-the-laws-are-imperfect-but-heres-what-revenge-porn- victims-can-do/.

206 Laird, supra note 39, at 49 (quoting revenge porn lawyer Marc Randazza, "[N]ot too many lawyers do this work. 'There are only about four or five of us in the whole country[.]'").

207 Id. at 50.

208 Danielle Citron, How to Make Revenge Porn a Crime, SLATE (Nov. 7, 2013), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/making_revenge_porn_a_crime_without_trampling_free _speech.html.

209 See infra notes 210-11 and accompanying text.

John Caher Page 23 of 43 42 Fordham Urb. L.J. 233, *266

California's law has an advantage over New Jersey's statute because the law applies even if the photograph was originally taken with consent. 266 The ACLU originally fought an earlier version of the statute, claiming that it would infringe upon individual constitutionally protected free speech rights. 267 However, the organization withdrew their opposition after the currently effective version was proposed. 268

Despite the advantages California's law presents over the New Jersey model, journalists have pointed to several of the statute's shortcomings. The main concern is that the law only applies to defendant distributors who were also the original photographer. 269 If the victim took a picture of herself and sent it to her boyfriend, who subsequently forwarded or posted it, the law would not apply. 270 The statute also does not apply to hackers who redistribute pictures after [*267] breaking into a victim's phone or computer. 271 These two exceptions leave the majority of defendants untouchable by the law. Holly Jacobs estimates that of the thousand victims that have contacted her through her website, EndRevengePorn.com, eighty percent took the offending pictures themselves. 272

Another issue the California statute presents is that the prosecution must prove that the defendant intended to cause serious emotional distress, and that the victim suffered serious emotional distress. 273 As discussed in Part II, proving the defendant's rationale for disseminating the nude photographs can create an easy loophole for men to claim that they were simply seeking fame or money, and not the humiliation of their ex-partner. 274 Further, requiring the prosecution to show that the victim suffered emotional distress would likely require her to testify in court and face cross examination about her traumatic experience. 275 This element may further discourage women from coming forward, as the publicity from their testimony may put their photographs in the spotlight and encourage more traffic to offending websites.

Mary Anne Franks criticized the emotional distress provision, stating, "[t]his is a crime against the state. . . so the victim should not have to show damages." 276 The problem with Franks' argument is that criminal law frequently requires prosecutors to prove the victim suffered some harm. 277 For example, in New York, to be convicted of assault, the state must prove the defendant caused physical injury to another, requiring the prosecutor to show

210 47 U.S.C. § 223 (2012) ("(a) Prohibited acts generally Whoever-- (1) in interstate or foreign communications-- (A) by means of a telecommunications device knowingly-- (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, with intent to annoy, abuse, threaten, or harass another person.").

211 18 U.S.C. § 2261A (Supp. 2013) ("Whoever-- (2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that-- (A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A), shall be punished as provided in section 2261(b) of this title.").

212 State Cyberstalking and Cyberharassment Laws, NAT'L CONF. ST. LEGIS., http://www.ncsl.org/research/telecommunications-and-information-technology/cyberstalking-and-cyberharassment- laws.aspx#Overview (last updated Dec. 5, 2013).

213 Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper 4 (Cyber C.R. Initiative, 2013) [hereinafter Franks, Working Paper], available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336537&download=yes.

214 See 18 U.S.C. § 2261A; 47 U.S.C. § 223.

215 Franks, A Quick Guide, supra note 38. 216 For example, prosecutors usually have an easier time proving that offenders of violent crimes intended to harm the victim.

217 See supra notes 88-92 and accompanying text.

John Caher Page 24 of 43 42 Fordham Urb. L.J. 233, *267 physical injury in a victim. 278 The difference between the statutes in California and New [*268] Jersey is that New Jersey punishes the actual act of disseminating compromising photographs if the distributor knows he does not have permission. 279 California, on the other hand, focuses on punishing the same action only when it has negative results. 280

Another criticism of the California statute is the fact that the image must be taken "under circumstances where the parties agree or understand that the image shall remain private. . . ." 281 This may lead to disputes over what the parties' understanding was over the level of privacy the picture was to be afforded. 282 And in the confines of the intimate settings, where these photographs are usually taken, it is difficult to know what actually transpired between two parties. 283 As such, the California statute has too many pitfalls in order to be effective against the majority of revenge pornography defendants.

Virginia and Utah passed statutes similar to California's, where they both have intent requirements that accompany the offense. Virginia recently passed a bill making it unlawful for anyone to maliciously distribute sexualized images of another person without license to do so and with "intent to coerce, harass, or intimidate. . . ." 284 The offense is classified as a Class 1 misdemeanor. 285 Utah became the sixth state to criminalize revenge porn, in a statute which makes it unlawful to distribute an "intimate image" of another with "intent to cause emotional distress" if three other conditions are met. 286 First, the offender must know that the individual depicted did not consent to dissemination. 287 Second, the photograph must have been taken in a situation where the depicted individual had a reasonable expectation of privacy. 288 Last, the subject of the photograph must have actually suffered serious emotional distress. 289 [*269] While these statutes do not have every limitation of California's (for example, the laws apply whether or not the poster was also the photographer), the intent requirement is still a serious enough loophole that it may be a barrier to convictions. c. Failed Revenge Porn Legislation in Florida

218 Franks, Unwilling Avatars, supra note 93, at 239.

219 Id.

220 Id. The student later pled guilty to disorderly conduct. Id.

221 See 18 U.S.C. § 873 (2012) ("Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.").

222 See Paul H. Robinson et. al., Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory, 89 TEX. L. REV. 291, 308 (2010). All states have some form of a blackmail statute, although the requirements differ by jurisdiction. See Id. 308-12.

223 See supra note 210-11.

224 See supra text accompanying notes 11-12.

225 Indictment, United States v. Moore, No. CR13-0917 (C.D. Cal. Oct. 2013), available at http://www.wired.com/images_blogs/threatlevel/2014/01/revenge-porn-Moore-Evens-indictment.pdf.

226 18 U.S.C. § 1030(a)(2)(C) (2006) ("Whoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer . . . shall be punished as provided in subsection (c) of this section."). Moore was charged under the provision dictating punishment when the information is used for commercial gain. Indictment, Moore, No. CR13-0917.

227 18 U.S.C. § 1028A(a)(1) (2006) ("Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.").

John Caher Page 25 of 43 42 Fordham Urb. L.J. 233, *269

Florida has already presented revenge porn legislation, which failed in May 2013. 290 The proposed bill was limited in the types of activity it criminalized. First, it required that the sexual photograph also be accompanied by personal information about the subject. 291 While this element is present in many cases, the statute would not apply to photographs posted by themselves, without the victim's name or address. 292 Although the statute was probably aimed at the photographs, which could be the most damaging to victims' reputations, even without this information, if the victim's face is in the image, she would still be easily identifiable to others. 293 The other problematic requirement for revenge porn victims is that the Florida bill only applied to pictures posted over social media. 294 This would exempt individuals who emailed, texted, or mailed their photographs, which can still do a significant amount of damage to victims and their reputations. 295 The bill failed due to free speech concerns, 296 but a new law may be forthcoming. 297

[*270] d. The Lack of Federal Legislation Addressing Revenge Porn

No federal statute currently exists that directly addresses the problem of revenge porn. Anti-revenge porn advocates stress the need for the recognition of this crime on a federal level because cyber crimes mostly occur across state lines. 298 Additionally, if an injunction against a photograph were ordered in one state, it could easily be uploaded in another. 299 Federal regulation of revenge porn would be particularly advantageous in light of the barriers posed by Section 230. Though Section 230 trumps any state criminal law, if a federal criminal law went into effect, websites could face liability for posting revenge porn. 300

California House Representative Jackie Speier intends to introduce a federal bill targeted at revenge porn. 301 The proposed legislation has not been finalized and has details pending, such as the maximum punishment. 302 Mary Anne Franks is participating in drafting the legislation. 303 "If disseminating 'revenge porn' becomes a federal crime, websites would not be able to raise the special Section 230 defense that intermediaries are sometimes able to raise with regard to other unlawful activity," she stated. 304

228 See Id.; see also 18 U.S.C. § 1030(a)(2)(C).

229 See supra note 172 and accompanying text.

230 See Franks, Unwilling Avatars, supra note 93, at 259.

231 See Laird, supra note 39, at 48 ("But Westby has also found, in her work as a consultant on online privacy and security, that law enforcement isn't fully aware of how existing laws might apply. With one client who was being cyberstalked, she had to convince the police that criminal laws apply.").

232 See Citron, Law's Expressive Value, supra note 63, at 402-03 ("Officers are often either incapable of properly investigating harassment or unwilling to do so until it has traveled offline. Officers often advise victims to ignore the cyberharassment until that time.").

233 Id. at 402.

234 See supra note 213-16 and accompanying text.

235 See Franks, Unwilling Avatars, supra note 93, at 259.

236 See infra Parts II. B.3.a-b.

237 See Id.

238 See infra Part II. B.3.c. 239 CODE PÉNAL [C. PÉN.] art. 226-1-2c (Fr.).

John Caher Page 26 of 43 42 Fordham Urb. L.J. 233, *270

[*271] e. Arguments Against Criminalizing Revenge Porn Legislation

The first issue with criminalizing nonconsensual pornography is that it may be difficult to track down the offending user if he hides his identity, especially without the aid of the website. 305 Second, while in criminal cases victims do not expend time and money suing the defendant, there is the same problem present in civil cases of the possibility of an increase in publicity. 306 Because revenge porn is a violation of privacy, bringing suit could exacerbate the victim's harm by further degrading their personal lives. 307

Third, Eric Goldman, a professor at Santa Clara University School of Law, is skeptical that new laws would provide any additional relief to victims that do not already exist in our current anti-harassment and anti-stalking statutes. 308 He also argues that society will eventually adjust our social norms: as nude photographs become more ubiquitous, the less novel they will be and less of a "taint" will be associated with them. 309 Goldman posits that we will eventually develop a type of "blindness" to these sexual depictions. 310 He compares revenge porn websites to the website Zillow, where individuals can look up the value of their neighbor's house. 311 Goldman asserts that it is now "bad etiquette" to look up the value of a friend's home, or at least to bring it up publicly, and the same will eventually be true for revenge porn websites. 312 He urges that if society can wait until views shift to this kind of understanding, it will not need any new laws to punish this behavior. 313

Goldman's argument parallels one that commentators have made concerning future political candidates' debaucherous online photographs. 314 While a scandalous picture of a politician is shocking now, in a few decades, younger generations may not have the same [*272] shaming instinct that exists today. 315 James Lull, a communications professor at San Jose University stated, We're in kind of a cultural transformation right now. . . It's a relatively slow process in political terms. But culturally we're going to get used to this. So I'm not sure the 'Oh my God!' feelings we're getting today will be the same on down the line. I think there's going to be an erosion to the impact. 316

240 Jonathan Lis, Israel Bans Posting Nude Photos, Sex Films Online, HAARETZ (Jan. 6, 2014, 9:22 PM), http://www.haaretz.com/news/national/1.567356.

241 See infra note 242 (statute became effective in 2004).

242 N.J. STAT. ANN. § 2C:14-9(c) (West 2004). An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $ 30,000 may be imposed for a violation of this subsection.

Id.

243 See N.J. STAT. ANN. § 2C:1-4(a) (West 1981) ("An offense defined by this code or by any other statute of this State, for which a sentence of imprisonment in excess of 6 months is authorized, constitutes a crime within the meaning of the Constitution of this State. Crimes are designated in this code as being of the first, second, third or fourth degree.").

244 N.J. STAT. ANN. § 2C:14-9(c).

245 O'Connor, supra note 45. This would make the offense a felony in other states. See, e.g., Habitual Felon and Previous Convictions from New Jersey, N.C. CRIM. L. (Feb. 11, 2013), http://nccriminallaw.sog.unc.edu/habitual-felon-and-previous- convictions-from-new-jersey/. 246 The observation and recording provisions are as follows:

John Caher Page 27 of 43 42 Fordham Urb. L.J. 233, *272

The logic is that if everyone has embarrassing online pictures, whether they be drunken Facebook photographs or nude photographs of themselves, the stigma will vanish. 317 However, this may be "overly optimistic." 318

A fourth argument against new laws criminalizing revenge porn is that several revenge porn websites have already been shut down, which could signal the possibility of the approaching extinction of all revenge porn websites. 319 Goldman argues that many of these controversial websites get shut down rather quickly, after succumbing to public pressure, bad publicity, unhappy advertisers, or even legal risks. 320 If these websites will naturally buckle on their own accord, this evidences that current laws may be sufficient to combat the problem. 321 f. First Amendment Concerns

The biggest hurdle new anti-revenge porn legislation faces is the free speech concerns arising under the First Amendment. 322 Two [*273] views have emerged regarding the rights of an individual to disseminate sexually explicit photographs of another without their consent. One analysis of the issue is that anti-revenge porn statutes violate the First Amendment; an opposing view is that revenge pornography is not protected free speech.

Those arguing that revenge porn restriction would curtail free speech point to the fact that even sexually graphic interests, short of obscene, are protected by the First Amendment. 323 The Supreme Court has consistently held individuals' First Amendment rights in the highest regard, even when the speech expressed is of the most unpleasant character. 324 Additionally, the photographs could be found to have artistic value, which is protected by the First Amendment. 325

The opposing view does not see the nonconsensual disclosure of another's intimate photographs as a First Amendment right. The reasoning is that the photographs are not proffered as matters affecting public discourse, and are of a purely private concern. 326 Private matters, this side argues, do not warrant the same type of First [*274] Amendment protection as concerns affecting the public, because this type of speech does not add value to society. 327 Another way revenge porn could escape First Amendment protection is if it were classified as a type

a) An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed. b) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

N.J. STAT. ANN. § 2C:14-9(a)-(b). 247 S. Comm. Statement, 210th Leg., S.B. 2366 (N.J. 2003).

248 Id. The law was used to prosecute Tyler Clementi's college roommate, Dharun Ravi. John A. Humbach, Privacy and the Right of Free Expression, 11 FIRST AMEND. L. REV. 16, 18 (2012). Clementi asked Ravi if he could have use of their dorm room privately for a few hours. Id. Ravi agreed, but unbeknownst to Clementi, Ravi left his laptop open with his built-in webcam on and used it to stream Clementi's sexual encounter with another male at school without Clementi's consent or knowledge. Id. Tragically, Clementi committed suicide a few days later. Id. 249 N.J. S. Comm. Statement, 210th Leg., S.B. 2366.

250 Cf. N.J. STAT. ANN. § 2C:14-9.

251 N.J. STAT. ANN § 2C:14-9(c).

252 See infra note 253.

John Caher Page 28 of 43 42 Fordham Urb. L.J. 233, *274 of recognized unprotected speech. "Historically and traditionally, such depictions would likely have been seen as unprotected obscenity," said Eugene Volokh, a law professor at UCLA School of Law, whose focus is First Amendment studies. 328

A few commentators have voiced concerns about the impact of revenge porn legislation on censoring one recently prevalent exercise of free speech: exposure of public officials. A recent example of this phenomenon is the recent scandal concerning former congressman Anthony Weiner, who sent nude photographs to a college student. 329 The concern is that the college student would be vulnerable to prosecution, which may deter him or her from sharing these pictures. 330 However, these concerns may not be problematic because photographs of public officials would probably constitute a matter affecting public discourse. 331 Because the public has a legitimate interest in learning about the character of their representatives, published sexual photographs of them may be protected under the First Amendment. 332

The connection between revenge porn and the First Amendment is a gray area, as revenge porn is not strictly political, high-value speech, which would warrant First Amendment protection, or even commercial speech, which is less protected. The Supreme Court will have to resolve this debate, as there are valid arguments on both sides of the issue, and no precedent directly on point. Specific revenge porn legislation faces legal hurdles and practical critiques, but it is [*275] most likely the preferable avenue for victims seeking criminal punishments for their offenders.

III. REVENGE PORN SHOULD BE CLASSIFIED AS A SEXUAL OFFENSE

Victims of revenge pornography should not be forced to wait until society begins to accept sexually graphic images of their neighbor as commonplace, which, according to Goldman, is when the sting of stigmatization will evidently evaporate. 333 Goldman does not speculate how long this shift in acceptance will take. However, it is safe to say that waiting for a society to completely alter its understanding of an issue will not happen overnight. Simply waiting

253 See Humbach, supra note 247, at 22-23 (internal quotations omitted) ("This statute is a content-based regulation of expression because it prohibits disclosures involving only certain kinds of content (intimate exposure, sexual penetration, or sexual contact). Regulations that discriminate based on content are normally invalid, unless they can pass strict scrutiny. The strict-scrutiny standard requires that a content-based regulation be narrowly tailored to promote a compelling Government interest, and there must not be a less restrictive alternative [that] would serve the Government's purpose. Whether New Jersey's sex-focused statute serves a compelling governmental interest, or whether a similar statute could be crafted to serve such an interest, appears questionable at present."). See infra notes 283-93 and accompanying text for more First Amendment analysis.

254 O'Connor, supra note 45. After "A", the subject of the piece, contacted police when her ex-boyfriend posted dozens of nude pictures of her on various social media websites, they charged him with the New Jersey invasion of privacy statute. Id.

255 IDAHO CODE ANN. § 18-6609(2)-(3) (West 2014).

256 See Id.

257 Even so, the California law requires the agreement of both parties about the level of privacy of the photo, CAL. PENAL CODE § 647(j)(4)(A) (West 2013) (emphasis added) ("Any person who photographs by any means the image of the inmate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress."), while the Idaho law only requires that one party thought that the photo should remain private. See IDAHO CODE ANN. § 18-6609(2)-(3).

258 See infra Part II. B.3.b. 259 S.B. 367, 2013-2014 Leg., Reg. Sess. (Wis. 2014).

260 WIS. STAT. ANN. § 942.09(3m)(a) (West 2014).

261 Id.

John Caher Page 29 of 43 42 Fordham Urb. L.J. 233, *275 for societal attitudes to shift will not help the teenage girls committing suicide now, or the countless victims whose professional and personal lives are utterly destroyed by these posts. Under current laws, revenge porn websites are not dying out. A few have been shut down, but hundreds of others have popped up in their place. 334 Existing laws, like cyberstalking and cyberharassment, do not cover all victims because they require a showing of repeat patterns of behavior. 335

A. Specific Criminal Statutes that Directly Address the Severity of Revenge Porn Are Needed

While cyberharassment, cyberstalking, and blackmail statutes may help some victims, they are not directly on point, and they leave the majority of posters immune from criminal prosecution. 336 Specific statutes in all states addressing revenge porn are needed because it is the best way to mitigate the problem of revenge porn. Specific laws would be beneficial for deterring future offenders. The prevailing view is that posting nude images of one's ex- partner without consent is legal, so posters shoulder no risk in uploading damaging pictures. 337 This view is not only prevailing, but is also the correct view in forty-four states. 338 Criminalizing the behavior would put others on notice of the consequences of non-compliance. 339 Because a civil suit is not a [*276] possibility for many victims, 340 and the pictures may never be fully expunged from the web, watching their perpetrators brought to justice may be the only consolation available for these victims. 341 Of course, the new statute would have to be combined with sufficient instruction for law enforcement, so that officers know both about the law and how to utilize it.

When states adopt criminal statutes, they can signal to the public what type of conduct they disapprove. Citron states that this is because the law plays an integral role in society's moral composition. 342 The law broadcasts what behavior we find objectionable through what it prohibits, and what type of harm society sees as worthy of correction. 343 Other scholars find that this channel runs the other way and see the law as only responsive to the current society's moral trends. 344 It is difficult to say whether the law is active or reactionary in relation to society's moral views, but it is most likely some combination of both.

262 See CAL. PENAL CODE § 647(j)(4).

263 See Mark Melnicoe, California's Crackdown on Revenge Porn Ready for Final Approval, SALON (Sept. 11, 2013, 5:15 PM), http://www.salon.com/2013/09/11/california's_crackdown_on_revenge_porn_set_for_final_approval_newscred/.

264 CAL. PENAL CODE § 647(j)(4)(A). The statute defines "intimate body part" as "any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing." CAL. PENAL CODE § 647(j)(4)(B).

265 CAL. PENAL CODE § 647. The penalty is up to six months in jail and a fine of up to $ 1000. Natasha Lennard, California Bans Revenge Porn, SALON (Oct. 2, 2013), http://www.salon.com/2013/10/02/california_bans_revenge_porn/.

266 Melnicoe, supra note 263.

267 Lennard, supra note 265.

268 Id.

269 See Julia Dahl, "Revenge Porn" Law in California a Good First Step, but Flawed, Experts Say, CBS NEWS (Oct. 3, 2013), http://www.cbsnews.com/8301-504083_162-57605761-504083/revenge-porn-law-in-california-a-good-first-step-butflawed- experts-say/; Heather Kelly,New California 'Revenge Porn' Law May Miss Some Victims, CNN (Oct. 3, 2013), http://www.cnn.com/2013/10/03/tech/web/revenge-porn-law-california/; Grace Wyler,Do Revenge Porn Laws Actually Help Anyone?, MOTHERBOARD (Oct. 9, 2013), http://motherboard.vice.com/blog/do-revenge-porn-laws-actually-help-anyone.

270 See Dahl, supra note 269; Kelly, supra note 269; Wyler, supra note 269.

John Caher Page 30 of 43 42 Fordham Urb. L.J. 233, *276

Consider the example of sexual harassment. Workplace sexual harassment was considered fairly ordinary until courts started to punish it in the late 1970s. 345 At that time, the social meaning of sexual harassment shifted and society began to view it as a type of gender discrimination. 346 However, it is not a coincidence that these laws were implemented in the 1970s (and not the 1950s), after radical feminists started to define sexism and assert that men were oppressing women through sexual relations in the workplace. 347 If [*277] revenge porn were nationally criminalized, it would convey that society condemns this behavior because lawmakers see it as important enough to allocate resources to prosecution.

State laws currently in place may not be active, but reactionary to the recent publicity of revenge porn. However, the law in New Jersey, which is probably the "best" law in terms of capturing the most revenge porn offenders due to its focus on consent and lack of loopholes, was not passed to address revenge porn. 348 Nonetheless, it has been used to prosecute these types of perpetrators and has paved the way for other states to recognize this harm as worthy of criminalization.

If the law does shape morality, as Citron proposes, then legislation addressing revenge porn would be instrumental in edging society closer to understanding the gravity of this wrongdoing. If legislation is simply reactionary, then it needs to be passed now--while journalists are still writing about it and legislators are still interested. Victims will not to suffer any less when newspapers tire of this topic, but there may be less call to action when this occurs. Either way, for these victims, society's disapproval of their offender alone does little to vindicate their harm. Without a law criminalizing revenge porn, violated women experience the double suffering felt by victims of rape and sexual harassment before those harms were criminalized: the harm in the event itself and the non-existence of a law to address it. 349

Even if legislation addressing revenge porn is simply responsive to a moral trend, it could still aid victims by validating their suffering. The absence of legislation presents a cyclical problem: because we view these harms as trivial, there are no criminal statutes for them, and because there are no criminal statutes for them, we see the harm as trivial. 350 A specific legal statute would send a clear message to victims of revenge porn that their suffering is

271 Eric Goldman, California's New Law Shows It's Not Easy to Regulate Revenge Porn, FORBES (Oct. 8, 2013, 12:30 PM) [hereinafter Goldman, CA Law], http://www.forbes.com/sites/ericgoldman/2013/10/08/californias-new-law-shows-itsnot-easy-to- regulate-revenge-porn/. Although, if found, hackers could still be prosecuted under hacking statutes.See supra Part II. B.2.c.

272 Jacobs, supra note 154.

273 CAL. PENAL CODE § 647(j)(4)(A) (West 2013).

274 Wyler, supra note 269.

275 Eric Schulzke, California Lawmakers Target 'Revenge Porn' but Miss, Critics Say, DESERET NEWS (Sept. 8, 2013), http://www.deseretnews.com/article/865586019/California-lawmakers-target-revenge-porn-but-miss-critics-say.html.

276 Id.

277 See infra note 278 and accompanying text.

278 N.Y. PENAL LAW § 120.00 (McKinney 2014) ("A person is guilty of assault in the third degree when: 1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or 2) He recklessly causes physical injury to another person; or 3) With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.").

279 See N.J. STAT. ANN. § 2C:14-9(c) (West 2004); supra note 240 and accompanying text.

280 See CAL. PENAL CODE § 647(j)(4) (West 2013); supra note 257 and accompanying text.

281 CAL. PENAL CODE § 647(j)(4)(A).

John Caher Page 31 of 43 42 Fordham Urb. L.J. 233, *277 legitimate and deserving of recognition. 351 Laws targeting revenge porn could also alert police and prosecutors to start taking this type of offense seriously. 352

[*278] Revenge porn should be treated as a felony, because a severe classification reflects the amount of harm experienced by victims. California's classification of the crime as a misdemeanor completely trivializes the offense. 353 By classifying the offense as a misdemeanor and requiring a showing of emotional distress, the California legislature shows that it does not see distribution of revenge porn as an objectively harmful invasion of privacy. 354 Additionally, the antirevenge porn law is housed in Section 647, the same section criminalizing obstructing a sidewalk while intoxicated (not in a motor vehicle), 355 loitering at a public toilet to solicit lewd acts, 356 and confronting someone in public for the purposes of begging. 357 The fact that California views these offenses and revenge porn offenses alike represents that the state sees revenge porn as a minor problem.

A law with serious consequences would also signal to women that it is not their fault for trusting their partner with sensitive material. It would put others on notice that posting intimate photographs without another's consent will not be tolerated. A law would express that a woman's only options are not forgoing this type of sexual behavior or suffering in silence once targeted. The law would legitimize these women's harms, and present a clear route to fight back.

B. Revenge Porn Is a Type of Sexual Misconduct

Non-consensual pornography should be classified as a sexual offense because of its similarity to other types of sexual offenses, like sexual assault and sexual harassment. The offense is comparable to other sexual misconduct crimes because of the nature of the wrongful act, the harm that the victim experiences, and society's attitude towards the transgression.

First, revenge porn parallels other sexual crimes. The nature of the wrongdoing turns on issues of privacy, consent, and violations of the body. And as the Internet progressively becomes more realistic to [*279] users,

282 Goldman, CA Law, supra note 271.

283 See infra text accompanying notes 353-57, 384-87 for additional criticism of California's law.

284 Rachel Weiner, Bill Banning Revenge Porn Passes in Virginia, WASH. POST (Feb. 28, 2014), http://www.washingtonpost.com/local/virginia-politics/bill-banningrevenge-porn-passes-in-virginia/2014/02/28/7ccd021c-a0c1- 11e3-b8d8-94577ff66b28_story.html.

285 Id. 286 H. B. 71, 2014 Leg., Gen. Sess. § 76-5b-203(2) (Utah 2014).

287 Id.

288 Id.

289 Id.

290 S.B. 946, FLA. STAT. § 847.0042 (Fla. 2013), available at http://www.flsenate.gov/Session/Bill/2013/0946/BillText/Filed/HTML. The failed provision stated: Nude depictions with personal identifying information.--(1) A person may not knowingly use a computer or other device capable of electronic data transmission or distribution to transmit or post to a website or any other social networking service, or cause to be posted to a website or any other social networking service, any photograph or video of an individual which depicts and contains any of the depicted individual's personal identification information, as defined in s. 817.568, or counterfeit or fictitious information purporting to be such personal identification information, without first obtaining the depicted person's written consent unless the victim was photographed or videotaped in public and a lack of objection to the photography or videotaping could reasonably be implied by the victim's conduct.

John Caher Page 32 of 43 42 Fordham Urb. L.J. 233, *279 virtual sexual harassment will edge closer to resembling traditional sexual crimes. 358 Revenge porn crimes would also have similar defenses as sexual offenses: that the victim consented, or someone else other than the defendant committed the crime.

Second, the harm victims of revenge porn feel resembles the harm of victims of sexual harassment. Sexual harassment recognizes that victims do not have to be physically touched to experience real harm. 359 Like victims of sexual harassment, revenge porn victims experience an invasion of the body--they feel dirty and humiliated by this . 360 Further, online harassment has the potential to be more damaging than offline harassment. 361 When a woman is sexually harassed, her next employer will probably not find out about the crime unless she chooses to divulge it. A recent study found that eighty-one percent of employers "Google" prospective job candidates. 362 This means that these pictures will taint almost every future job application for the rest of the woman's life. One revenge porn victim called the offense a "cyberrape," which she felt adequately represented the damage she felt. 363

The third similarity between other sexual crimes and revenge porn is society's treatment of these wrongdoings. Women are told now to not send pictures to their boyfriends if they want to avoid becoming a victim of revenge porn, 364 just as women were told to not dress a certain way to avoid being raped, 365 or to quit their job to avoid being sexually harassed. 366 This "boys will be boys" mentality conveys that the women are the ones responsible for the crime that befell them, and not the actual perpetrator. 367 Revenge porn is only the latest in [*280] predominately female, sexualized crimes to be trivialized by our culture.

C. Thinking about Revenge Porn Laws like Sexual Misconduct Laws

The most important legal takeaway from sexual offenses is that consent is not absolute. 368 Historically, a woman's lack of consent to sex was not always considered in the criminal justice system. 369 Even in the mid- twentieth century, a woman was still thought to be in a permanent state of consent to her husband. 370 The full marital rape exemption was only completely eliminated in all states in the early 1990s. 371 Consenting to sex once

Id.

291 Suzanne Choney, 'Revenge porn' Law in California Could Pave Way for Rest of Nation, NBC NEWS (Sept. 3, 2013, 4:34 PM), http://www.nbcnews.com/technology/revenge-porn-law-california-could-pave-way-rest-nation-8C11022538.

292 See Fla. S.B. 946.

293 See Choney, supra note 291.

294 See Fla. S.B. 946.

295 See Id.

296 , Calif. Gov. Brown Signs Anti-Revenge Porn Bill, USA TODAY (Oct. 1, 2013, 11:05 PM), http://www.usatoday.com/story/news/nation/2013/10/01/california-brown-anti-revenge-porn-bill/2906305/.

297 Bob Kealing, Senate Bill Would Make Revenge Porn Illegal in Florida, WESH.COM (Feb. 7, 2014), http://www.wesh.com/news/central-florida/orangecounty/senate-bill-would-make-revenge-porn-illegal-in-florida/- /12978032/24361798/-/791928/-/index.html#ixzz2sxYhBKWZ.

298 See Franks, Working Paper, supra note 213, at 12.

299 See Patt Morrison, 'Revenge Porn' May Soon Be a Crime in California, L.A. TIMES (Aug. 26, 2013, 11:46 AM), http://www.latimes.com/opinion/opinion-la/la-olrevenge-porn-should-it-be-a-crime-20130826,0,2875247.story#axzz2il7cuBsl.

300 Steven Nelson, Federal 'Revenge Porn' Bill Will Seek to Shrivel Booming Internet Fad, U.S. NEWS (Mar. 26, 2014, 6:01 PM) [hereinafter Nelson, Federal 'Revenge Porn' Bill], http://www.usnews.com/news/articles/2014/03/26/federalrevenge-porn-

John Caher Page 33 of 43 42 Fordham Urb. L.J. 233, *280 does not mean that later sexual activity is necessarily consensual. It should logically follow that consenting to sharing a picture with a partner one time should not be inferred as permanent license for that person to use that private picture to humiliate and harass at any time he sees fit. 372

1. The Focus of Revenge Porn Criminal Statutes Should Be on the Defendant, Not the Victim

In the nineteenth century, in order to prove a defendant was guilty of rape, the prosecution had to prove that she opposed the man with the "utmost resistance." 373 Resistance by the victim was not just one relevant fact contextualized in the overall case, but the legal standard which the court measured consent, and the focal point of the criminal rape case. 374 "Utmost resistance" was understood as physical struggle [*281] to the victim's fullest, for the entire time the sexual assault occurred. 375 The rape conviction did not hinge on the conduct of the defendant (e.g., how much force he used), but the conduct of the victim, and if her resistance was adequate to represent her true unwillingness. 376 This victim-focused requirement was largely derived from the fear that unchaste women would have consensual sex with the defendant and later bring false rape charges. 377 The "utmost resistance" requirement reflected society's view that if a woman truly did not consent to the sexual act, she would fight to resist it. 378 This onerous legal standard resulted in very few defendants being convicted of rape. 379 The low conviction rate was also due in part to the fact that focusing on the conduct of the victim discouraged victims from coming forward to report the offense. 380 The "utmost resistance" requirement has since been abolished. 381 Today, evidence of the victim's resistance is factually relevant at trial, but is no longer a legal element that must be proven. 382 Still, these reforms have not $=282 entirely shifted the focus of rape trials, as a woman's level of resistance persists as a heavy indicator of whether a crime occurred. 383

California's revenge porn legislation parallels rape statutes that historically focused on the conduct of the victim in order to prove the crime. 384 Specifically, in order be convicted of violating the antirevenge porn law in California, the victim must have "suffer[ed] serious emotional distress." 385 While this requirement is likely present in nearly

bill-will-seek-to-shrivel-booming-internet-fad; See Steven Nelson, New Federal Legislation Could Take a Nip Out of 'Revenge Porn', U.S. NEWS (Nov. 21, 2013, 10:52 AM) [hereinafter Nelson, New Federal Legislation], http://www.usnews.com/news/articles/2013/11/21/new-federal-legislation-could-takea-nip-out-of-revenge-porn.

301 Nelson, Federal 'Revenge Porn' Bill, supra note 300.

302 Id.

303 Id.

304 Id. (internal quotations omitted).

305 See Bazelon, supra note 182.

306 Id.

307 See Id.

308 Somini Sengupta, 'Revenge Porn' Could Be Criminal Offense in California, N.Y. TIMES BITS BLOG (Aug. 27, 2013 8:18 AM), http://bits.blogs.nytimes.com/2013/08/27/revenge-porn-could-be-criminal-offense-in-california/.

309 Goldman, Revenge Porn Sites Like Texxxan, supra note 147.

310 Id.

311 Id.

John Caher Page 34 of 43 42 Fordham Urb. L.J. 233, *281 all revenge porn cases, this legal element puts the woman on trial, to prove that she actually suffered in order to secure a conviction. She would most likely be required to take the stand, be questioned and cross examined, and rehash the pain she experienced just to meet this requirement. Did she go to a therapist? Did she try to commit suicide? If she suffered in silence, is this serious enough to meet this requirement? While having a victim-focused element is necessary in many crimes, such as assault, 386 it does not seem necessary for revenge porn. Assault is penalized more harshly if the defendant causes serious physical injury, rather than just physical injury, which rationalizes why the victim should testify as to the severity of the resulting harm. 387 However, revenge porn has no such scaling offenses. Like rape, the focus should be on the nonconsensual act of the defendant instead of the behavior of the victim. The additional requirement leaves room for the defense to unnecessarily badger victims on the stand about their emotional stability or possibly allow defendants to be acquitted on a technicality.

It should also be noted that the other misdemeanors in California Section 647 that are grouped with revenge porn (obstructing a sidewalk while intoxicated, 388 loitering at a public toilet to solicit lewd acts, 389 and confronting someone in public for the purposes of begging) 390 do not have victim conduct requirements. Obstructing a sidewalk and loitering at a public toilet do not require that anyone [*283] have been harmed for a conviction. 391 The statute of confronting someone for the purpose of begging only requires that someone be "accost[ed]," not that the person suffers any kind of injury or emotional distress. 392 It is troubling that California chose to include that

312 Id.

313 Id.

314 Jeremy W. Peters & Brian Stelter, The Facebook Skeletons Come Out, N.Y. TIMES, Nov. 5, 2010, http://www.nytimes.com/2010/11/07/fashion/07indiscretions.html.

315 "By the time the next generation comes into power, they'll just assume this is how it's always been," said Anil Dash, a technology consultant. Id.

316 Id.

317 Cf. Id. As Daniel J. Solove, a professor at George Washington Law School and author of THE FUTURE OF REPUTATION said, "a lot of people make the argument that if everyone's warts are exposed, hey, Everybody has warts, we'll live with it." Id. (internal quotations omitted).

318 See Id. (quoting Solove).

319 Meg Leta Ambrose, A Digital Dark Age and the , J. INTERNET L., Sept. 2013, at 1, 17 ("Some harmful information will last beyond periods that seem appropriate, but a great deal of harmful information will disappear. For example, the revenge porn site IsAnyoneUp.com was shut down on April 19, 2012, taking down all of its anonymously submitted humiliating images with it.").

320 Goldman, Revenge Porn Sites Like Texxxan, supra note 147 (noting that, along with IsAnyoneUp, JuicyCampus and People's Dirt met their demise).

321 Id.

322 The relevant portion of the First Amendment states, "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I. An entire Note could be dedicated to the First Amendment issues arising from revenge porn legislation, and I am only briefly discussing them here in the interest of providing a complete picture of the current legal landscape. Compare Franks, Working Paper, supra note 213, at 16-19, and Danielle Citron, Squaring Revenge Porn Criminal Statutes with First Amendment, CONCURRING OPINIONS (Oct. 13, 2013) [hereinafter Citron, First Amendment], http://www.concurringopinions.com/archives/2013/10/squaring-revenge-porn-criminal-statutes-with-first-amendment- protections.html, with Mark Bennett,Are Statutes Criminalizing Revenge Porn Constitutional?, DEFENDING PEOPLE (Oct. 14, 2013), http://blog.bennettandbennett.com/2013/10/are-statutes-criminalizing-revenge-porn-constitutional.html. For a more thorough analysis of these concerns, see Danielle Keats Citron & Mary Anne Franks,Criminalizing Revenge Porn, 49WAKE FOREST L. REV. 345 (2014).

John Caher Page 35 of 43 42 Fordham Urb. L.J. 233, *283 victims of revenge porn suffer serious emotional harm, when like offenses in their section have no such requirement.

While it may not be possible to completely eliminate any element that focuses on the victim, the victim focus of revenge porn statutes should be on consent. Like the "utmost resistance" requirement, mandating that the victim show that she seriously suffered emotional distress is just an additional burden that would impede justice in revenge porn cases. Eliminating this element may encourage more victims to come forward if they knew they would not necessarily have to testify. It may also result in more just convictions, as juries and judges would not be able to acquit on the basis that the victim had not adequately demonstrated that she experienced a high enough level of emotional suffering.

2. If Revenge Porn Were Classified as a Sexual Offense, Rape Shield Laws May Apply

By classifying revenge porn as a sexual misconduct crime, some states may be able to impose rape shield laws to protect victims. This section introduces rape shield laws generally, and outlines why these rules could be beneficial for victims of revenge porn. This part examines how these current laws might apply to revenge porn victims by discussing the similarities and distinctions between revenge porn and traditional sexual misconduct.

Rape shield laws, which prohibit the introduction of certain types of evidence at trial for crimes of sexual misconduct, are instituted in all states and by the federal government. 393 States vary in the level of restriction afforded to this type of evidence. 394 Federal rape shield laws also apply to allegations of sexual harassment. 395

323 Bennett, supra note 322.

324 See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1217 (2011) (upholding the Westboro Baptist Church members' right to conduct an anti-gay protest outside a military funeral because the speech they were expressing, "the political and moral conduct of the United States and its citizens, the fate of our Nation, in the military, and scandals involving the Catholic clergy--are matters of public import"); United States v. Stevens, 130 S. Ct. 1577 (2010) (discussing where the court upheld the constitutionality of "crush videos," which showed the illegal torture and killing of animals); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (holding a Minnesota statute facially invalid for its content based distinction, which prohibited conduct such as burning a cross or Nazi swastika when the individual knows that it will arouse anger in others).

325 See Foster v. Svenson, 2013 N.Y. Misc. Lexis 3425. In Foster, plaintiffs requested a preliminary injunction against their defendant-photographer neighbor for taking pictures of them and their children from his apartment, through their window. Id. at *1-2. The photos were displayed in an exhibit called "The Neighbors." Id. The plaintiffs had never consented to having their pictures taken or displayed. Id. The judge denied the plaintiffs' request, stating that under New York law, an individual's right to privacy yielded to an artist's First Amendment rights. Id. at *6-10.

326 Franks, Working Paper, supra note 213, at 15.

327 Id. (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-60 (1985)) ("The Supreme Court has 'long recognized that not all speech is of equal First Amendment importance. It is speech on 'matters of public concern' that is 'at the heart of the First Amendment's protection. . . .' In contrast, speech on matters of purely private concern is of less First Amendment concern.'").

328 Eugene Volokh, Florida "Revenge Porn" Bill, VOLOKH CONSPIRACY (Apr. 10, 2013), http://www.volokh.com/2013/04/10/florida-revenge-porn-bill/.

329 See, e.g., Choney, supra note 291; Melnicoe, supra note 263.

330 See Choney, supra note 291. 331 Citron, First Amendment, supra note 322.

332 Id. Citron discusses Anthony Weiner, who sent sexual images to a college student who later exposed him to the press. Id. Citron posits that the public had a legitimate interest in viewing the pictures because it calls his judgment into question. Id.; see

John Caher Page 36 of 43 42 Fordham Urb. L.J. 233, *283

Specifically, [*284] Federal Rule of Evidence 412 governs the treatment of a victim's past sexual history in a federal criminal sexual misconduct case. The relevant provisions state: (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim's sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant's constitutional rights. 396

The purpose behind rape shield laws aligns with potential obstacles that victims of revenge porn would also face at trial. The advisory committee's notes provide that the rule's goal is to protect victims against "invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process." 397 The committee calls the rationale behind rape shield laws "obvious," which is to encourage victims to come forward by protecting their privacy. 398 Rape shield laws were also implemented to reduce introduction of unnecessarily inflammatory evidence at trial, 399 and prevent propensity reasoning, which presumes that if a victim consented to sexual acts in the past, she must have consented to the sexual act in question. 400

Certain evidence is presumptively inadmissible in rape cases under current rape shield laws. This includes prior sexual acts with third parties, and evidence of the victim's sexual predisposition. 401 This [*285] type of evidence generally is considered too prejudicial to outweigh its probative value. 402 This rule should also apply in revenge

also, Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (showing where the court held broader First Amendment protections applied to speech concerning public figures).

333 See supra text accompanying notes 309-13. 334 In the interest of not increasing traffic to these websites, I will not name them, although a simple Google search will provide the reader with a myriad of examples.

335 Sengupta, supra note 308.

336 See supra Part II. B.2.

337 Citron, Law's Expressive Value, supra note 63, at 376-77.

338 See supra Parts II. B.3.a-b.

339 Id.

340 See supra Part II. B.1.

341 Morrison, supra note 299.

342 Citron, Law's Expressive Value, supra note 63, at 407.

343 Id.

344 See Eric A. Johnson, Harm to the "Fabric of Society" as a Basis for Regulating Otherwise Harmless Conduct: Notes on a Theme from Ravin v. State, 27 Seattle U. L. Rev. 41, 56 (2003) ("The process whereby the criminal law reinforces moral reaction

John Caher Page 37 of 43 42 Fordham Urb. L.J. 233, *285 porn cases, as evidence of prior sexual behavior would most likely shed no light on the victim's consent or defendant's innocence. However, prior posting history by the victim could be admissible, because if the victim allowed pornographic photographs of herself to be posted in the past, then the poster may have believed she would have consented in the contested instance.

In sexual misconduct cases, rape shield laws do not prevent a defendant from introducing evidence of the victim's sexual activity with a third party if it is relevant in proving that the defendant was not the one responsible for the victim's injuries. 403 In revenge porn cases, this would allow the defendant to introduce evidence of sexualized posting activities with third parties only if it was legally relevant to prove that someone other than him distributed the compromising photographs. This may broaden the evidentiary net beyond what is traditionally allowed to be introduced in rape cases, where the defendant normally has to prove that the victim engaged in sexual activity with a third party during the reasonable time period of the rape allegation. 404 However, if the defendant in a revenge porn case asserts that someone else posted the photo, this may introduce evidence that parses through the victim's entire social history, as any party a victim could have been in contact with (be it former lover or roommate with access to her computer) could have received or taken a sexual photograph. Ideally, due to technological advances, a court would be able to narrow down when the photograph was taken. This could eliminate parties that came in contact with the victim before the date the photograph was taken. In order to limit the evidence [*286] admitted for this defense, courts should only allow evidence of sexual activity with third parties if it can be reasonably shown that the victim shared the pictures in question with them or the party somehow had access to the picture. This is preferable instead of general evidence that the victim had previously engaged in sexual conduct with third parties, who may have had the opportunity to photograph her in a state of undress.

The other type of evidence exempt from the rape shield rule is evidence to show that the victim consented to the act with the defendant. 405 If the victim asserts she did not consent to the sexual activity, the defendant may be able to admit evidence of previous sexual acts between them, or statements the victim made communicating her desire to have sex with the defendant. 406 In revenge porn cases, evidence warranting this exemption would have to be

patterns sometimes is multifaceted and mysterious."); Richard Lowell Nygaard, Crime, Pain, and Punishment: A Skeptic's View, 102 DICK. L. REV. 355, 358 (1998) ("'Wrongness' is a collective judgment of society, and laws are the political manifestation of society's collective moral ideals.").

345 Citron, Law's Expressive Value, supra note 63, at 407-08 ("[C]ourt rulings in the late 1970s and early 1980s changed the social meaning of sexual harassment by recognizing it as a form of gender discrimination. Before those decisions, only two small grassroots women's groups working against in the workplace existed, one of which used another name to describe the phenomenon. The media's sole coverage of the issue appeared in the women's magazine Redbook.").

346 Id.

347 See Lucetta Pope, Everything You Ever Wanted to Know About Sexual Harassment but Were Too Politically Correct to Ask (or, the Use and Abuse of 'But For' Analysis in Sexual Harassment Law Under Title VII), 30 Sw. U. L. Rev. 253, 257-58 (2001).

348 See supra note 241 and accompanying text.

349 See WEST, supra note 97, at 96.

350 "The trivialization of cyber harassment . . . may blunt the efficacy of existing criminal law . . . . Law has an important role to play in detrivializing cyber gender harassment and serving as a force of moral suasion." Citron, Law's Expressive Value, supra note 63, at 404.

351 See Id. at 407.

352 Sengupta, supra note 308.

353 See CAL. PENAL CODE § 647 (West 2013). "The problem is that the [California] bill only goes halfway. It makes it a misdemeanor offense to post revenge porn only if a prosecutor shows that the poster intended to inflict emotional distress,

John Caher Page 38 of 43 42 Fordham Urb. L.J. 233, *286 related to the defendant reasonably believing the victim consented to sharing the photographs, not consenting to sexual activity. Evidence of previous sexual conduct would be even less relevant to this consideration, as consenting to sexual acts is generally not related to consenting to publication of private photographs. Examples of activity that may be admitted could be evidence the victim had previously allowed her boyfriend to post photographs of her online, or that the victim was in the pornography industry and had repeatedly allowed others to post nude pictures of her on other websites. Based on this previous conduct, the defendant may have inferred the victim would have consented to the photograph dissemination at issue.

In traditional sexual assault cases, the defendant may also be able to introduce evidence of a victim's sexual past if it reveals that the victim had a motive to fabricate the claim. 407 This type of evidence should also be admissible in revenge porn cases, as it is relevant to the defendant's innocence. Additionally, any other evidence pursuant to protecting the defendant's Sixth Amendment rights should not be barred under rape shield laws in revenge porn cases, such as a defendant's right to confront witnesses against him. 408 While it may [*287] be necessary to expand our understanding of these rape shield laws if they were to cover revenge porn cases, these victims could derive the same benefits that these laws provide in traditional sexual assault cases.

3. By Making Revenge Porn a Sexual Offense, the Victim's Name May Not Have to Be Fully Disclosed in Court Documents

In many states, victims of sexual offenses are allowed to operate under an alias, or to provide incomplete names in trial documents. Requiring the victim's full name to be published in court documents would be a hefty deterrent for victims to come forward. 409 Some critics have viewed the disclosure of the full names of rape and sexual assault victims as a "second rape" as the publication often leads to criticism and stigmatization from members of the community. 410 Studies have also shown that protecting a rape victim's name is likely to increase reporting. 411 Incomplete disclosure of identities is disfavored in the legal system, as the public has an interest in being fully informed about what transpires in its legal proceedings. 412 However, this interest can be abridged when it is

rather than treating the act of posting a sexual photo without consent as an objectively harmful invasion of privacy. And the punishment wouldn't apply if the subject of the photo took the picture herself, which means it wouldn't help people whose exes persuaded them to hand over photos as a sign of trust." Bazelon, supra note 182.

354 See Bazelon, supra note 182.

355 CAL. PENAL CODE § 647(f).

356 CAL. PENAL CODE § 647(d).

357 CAL. PENAL CODE § 647(c).

358 Citron, Law's Expressive Value, supra note 63, at 376 ("As the market leans toward more realistic sensory experiences in virtual worlds and as these sites become more popular, cyber gender harassment may more closely approximate conventional notions of sexual violence.").

359 See WEST, supra note 97, at 103.

360 See Id.

361 See supra notes 109-18 and accompanying text.

362 You WILL Get Googled . . . Are You Afraid?, DIRECTEMPLOYERS (Feb. 21, 2014), http://www.directemployers.org/2014/02/21/you-will-get-googledare-youafraid/.

363 Roy, Battle, supra note 84.

John Caher Page 39 of 43 42 Fordham Urb. L.J. 233, *287 exceptionally necessary to protect the privacy of the parties, as is the case with rape victims. 413 Currently, fifteen states restrict the names of adult victims of sexual assault. 414

[*288] Revenge porn victims would derive a great benefit from incomplete disclosure of their identities. Laws that prohibit the press from publishing a victim's name, when obtained legally through court documents, have been routinely struck down as unconstitutional. 415 This makes initial publication in court records the only barrier to publicity for victims of revenge porn. 416 Protecting the identities of revenge porn victims could encourage

364 See supra note 147 and accompanying text.

365 See Franks, Victim Blaming, supra note 148.

366 See Citron, Law's Expressive Value, supra note 63, at 398.

John Caher Page 40 of 43 42 Fordham Urb. L.J. 233, *288

367 See Jordan Larson, The New Pornographers, AM. PROSPECT (Oct. 7, 2013), http://prospect.org/article/new-pornographers (quoting Danielle Citron) ("It's like we went back 30 years, and the response that we see to online harassment is so similar to the ways society used to trivialize and write off sexual harassment in the workplace and domestic violence. 'Yeah, turn your computer off, boys will be boys, it's no big deal.' Same way with sexual harassment in the workplace, it was, 'Yeah, it's just a perk for men to enjoy.' As much as we made some progress with sexual harassment in the workplace and changing social attitudes, we have a long way to go about online harassment.").

368 See generally Mary Anne Franks, Why You Can't Punch a Boxer in the Face When He Asks You for Directions: Consent, Context, and Humanity, CONCURRING OPINIONS (Feb. 9, 2013), http://www.concurringopinions.com/archives/2013/02/why- you-cant-punch-a-boxer-in-the-face-when-he-asks-you-for-directions-consentcontext-and-humanity.html.

369 See generally Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373 (2000).

370 See Id. at 1376; see also MODEL PENAL CODE § 213.1 (1962) (amended 2001) ("(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if . . . ").

371 See Sack, supra note 137, at 554.

372 See Bazelon, supra note 182.

373 Citron, Law's Expressive Value, supra note 63, at 392.

374 H. Lane Kneedler, Sexual Assault Law Reform in Virginia--A Legislative History, 68 Va. L. Rev. 459, 476 (1982); see also supra note 115 and accompanying text (discussing how these evidentiary requirements were not present in crimes that affected both men and women equally).

375 See infra note 376.

376 See Estrich, supra note 127, at 1122-23 (discussing Brown). In Brown, a sixteen-year-old girl was seized by her neighbor while walking home from her grandmother's house. Brown v. State, 106 N.W. 536 (1906). He forced himself upon her, and she testified at trial:

I tried as hard as I could to get away. I was trying all the time to get away just as hard as I could. I was trying to get up; I pulled at the grass;

I screamed as hard as I could, and he told me to shut up, and I didn't, and then he held his hand on my mouth until I was almost strangled.

Id. The jury found the defendant guilty of rape, but the Supreme Court of Wisconsin reversed. Id. The court did not hold that the defendant's conduct was insufficient to qualify as rape, but that the victim's resistance did not sufficiently express her nonconsent. Id. "Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated." Id. at 538.

377 Kneedler, supra note 374, at 475.

378 See Estrich, supra note 127, at 1130.

379 See Kneedler, supra note 374, at 464; Wells & Motley, supra note 143, at 146-47.

380 See Wicktom, supra note 127, at 400-01 ("The inadequate definition of rape contributes to these low rates because the focus on the victim's conduct discourages reporting, the element of nonconsent is difficult to prove, and, therefore, prosecutors are reluctant to bring cases and juries are reluctant to convict. The inadequacies of rape law threaten the safety and independence of women, who are the overwhelming majority of rape victims in the United States.").

381 Wells & Motley, supra note 143, at 151.

John Caher Page 41 of 43 42 Fordham Urb. L.J. 233, *288

382 Kneedler, supra note 374, at 485.

383 Wells & Motley, supra note 143, at 152.

384 See CAL. PENAL CODE § 647(j)(4)(A) (West 2013).

385 Id.

386 See N.Y. PENAL LAW § 120.00 (McKinney 2014).

387 Compare N.Y. PENAL LAW § 120.05(1) ("A person is guilty of assault in the second degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . ."), with N.Y. PENAL LAW § 120.00(1) ("A person is guilty of assault in the third degree when . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .").

388 CAL. PENAL CODE § 647(f).

389 CAL. PENAL CODE § 647(d).

390 CAL. PENAL CODE § 647(c).

391 CAL. PENAL CODE § 647(d), (f).

392 CAL. PENAL CODE § 647(c). 393 1 BARBARA BERGMAN & NANCY HOLLANDER, WHARTON'S CRIMINAL EVIDENCE § 4:41 (15th ed. 1997).

394 See generally Id. (discussing the four different ways states have addressed rape shield laws).

395 2 SUSAN M. OMILIAN & JEAN P. KAMP, SEX-BASED EMPLOYMENT DISCRIMINATION § 26:3 ("FED. R. EVID. 412 was extended under a provision of the Violent Crime Control and Law Enforcement Act of 1994 effective December 1, 1994, to civil cases and specifically Title VII actions in which the plaintiff has alleged sexual harassment.").

396 FED. R. EVID. 412.

397 FED. R. EVID. 412 advisory committee's note subdiv. (a).

398 Id.

399 Leah DaSilva, Note, The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to Include Evidence Found on Myspace, 13 SUFFOLK J. TRIAL & APP. ADVOC. 211, 220 (2008).

400 Id.

401 Darlene Barrier, Comment, Protection for Victims: Why Washington Should Adopt A Sexual Harassment Evidence Shield Statute, 31 GONZ. L. REV. 591, 603 (1996).

402 Id.

403 FED. R. EVID. 412(b)(1)(A); see also FED. R. EVID. 412 advisory committee's note subdiv. (b) ("Under subdivision (b)(1)(A), evidence of specific instances of sexual behavior with persons other than the person whose sexual misconduct is alleged may be admissible if it is offered to prove that another person was the source of semen, injury or other physical evidence. Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible.").

404 See 1 BERGMAN & HOLLANDER, supra note 393 (internal quotations omitted) ("The defendant may wish to introduce evidence that the complainant engaged in sexual relations (consensual or otherwise) with someone else within a reasonable

John Caher Page 42 of 43 42 Fordham Urb. L.J. 233, *288 reporting, for this would give them some protection from public investigation. Additionally, because the nature of the crime is an invasion of privacy, publishing the victim's name would only further the crime, as it would increase attention to the embarrassing photographs.

CONCLUSION

Revenge porn is a serious offense, and if unregulated, its prevalence will continue. Victims experience humiliation, mental anguish, threats to their safety, destruction of their careers, and a few have even taken their own lives. In order to adequately punish the behavior in relation to the objectively wrongful act and harm caused, there needs to time period before her physical examination after the alleged rape with the defendant. Evidence of alternative theories for injuries associated with a possible rape is usually excluded unless the defendant can establish it is sufficiently relevant to prove that someone other than the defendant was the source of the complainant's injury.").

405 FED. R. EVID. 412(b)(1)(B).

406 FED. R. EVID. 412 advisory committee's note subdiv. (b).

407 1 BERGMAN & HOLLANDER, supra note 393; Kneedler, supra note 374, at 500.

408 "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. CONST. amend. VI. "State rape shield law could not be used to deprive accused of his constitutional right to confront witnesses against him." 24 AM. JUR. 2D Proof of Facts § 515 (1980) (citing Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1993)).

409 See supra note 207 and accompanying text (discussing how bringing suit may increase publicity to the offending photos).

410 Joel M. Schumm, No Names, Please: The Virtual Victimization of Children, Crime Victims, the Mentally Ill, and Others in Appellate Court Opinions, 42 GA. L. REV. 471, 487 (2008).

411 Id.

412 Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 873 (7th Cir. 1997).

413 Id.

414 See Schumm, supra note 409, at 487; see also ALASKA STAT. ANN. § 12.61.140 (2013) (requiring use of the victim's initials); ARK. CODE ANN. § 16-90-1104 (West 2014) (directing law enforcement generally to not disclose identifying information of victims of sex crimes); CAL. GOV'T CODE § 54961 (West 2008) (allowing certain documents to refrain from using a victim's identity); COLO. REV. STAT. ANN. § 18-3-407 (West 2014) (permitting a court to issue a protective order concerning disclosure of victim's information); CONN. GEN. STAT. ANN. § 54-86e (West 2003) (providing that a sexual assault victim's information should remain confidential); FLA. STAT. ANN. § 92.56 (West 2014) (allowing a victim to petition for confidential status); MASS. GEN. LAWS ANN. ch. 265, § 24C (West 2012) (requiring rape victims' names to be withheld from public inspection in court and police records); MO. ANN. STAT. § 595.037 (West 2014) (exempting sexual abuse victims from the general rule of all records being open to the public); MONT. CODE ANN. § 44-5-311 (West 2013) (restricting dissemination of a victim's identity when the victim requests confidentiality); NEB. REV. STAT. ANN. § 81-1842 (West 2014) (prohibiting the name of any sexual assault victim from being made public); NEV. REV. STAT. ANN. § 200.3772 (West 2013) (allowing victims of sexual offenses to use pseudonyms); N.Y. CIV. RIGHTS LAW § 50-b (McKinney 2006) (requiring the identity of victims of sexual offenses to be confidential); S.C. CODE ANN. § 16-3-730 (2014) (prohibiting the publication of the name of victims of sexual conduct); S.D. CODIFIED LAWS § 23A-6-22 (2014) (generally requiring the names of sexual offense victims to be suppressed at the victim's request); TEX. CRIM. PROC. CODE ANN.ART. 57.02 (West 2007) (allowing victims of sexual offenses to choose a pseudonym used in legal documents).

415 See Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 55 (Tex. 1992); Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596 (1982); see also Susan Puder, Protecting the Rape Victim Through Mandatory Closure Statutes: Is It Constitutional?, 32 N.Y.L. SCH. L. REV. 111 (1987).

416 Considering how much press current legislation and victims of revenge porn are currently getting, these criminal cases in New Jersey and California will almost certainly be widely covered.

John Caher Page 43 of 43 42 Fordham Urb. L.J. 233, *288 be a serious criminal statute directly addressing the problem. Revenge porn victims should not be forced to wait as long as victims of domestic violence, rape, and other intimate partner crimes had to wait to see their wrongdoings vindicated through the law. The ideal statute should be similar to New Jersey's in its offense level and focus on the act of non-consensual disclosure, and unlike California's, which classifies it as a misdemeanor, has various loopholes, and requires the victim to show emotional distress. Revenge porn should be classified as a type of sexual misconduct because of the nature of the offense and because of the evidentiary protections it would allow victims under rape shield laws. A statute with serious [*289] consequences could help victims like Annmarie see their tormentors brought to justice and hopefully cause this horrific industry to fade away by putting others on notice that their conduct will no longer be tolerated by the legal system.

Fordham Urban Law Journal Copyright (c) 2014 Fordham Urban Law Journal Fordham Urban Law Journal

End of Document

John Caher

HELL HATH NO FURY: WHY FIRST AMENDMENT SCRUTINY HAS LED TO INEFFECTIVE REVENGE PORN LAWS, AND HOW TO CHANGE THE ANALYTICAL ARGUMENT TO OVERCOME THIS ISSUE∗

I. INTRODUCTION In early 2014 Halie Ricketts reported that she was walking through the Shops at La Cantera in Texas when a man stuck a cell phone up her skirt and took a video of her.1 Although fellow citizens chased the man Ms. Ricketts said took the video, authorities declined to charge him with a crime.2 Although at one point Texas had an “improper photography” law that could have protected Ms. Ricketts,3 a court struck down the law as an unconstitutional violation of free speech.4 The law, which was also an effective tool for prosecuting pedophiles, was successfully challenged by a man who had been caught taking pictures of children in swimsuits at a water park.5 Ms. Ricketts, in an interview with the local news, crystallized the view of many in society: “Currently the law is protecting the criminals and not the victims.”6 The question, put bluntly by Ms. Ricketts, is an important one regarding the growth of nonconsensual pornography: Must protection from involuntary sexual exploitation be sacrificed at the altar of free speech?7

∗ Joseph J. Pangaro, J.D. Candidate, Temple University Beasley School of Law, 2016. I would like to dedicate this Comment to the memory of my mother-in-law, Lisa Koch. She spent her whole life taking care of those around her, myself included. Without her support and encouragement, I would never have gone back to school. Lisa, we love you and miss you every day. Many thanks to Professor Laura Little, and the Temple Law Review staff for their guidance throughout this process. Thanks to my family, your care and encouragement were a great help: parents, Kathy and Joe; grandparents, Bea and Ted; siblings, Alex, Marisa, Jack, Grant, Kate, and Melissa; and father-in-law, Herb. Finally, I would like to thank my wife, the strongest person I know, for her constant support and all the hard work she did so I could pursue a career in law. I will spend the rest of my life trying to be worthy of the sacrifices she made for me. I love you, Adeline. 1. Phil Anya, State Law Prohibiting ‘ Photos’ Thrown Out, KHOU (Sept. 18, 2014, 2:23 PM), http://www.khou.com/story/news/local/texas/2014/09/18/states-improper-photography-law- thrown-out/15824287/. 2. Id. 3. Improper Photography or Visual Recording Act, TEX. PENAL CODE ANN. § 21.15 (West 2013), invalidated by Ex parte Thompson, 414 S.W.3d 872 (Tex. App. 2013). 4. See Ex parte Thompson, 414 S.W.3d at 877 (holding the improper photography statute as an unconstitutional regulation of free speech). 5. Anya, supra note 1. 6. Id. (quoting Halie Ricketts). 7. Throughout this Comment, victims of revenge porn are generally referred to as women because the majority of—though certainly not all—documented cases to date involve female victims. But see infra note 43 and accompanying text for an example of a male victim of nonconsensual pornography.

185

186 TEMPLE LAW REVIEW [Vol. 88

“Revenge porn,” a subset of nonconsensual pornography, occurs when one party distributes sexually explicit pictures or videos of another in a public forum without the subject’s consent.8 This Comment argues that the primary problem with revenge porn is the emotional, mental, and physical harm that posting such content causes to the individuals depicted.9 Statutes drafted and analyzed based on an idea that the content itself is somehow “more obscene” than other forms of pornography miss the mark and are not likely to survive First Amendment scrutiny. Based on the nature of the harm resulting from posting these images, statutes should instead qualify revenge porn as unprotected speech within the broad category of “fighting words,” and more specifically, as “true threats.” This categorization would allow statutes to be written in broader language that would more effectively address the proliferation of revenge porn. Section II outlines the emergence of revenge porn, as well as some early attempts by local governments to deal with it. It also provides a basic framework for judicial analysis of the First Amendment issues that must be kept in mind when any speech restriction is proposed. Finally, Section III argues for the alternative categorization of revenge porn as “fighting words” rather than “obscenity,” and closes with a proposed statute.

II. OVERVIEW This Section explains the problem of revenge porn and describes ineffective attempted solutions. Part II.A provides a framework for understanding revenge porn and details a variety of harms caused by the practice. Part II.B analyzes the theoretical options for redress posed by civil lawsuits, as well as their real-world impotence. Part II.C explains how criminal prosecution could solve some of the problems associated with civil suits and illustrates how courts struggle to fit the realities of the digital age into statutes written decades earlier. Part II.D, focusing on First Amendment free speech protection, answers the question: What’s the problem with making revenge porn illegal, anyway? Part.II.D.1 outlines the types of speech courts have allowed statutes to proscribe, as well as some of the more famous cases and tests that apply to speech restrictions. Part II.D.2 briefly describes “obscenity,” the most common category of speech restriction courts consider when evaluating statutes that regulate or sexuality. “Obscenity” is also where advocates on both sides of the revenge porn debate focus their efforts. Part II.D.3 presents an alternative category of proscribable speech, “fighting words,” as well as the narrower—but most relevant—subcategory of “true threats.” Part II.D.4 explores the scope of free speech protection, as determined by the current Supreme Court. Finally, Part II.D.5 outlines some legislative action taken by states in light of the Court’s recent rulings.

8. Casey Martinez, Comment, An Argument for States to Outlaw ‘Revenge Porn’ and for Congress to Amend 47 U.S.C. § 230: How Our Current Laws Do Little to Protect Victims, 14 U. PITT. J. TECH. L. & POL’Y 236, 237–38 (2014). 9. See infra notes 25–40 and accompanying text for a review of some of the harms posed by revenge porn.

2015 HELL HATH NO FURY 187

A. The Emergence of Revenge Porn Emerging technology has brought with it a new social scourge known commonly as “revenge porn.”10 Revenge porn is nude or sexually explicit photos or videos of an individual distributed without the individual’s consent, often through the Internet.11 In the majority of cases, a victim provides the intimate media to a distributor during a consensual sexual relationship, and the images are then posted to the Internet in response to the termination of the relationship.12 It is not uncommon, however, for distributors to take intimate media from victims without their knowledge or consent through computer- hacking schemes13 or surreptitious filming.14 No matter the method of acquisition, once the media appears online, its distribution is often rapid and widespread,15 whereas its removal can be a long and slow process.16 The most common—and legally complex—cases involve a person pictured in the media who is over eighteen, consented to participation in the media, and then allowed another person to take possession of the images.17 Under these circumstances, the issue is regulating the distribution of lawfully acquired content, which implicates First Amendment freedom of expression concerns. The initial

10. END REVENGE PORN, http://www.endrevengeporn.org (last visited Nov. 1, 2015). 11. Id. 12. Martinez, supra note 8, at 236–37 (defining revenge porn and providing a specific example of its impact); see Derek E. Bambauer, Exposed, 98 MINN. L. REV. 2025, 2028 (2014) (describing intimate media as “nude or sexually explicit photos or videos”). 13. See, e.g., Daisuke Wakabayashi & Danny Yadron, Apple Denies iCloud Breach, WALL ST. J., Sep. 2, 2014, at B1 (describing Apple’s position that a targeted attack on celebrity accounts led to leaks of nude photographs); see also Caille Millner, ‘Revenge Porn’—Shame for Cruelty and Profit, S.F. CHRON., Feb. 10, 2013, at E6 (noting the original victim in a class action lawsuit took nude photographs to track her weight loss, never shared them with anyone, and had no idea how they ended up online); At Least 100,000 Photos Hacked: Report, CBS NEWS (Oct. 10, 2014, 12:23 PM), http://www.cbsnews.com/news/snapchat-photos-hacked-report/ (describing how thousands of images of intimate media had been collected and compiled by a group of hackers for years before being released). 14. People v. Morriale, 859 N.Y.S.2d 559 (N.Y. Crim. Ct. 2008) (discussing how the defendant surreptitiously recorded himself having sex with the complainant and disseminated the video through email to at least one other person); see also Abigail Pesta, The Haunting of Erin Andrews, MARIE CLAIRE (July 13, 2011, 4:00 AM), http://www.marieclaire.com/celebrity/a6316/erin-andrews-interview/ (discussing how a stalker acquired a nude video of Ms. Andrews by tampering with her hotel room peephole). 15. See, e.g., Taylor v. Franko, No. 09–00002 JMS/RLP, 2011 WL 2746714, at *5 (D. Haw. July 12, 2011) (where plaintiff counted a total of twenty-three websites that had reposted her images); Jenn Selby, Jennifer Lawrence and Kate Upton Naked Photos to Be Displayed by Artist at Upcoming Exhibition, INDEPENDENT (Sept. 4, 2014, 9:44 BST), http://www.independent.co.uk/news/people/jennifer-lawrence-and-kate-upton-nude-photos-to-be- displayed-by-artist-in-los-angeles-at-upcoming-exhibit-9710683.html (artist placed recently leaked intimate media of several celebrities in an art exhibit without their permission and against their will). 16. See, e.g., Taylor, 2011 WL 2746714, at *3 (noting that two of at least twenty-three websites continued to host images of the plaintiff). 17. Jenna K. Stokes, Comment, The Indecent Internet: Resisting Unwarranted Internet Exceptionalism in Combating Revenge Porn, 29 BERKELEY TECH. L.J. 929, 929 (2014) (describing this form of revenge porn as making up roughly eighty percent of cases).

188 TEMPLE LAW REVIEW [Vol. 88 academic response has been that the First Amendment protects distributors from criminal liability, as their postings were truthful speech that, no matter how offensive, cannot be proscribed.18 While it is true most speech receives vigorous protection, there are limited categories of speech that are proscribable.19 Throughout the years, the primary category of proscribable speech under which the government has attempted to regulate pornography is obscenity.20 Revenge porn cases involve nudity and sexuality. As a result, many view revenge porn as merely a form of pornography, and analyze the legality of its regulation according to pornography standards.21 The problem with this approach is that courts generally reject the premise that sexually explicit images of consenting adults rise to the level of “obscene.”22 Acknowledging the general reluctance of courts to allow regulations of pornography, debates on the criminalization of revenge porn seem to force a choice between privacy rights and the First Amendment. As a consequence, drafts of criminal revenge porn statutes use the narrowest possible terms, in hopes that the laws will pass judicial scrutiny. Unfortunately for revenge porn victims, the resultant statutes prove largely ineffective and may still fail review.23 Regardless of the legal classification of revenge porn material, the harm it causes has serious real-world impact. Former partners, turned distributors, often send the images to victims’ friends, family, or coworkers.24 Over eighty percent

18. E.g., Clay Calvert, Revenge Porn and Freedom of Expression: Legislative Pushback to an Online Weapon of Emotional and Reputational Destruction, 24 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 673, 678 (2014) (noting that “much of revenge porn involves truthful speech—the images are accurate, unaltered depictions of a sordid sexual reality”). 19. See infra notes 97–99 and accompanying text for a discussion of the standard used to determine whether speech maintains First Amendment protection. 20. See, e.g., Redrup v. New York, 386 U.S. 767 (1967) (consolidation of cases from New York, Kentucky, and Arkansas relating to the violation of obscenity statutes for selling pornographic magazines); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Att’y Gen. of Mass., 383 U.S. 413 (1966) (attempting to declare as obscene a book recounting the life of a prostitute); Ginzburg v. United States, 383 U.S. 463 (1965) (declaring the mailing of books that included articles and photo essays on sex and sexual relations a violation of the federal obscenity statute). 21. See, e.g., Calvert, supra note 18, at 676–77 (describing revenge porn as “a disturbing niche of ‘the vast and untamed world of amateur ’” (quoting Todd Martens, Pop Music; Rockers and Fans, Fully Exposed; Is Anyone Up? Posts Nude Images of Musicians, Often Without Permission, L.A. TIMES, Dec. 4, 2011, at E1)); Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 WAKE FOREST L. REV. 345, 346 (2014) (describing the issue of revenge porn as “nonconsensual pornography”); Zak Franklin, Comment, Justice for Revenge Porn Victims: Legal Theories to Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites, 102 CALIF. L. REV. 1303, 1307 (2014) (comparing revenge porn to “other forms of pornography”). 22. Jacobellis v. Ohio, 378 U.S. 184, 191 (1964) (“[M]aterial dealing with sex in a manner that advocates ideas or that has literary or scientific or artistic value . . . may not be branded as obscenity and denied the constitutional protection.” (citation omitted)); see also id. at 197 (Stewart, J., concurring) (regarding whether or not a sexual scene in a film was obscene: “I know it when I see it, and the motion picture involved in this case is not that”). 23. See infra Part III.A for a review of the flaws in existing revenge porn legislation. 24. See, e.g., State v. Parsons, No. 10-06–01372, 2011 WL 6089210, at *1 (N.J. Super. Ct. Dec. 8, 2011) (intimate media of a public school teacher sent to her supervisor); People v. Barber, No.

2015 HELL HATH NO FURY 189 of victims experience severe emotional distress and anxiety when they learn what has happened.25 Panic attacks, anorexia, and depression are all “common ailments” experienced by victims of online harassment.26 In addition to the reputational damage and humiliation revenge porn causes, such distribution also poses professional consequences. Employees can be fired as a result of a coworker, supervisor, or customer coming across the intimate material.27 But professional consequences can also occur prospectively. Victims may not be offered jobs because a screening of applicants’ Internet reputation reveals “concerns about their ‘lifestyle,’ ‘inappropriate’ online comments, and ‘unsuitable’ photographs, videos, and information about them.”28 For one teacher in a public school, the perpetrator contended that the teacher’s behavior was “not proper” for a person that works with children.29 For another woman working for the U.S. Department of Fish and , postings of intimate media threatened to impact her security clearance.30 When she learned her intimate media had been distributed widely, the victim broke out in shingles and required emergency counseling.31 From this threshold issue a myriad of disturbing scenarios have emerged. For example, revenge porn images posted to an Internet website may include contact details of a victim.32 A recent survey of revenge porn victims found over fifty percent had their full names and social network profiles included in the posts, and more than twenty percent had their phone numbers and email addresses included as well.33 Perpetrators who post these images while impersonating the victims often include requests for , resulting in real- world harassment that ranges from disturbing to dangerous.34 One victim found

2013NY059761, 2014 WL 641316 (N.Y. Crim. Ct. Feb. 18, 2014) (unpublished table decision) (defendant posted nude photographs of his girlfriend to the Internet and sent them to her employer). 25. Citron & Franks, supra note 21, at 351. 26. See id. at 350–51 (summarizing statistics gathered by the authors from a survey of over 1200 victims). 27. Samantha H. Scheller, Comment, A Picture Is Worth a Thousand Words: The Legal Implications of Revenge Porn, 93 N.C. L. REV. 551, 552 (2015) (“[S]ubjects of the photos and videos can be fired from their jobs . . . .”); see also Taylor v. Franko, No. 09–00002 JMS/RLP, 2011 WL 2746714, at *2–3 (D. Haw. July 12, 2011) (information appeared online that threatened the security clearance of a government contractor); Parsons, 2011 WL 6089210, at *1 (intimate media of a public school teacher sent to her supervisor in an attempt to get her fired). 28. See Citron & Franks, supra note 21, at 352 (citing statistics from a study commissioned by regarding common hiring practices of employers). 29. Parsons, 2011 WL 6089210, at *1 (internal quotation marks omitted). 30. Taylor, 2011 WL 2746714, at *2. 31. Id. 32. See id. at *3 (plaintiff’s contact information was provided alongside intimate media); see also United States v. Sayer, 748 F.3d 425, 428–29 (1st Cir. 2014) (defendant provided victim’s name and address along with intimate media); Citron & Franks, supra note 21, at 345 (after a breakup, ex- boyfriend posted intimate media and contact information on a revenge porn website). 33. Citron & Franks, supra note 21, at 350–51. 34. E.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 (9th Cir. 2009) (woman’s office was “pepper[ed]” with emails, phone calls, and visits from strangers looking for sex in response to a fake Yahoo! profile); Taylor, 2011 WL 2746714, at *3 (plaintiff approached by strangers seeking sexual

190 TEMPLE LAW REVIEW [Vol. 88 that her intimate media appeared next to her work phone number and included the following language: “Hello gentlemen, Get the pleasure you need and the satisfaction you deserve. . . . No drama . . . No games . . . Just you and me baby.”35 Revenge porn posts like these increase the risk to victims of being stalked or physically assaulted.36 Thus, victims of revenge porn often feel unsafe leaving their homes.37 As one victim put it: “Normal people don’t subscribe to sites like this . . . . Only creeps. [And these] are the kinds of people who know where I live.”38 In another case, a woman was raped at knifepoint after her ex- boyfriend posted her photograph and contact information online and, posing as the victim, claimed to be looking for “a real aggressive man with no concern for women.”39

B. Victims Have Largely Been Unsuccessful in Civil Lawsuits The absence of a strong response from the justice system to punish this type of distribution has emboldened perpetrators and has had an increasingly severe impact on victims. In Texas, a stranger allegedly thrust a camera up the skirt of a woman on the street and took photographs.40 Although brought to police, the perpetrator was never charged with a crime because Texas’s “improper photography” statute was “unconstitutional and a violation of free speech.”41 In a highly publicized New Jersey case, a college freshman committed suicide just days after learning that a roommate had recorded his sexual encounter and publicized it on without his knowledge or consent.42 In an attempt to curb this practice, victims have turned to the courts, asserting civil claims. Copyright claims, for example, provide a cause of action for authors whose original expressions are appropriated without permission by another party.43 Asserting this cause of action in the context of revenge porn, relations after recognizing her from her online images); see also Sayer, 748 F.3d at 429 (strangers began to show up at victim’s home); Citron & Franks, supra note 21, at 345 (victim received numerous Facebook posts and phone calls). 35. Taylor, 2011 WL 2746714, at *3 (alteration in original) (internal quotation marks omitted). 36. Citron & Franks, supra note 21, at 350. 37. See id. at 351 (describing how one victim stayed inside her house for days after learning of the posts). 38. Millner, supra note 13, at E6. 39. Caroline Black, Ex-Marine Jebidiah James Stipe Gets 60 Years for Craigslist Rape Plot, CBS NEWS (June 29, 2010, 1:30 PM), http://www.cbsnews.com/news/ex-marine-jebidiah-james-stipe-gets-60- years-for-craigslist-rape-plot/. 40. Anya, supra note 1. 41. See Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (finding the statute at issue unconstitutional). 42. Kate Zernike, Son’s Suicide Leads to Aid for Students, N.Y. TIMES, Feb. 2, 2013, at A18 (New Jersey, as the first state to enact a revenge porn law, successfully charged the roommate with a crime). 43. Dennis McCarthy, —Redefining the Scope of Protection Copyright Affords the Non-Literal Elements of a Computer Program—Computer Associates International, Inc., v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), 66 TEMP. L. REV. 273, 273 (1993) (explaining that the “fundamental principle of copyright law” is to protect an author’s “expression of an idea”).

2015 HELL HATH NO FURY 191 scholars have noted, has the best chance to succeed when the victim herself took the photographs.44 An overwhelming portion of intimate media classified as revenge porn is this type of self-photography.45 One estimate places the number at as much as eighty percent.46 As such, it appeared at first that copyright actions were a viable option because “these [self-photography] victims . . . have authorship rights in their explicit works.”47 Victims have thus brought lawsuits against websites that host and profit from the publication of revenge porn.48 Whatever their theoretical potential, civil lawsuits against website operators have proven ineffective as a practical avenue for victims. For one thing, it is difficult to get attorneys to take on this type of case.49 This is in part due to the reality that most victims cannot afford the tremendous costs of litigation.50 “Having lost their jobs due to the online posts, [victims] cannot pay their rent, let alone cover lawyer’s fees.”51 The majority of these website operators know this, minimizing the realistic threat of lawsuits from victims.52 This, in turn, minimizes civil litigation’s ability to deter possible perpetrators.53 As one attorney in the field explained, “There are only about four or five of us in the whole country. . . . [if more attorneys took this type of work] I wouldn’t have to turn away 90 percent [of cases].”54 Even if a case makes it to court, websites enjoy a clear statutory defense: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”55 Courts tend to interpret this statute as protecting websites— including websites hosting revenge porn—against lawsuits stemming from user- generated content.56 In other words, if a website allows users to post images or

44. E.g., Citron & Franks, supra note 21, at 359–60. 45. See Calvert, supra note 18, at 689 (explaining that self-photography is when someone takes a “sexual ” and shares it with his or her significant other); Stokes, supra note 17, at 94; Martinez, supra note 8, at 242 (citing that up to eighty percent of revenge porn is self photography). 46. Heather Kelly, New California ‘Revenge Porn’ Law May Miss Some Victims, CNN, http://www.cnn.com/2013/10/03/tech/web/revenge-porn-law-california/index.html (last updated Oct. 3, 2013, 3:01 PM). 47. Stokes, supra note 17, at 937. 48. E.g., GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. Ct. App. 2014). 49. Lorelei Laird, Striking Back at Revenge Porn, A.B.A. J., Nov. 2013, at 44, 49. 50. Citron & Franks, supra note 21, at 358; Laird, supra note 49, at 50 (noting victims are frequently without means to finance a lawsuit and that cases are generally handled pro bono). 51. Citron & Franks, supra note 21, at 358. 52. Id. at 360. 53. Id. at 358. 54. Laird, supra note 49, at 49 (internal quotation marks omitted). 55. 47 U.S.C. § 230(c)(1) (2012) (emphasis added). 56. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir. 2009) (holding that a plaintiff cannot sue a website for publishing content generated by a third party); Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (“[A]n online information system must not ‘be treated as the publisher or speaker of any information provided by’ someone else.” (quoting 47 U.S.C. § 230(c)(1))); see also Backpage.com v. Cooper, 939 F. Supp. 2d 805, 822 (M.D. Tenn. 2013) (“[S]ection 230 of the CDA prohibits state laws from imposing liability on interactive computer services for third-party content, even if the content is unlawful and the website

192 TEMPLE LAW REVIEW [Vol. 88 videos, responsibility for the content lies with the individual actor, not the website. This is “the same law that protects Facebook and YouTube from legal liability for comments and videos” posted by their users.57 Without this statute, “[Facebook and YouTube] could each possibly be held liable for hosting the defamatory material even though none of their employees posted the statement.”58 Finally, because U.S. courts cannot assert jurisdiction over foreign websites, “[s]mart website operators will simply move to overseas hosts to avoid any consequences for their actions.”59 Such statutory protection, bolstered by the unrealistic chance of litigation, leaves revenge porn website hosts so confident in their immunity that some require payments from the victims in order to remove their intimate media.60 In at least one instance, a website operator used this coercive practice as an additional revenue stream, contacting the victims and soliciting payments to remove the images.61 Civil suits have been successful against individual perpetrators on charges such as public disclosure of private facts, intentional and negligent infliction of emotional distress, and defamation of character.62 For the majority of victims, however, this recourse has been ineffective in practice.63 Even if such a claim proves successful, defendants—like their victims—are often financially unstable, and as a result, judgment proof.64 As one attorney in the field put it, “The general rule is these people are not wealthy . . . . They’re young men and they think it’s funny.”65 It is also far from certain that these claims will win in court, as many people feel victims are responsible for their own harm by participating in the intimate media in the first place.66 Finally, regardless of which avenue of relief a victim may pursue, a civil litigation victory does not mean the images will be removed from all the websites on which they appear.67 Or, even if the images had reason to know of the unlawfulness.”). 57. Martinez, supra note 8, at 245–46. 58. Id. at 246. 59. Id. at 247 (indicating that websites outside the United States are beyond the jurisdiction of the court). 60. See Laird, supra note 49, at 46–47 (describing one revenge porn website’s practice of posting advertisements from a fictional attorney—likely the same person running the website—claiming he could take the photos down quickly for a fee); Millner, supra note 13, at E6 (describing one victim’s experience of being told by Texxxan.com that she would have to pay a fee to remove her intimate media from the site). 61. Amanda Marcotte, California Arrests the Owner of a Revenge Porn Site. Other States Should Follow Its Lead., SLATE (Dec. 11, 2013, 1:00 PM), http://www.slate.com/blogs/xx_factor/ 2013/12/11/kevin_bollaert_arrested_for_revenge_porn_california_s_move_is_a_promising.html. 62. E.g., Taylor v. Franko, No. 09–00002 JMS/RLP, 2011 WL 2746714, at *5 (D. Haw. July 12, 2011). 63. Citron & Franks, supra note 21, at 349. 64. Id. at 358. 65. Laird, supra note 49, at 50 (internal quotation marks omitted). 66. Id. at 47–48; see also Calvert, supra note 18, at 702 (concluding that as more people learn about the harm that has resulted from creating intimate media, a “wake-up call to reality” will get them to stop making such images in the first place); Martinez, supra note 8, at 250 (noting an attitude in the public that the victims of revenge porn “brought it upon themselves”). 67. Laird, supra note 49, at 49.

2015 HELL HATH NO FURY 193 are removed, a victim may find them posted to another website shortly thereafter, creating a “game [of] Whac-a-Mole [sic]” between the victim and website operator.68

C. Victims Have Been Unsuccessful in Criminal Prosecutions Given the inconsistent success of civil litigation, victims have also used existing criminal laws in their pursuit of justice.69 Criminal charges eliminate the financial burden to the victim and pose a credible threat to judgment-proof perpetrators.70 In People v. Barber,71 the defendant posted intimate photographs of his former partner to his Twitter account, and also sent them to both the victim’s sister and her employer.72 The defendant was charged with aggravated harassment in the second degree, public display of offensive sexual material, and dissemination of an unlawful surveillance image in the second degree.73 The statutes in Barber, however, did not contemplate the reality of the Internet age. For example, the court in Barber reviewed the dissemination statute and noted: “[I]t is clear that this section, by its very terms, requires more than the mere posting of an image on a social networking site such as Twitter or the sending of an image [of] other persons.”74 After a similarly narrow reading of all three statutes, the court concluded (1) posting pictures on Twitter or sending the pictures to a small group of people did not fit within the statutory definition of “public display,”75 (2) the statutory definition of “harassment” required direct contact with the victim rather than just her friends or colleagues,76 and (3) the complaint pleaded insufficient facts to suggest that the defendant engaged in “unlawful conduct” when he obtained the images.77 As a result, the court dismissed each charge, noting that “the defendant’s conduct, while reprehensible, d[id] not violate any of the criminal statutes under which he [wa]s charged.”78

68. Id. 69. See, e.g., People v. Stone, 982 N.Y.S.2d 733, 734 (N.Y. Crim. Ct. 2014) (charging the defendant with misdemeanor second-degree menacing); People v. Barber, No. 2013NY059761, 2014 WL 641316, at *1–2 (N.Y. Crim. Ct. Feb. 18, 2014) (unpublished table decision) (charging the defendant with aggravated harassment in the second degree, public display of offensive sexual material, and dissemination of an unlawful surveillance image in the second degree). 70. See Citron & Franks, supra note 21, at 361 (arguing that a criminal law solution is needed to deter revenge porn because, while perpetrators with few assets may have little fear of litigation, the threat of criminal charges is less likely to be ignored). 71. No. 2013NY059761, 2014 WL 641316 (N.Y. Crim. Ct. Feb. 18, 2014) (unpublished table decision). 72. Barber, 2014 WL 641316, at *1. 73. Id. at *1–2. 74. Id. at *3. 75. Id. at *7. 76. Id. at *5–6. 77. Id. at *3–4. 78. Id. at *1.

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People v. Stone79 is an earlier case, also from New York, that illustrates courts’ reluctance to acknowledge the impact of digital images as warranting criminal culpability. In Stone, the victim broke up with her boyfriend, who responded by sending a text which read: “I annihilate people who try to hurt me, I will be good if you give me another chance.”80 Two days later, the defendant texted a photograph of “a masked man holding up a knife” from the same phone number.81 Upon his arrest, the defendant admitted to police that he was the person in the photograph wearing the mask and holding the knife.82 The man was charged with menacing in the second degree, which requires, in pertinent part, that the defendant place the victim in reasonable fear by “displaying a deadly weapon.”83 Citing the definition of “display” as something actually witnessed by the victim, the court again felt its hands were tied, concluding “that sending the photograph via text message was more like a written communication than an actual, physical display, and [wa]s insufficient to establish the display element.”84 Responding to the inadequacy of existing criminal statutes, many states, including Pennsylvania, have proposed legislation to specifically criminalize revenge porn.85 However, as many legal scholars have noted, to criminalize the distribution of images taken and possessed with consent threatens the perpetrators’ constitutional rights.86

D. First Amendment Guarantees and Exceptions The First Amendment to the United States Constitution states, “Congress shall make no law . . . abridging the freedom of speech.”87 Courts have interpreted freedom of speech to extend to freedom of expression.88 The First Amendment is applicable to the states by way of the Due Process Clause of the Fourteenth Amendment.89 Courts evaluate government regulations of speech under a strict scrutiny standard, which requires a compelling government interest

79. 982 N.Y.S.2d 733 (N.Y Crim. Ct. 2014). 80. Stone, 982 N.Y.S.2d at 734–35. 81. Id. at 735 (emphasis added). 82. Id. 83. Id. (citing N.Y. PENAL LAW § 120.14(1) (McKinney 2014)). 84. Stone, 982 N.Y.S.2d at 739. 85. See, e.g., N.J. STAT. ANN. § 2C:14-9 (West 2015); UTAH CODE ANN. § 76-5b-203 (West 2015). 86. See, e.g., Calvert, supra note 18, at 674–678 (arguing that revenge porn frequently consists of a “truthful” representation of what a person looks like, and laws which suppress or punish publication of “even hurtful truths” pose a First Amendment issue). 87. U.S. CONST. amend. I. 88. E.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.”). 89. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 450 (1938); De Jonge v. Oregon, 299 U.S. 353, 364 (1937).

2015 HELL HATH NO FURY 195 and a regulation narrowly drawn to achieve its purpose.90 For this reason, attempts by the government to regulate speech or expression often fail in the courts.91 The Supreme Court has protected speech related to flag burning,92 animal cruelty,93 and Ku Klux Klan rallies advocating “crime, sabotage, violence, or unlawful methods of terrorism.”94 The policy behind such vigorous protection is grounded in the belief that the open debate of ideas, no matter how unpopular, ensures that the political and social movements of the nation reflect the desires of the American people.95

1. Speech that Can Be Restricted Despite a broad policy of protection, the Supreme Court has recognized that “the right of free speech is not absolute at all times and under all circumstances.”96 Regulations surviving strict scrutiny have addressed two questions. First, does the regulation restrict constitutionally protected expressive content?97 Second, can the government state a compelling or substantial interest in regulation beyond regulation of the speech itself?98

a. Content-Versus-Conduct Restrictions In analyzing the constitutionality of a speech restriction, courts must first determine if the restriction relates to the content of the speech, or to the conduct

90. See, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987) (“[T]he State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.”). 91. See Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (“[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” (alteration in original) (emphasis added) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983))); see also United States v. Alvarez, 132 S. Ct. 2537, 2543–44 (2012) (overturning a statute which made it a crime to falsely claim receipt of the Medal of Honor); Redrup v. New York, 386 U.S. 767, 770 (1967) (“[A] State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their ‘obscenity.’” (emphasis added)); Butler v. Michigan, 352 U.S. 380, 383 (1957) (declaring unconstitutional a law which prohibited all distribution of literary material that contained passages unfit for children because it “burn[ed] the house to roast the pig” to reducw “the adult population of Michigan to reading only what is fit for children”). 92. See Texas v. Johnson, 491 U.S. 397 (1989). 93. See United States v. Stevens, 559 U.S. 460 (2010), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)). 94. See Brandenburg v. Ohio, 395 U.S. 444, 444–45 (1969). 95. See Roth v. United States, 354 U.S. 476, 484 (1957) (“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”); United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (“[The First Amendment] presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.”). 96. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). 97. Id. at 571–72. 98. United States v. O’Brien, 391 U.S. 367, 376–77 (1968).

196 TEMPLE LAW REVIEW [Vol. 88 of the speaker.99 The statute at issue in Texas v. Johnson100 illustrates a content- based restriction. Johnson was arrested after he stood in front of Dallas’s City Hall, lit an American flag on fire, and led a group chanting, “America, the red, white, and blue, we spit on you.”101 The state of Texas asserted a governmental interest in “preserving the flag as a symbol of nationhood and national unity.”102 The Supreme Court reasoned that concerns about the preservation of the flag as a symbol existed only if it was conceded that “a person’s treatment of the flag communicate[d] some message.”103 If that was the case, his conduct expressed an idea and was thus entitled to protection.104 Put another way, burning the flag could be proscribed by an ordinance against starting outdoor fires, but not by an ordinance against dishonoring the flag.105 In United States v. O’Brien,106 the Court considered the legality of a conduct restriction that had only a collateral impact on expressive speech. To protest the Vietnam War, David O’Brien burned his Selective Service registration on the steps of a Boston courthouse, in violation of the Universal Military Training and Service Act of 1948.107 Faced with a statute designed to regulate conduct that could potentially also restrict expression, the Court outlined the parameters for a restriction to pass strict scrutiny, in what has come to be known as the “O’Brien test”108: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.109 The Court upheld the regulation, finding that (1) Congress had a legitimate interest in making Selective Service registration certificates available to facilitate its Article I power to raise and support the army; (2) a law criminalizing destruction of the certificates was the most precise way to achieve such “continuing availability”; and (3) the law was aimed not at preventing O’Brien’s

99. R.A.V. v. City of St. Paul, 505 U.S. 377, 384 (1992) (“Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”). 100. 491 U.S. 397 (1989). 101. Johnson, 491 U.S. at 399. 102. Id. at 400. 103. Id. at 410. 104. Id. 105. See R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992). 106. 391 U.S. 367 (1968). 107. O’Brien, 391 U.S. at 369–70. 108. See, e.g., Johnson, 491 U.S. at 403 (referring to the “O’Brien test”). 109. O’Brien, 391 U.S. at 377; see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (quoting O’Brien , 391 U.S. at 376–77).

2015 HELL HATH NO FURY 197 ability to communicate his displeasure with government policy, but instead at maintaining the functioning of the Selective Service system.110

b. Overbreadth and Content Discrimination Beyond the content-versus-conduct distinction, there are two drafting principles that restrictions on speech must avoid: overbreadth and content discrimination.111 An overbroad statute restricts not just speech that falls outside the scope of constitutional protection, but also speech that warrants such protection.112 Generally, attacks on a statute are treated as valid only when the statute impacts the party at issue. But an exception to this rule exists for First Amendment challenges.113 When “substantial” overbreadth is present, “the law may not be enforced against anyone, including the party before the court,” even if his speech or expression could otherwise have been legitimately proscribed.114 Litigants may challenge a statute based on the assumption that “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”115 Essentially, the overbreadth doctrine focuses on avoiding the “chilling” of protected expression.116 “Content discrimination,” meanwhile, addresses the danger that the government could suppress a viewpoint by criminalizing constitutionally proscribable speech related to only one side of an issue of social or political concern.117 In other words, by proscribing only a narrow class of unprotected speech, the government could promote a position on an issue of public concern by silencing only the other side of the debate. While a statute could make it illegal in general to threaten the President, a statute could not criminalize threats to the President related to only, for example, the Affordable Care Act.118 However, when the “basis” for a speech regulation consists of “the very reason the entire class of speech at issue is proscribable,” there is no evidence of viewpoint discrimination that would threaten the statute’s constitutionality.119 For example, since obscenity is a proscribable class of speech, it would be valid

110. O’Brien, 391 U.S. at 380–82. 111. R.A.V., 505 U.S. 377, 400–02 (1992) (White, J., concurring). 112. United States v. Stevens, 559 U.S. 460, 483–84 (2010) (Alito, J., dissenting) (“Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others.”), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)). 113. See Broadrick v. Oklahoma, 413 U.S. 601, 611–12 (1973). 114. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985) (emphasis added). 115. Broadrick, 413 U.S. at 612. 116. R.A.V., 505 U.S. at 402 (White, J., concurring). 117. Id. at 387–88 (majority opinion). 118. See id. at 388–89 (explaining that if such a narrow restriction was allowed, state or federal legislation could be used to punish speakers who hold a disfavored viewpoint on an important political topic). 119. Id. at 388.

198 TEMPLE LAW REVIEW [Vol. 88 for a statute to prohibit all obscene images. It would also be valid for a statute to prohibit a narrow subset of images unrelated to a political issue, such as obscene images of people with blue eyes.120 As long as there is no “realistic possibility that official suppression of ideas is afoot,” a statute criminalizing an unprotected form of speech is valid.121

c. The Categorization of Unprotected Speech Once courts address these structural limitations, they perform a substantive analysis. In other words, there is a second prong to the question of whether a statute restricts “constitutionally protected” speech: What kind of speech is at issue? This question is important because the Supreme Court classifies some speech as “unprotected”—that is, speech the government may regulate.122 These categories are not mere exceptions within the broad rule, but are instead considered outside the protection of the First Amendment altogether.123 Chaplinsky v. New Hampshire124 is among the premiere cases on the issue,125 and provides a straightforward categorization of types of proscribable speech. The Chaplinsky Court laid out several categories of speech the government may regulate, “includ[ing] the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”126 The categories cited above are commonly referred to as the “Chaplinsky categories”127: (1) lewd and obscene, (2) profane, (3) libelous, and (4) fighting words.128 Speech that falls into one of these categories is unprotected because it does not further the First Amendment’s underlying policy of ensuring an open marketplace of ideas.129 Speech of this kind is of minimal value to society and can inflict real harm on others. Thus, the government may regulate these types of speech because the

120. Id. at 390 (providing this specific example). 121. Id. 122. See, e.g., id. at 406 (White, J., concurring) (fighting words); Roth v. United States, 354 U.S. 476, 483 (1957) (obscenity). 123. United States v. Stevens, 599 U.S. 460, 472 (2010) (arguing that while certain categories of speech are outside the scope of the First Amendment, it is a small and closely guarded group that is not easily augmented), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)). 124. 315 U.S. 568 (1942). 125. See Rodney A. Smolla, Words “Which by Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 PEPP. L. REV. 317, 319 (2009) (explaining that the Supreme Court has cited Chaplinsky more than one hundred times). 126. Chaplinsky, 315 U.S. at 571–72 (emphasis added). 127. See Keith Werhan, The Liberalization of Freedom of Speech on a Conservative Court, 80 IOWA L. REV. 51, 54 (1994) (referring to the “Chaplinsky categories”). 128. Chaplinsky, 315 U.S. at 572. 129. Id. (“It has been well observed that such utterances are no essential part of any exposition of ideas . . . .”).

2015 HELL HATH NO FURY 199 benefit of the speech “is clearly outweighed by the social interest in order and morality.”130 Application of the language from Chaplinsky has evolved over years of heavy scrutiny, and has resulted in disparate Supreme Court opinions that have both expanded and eliminated speech regulations.131 Today the language of Chaplinsky—while seemingly so clear—is perhaps best considered a guide for courts to use when analyzing speech regulations, rather than an exhaustive list of proscribable forms of speech.132 As Part II.D.3 will address in further detail, the fighting words doctrine in particular has evolved over time through case law.133 Identifying a particular type of speech or expression as unprotected—such as that falling within a Chaplinsky category—is crucial to parties successfully arguing for a statute’s validity because it helps satisfy the requirements of O’Brien.134 If the speech is unprotected, it is within the power of the government to regulate, and the regulation is by its very nature unrelated to the suppression of First Amendment speech. Thus, for a regulation to survive strict scrutiny it must (1) meet the requirements of unprotected speech or nonspeech, guided by the framework of Chaplinsky;135 and (2) be based on an “important governmental interest,” satisfying the final prong of the O’Brien test.136

2. Obscenity Attempts to regulate depictions of sexuality and nudity overwhelmingly classify the depictions within Chaplinsky’s first category as “lewd and obscene.”137 In Miller v. California,138 the Supreme Court laid out the test for the trier of fact to consider when classifying pornography as obscene: (a) [W]hether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the

130. Id. 131. Compare New York v. Ferber, 458 U.S. 747, 754–55 (1982) (citing Chaplinsky to explain the legitimacy of a law banning child pornography), with Texas v. Johnson, 491 U.S. 397, 409 (1989) (explaining that flag burning did not fall within the “small class of ‘fighting words’” defined by Chaplinsky). 132. See Smolla, supra note 125, at 321 (arguing that because Chaplinsky introduces its proscribable categories of speech with the word “include,” the Court was merely providing a few prominent examples of the types of speech that could be regulated, rather than an exhaustive list). 133. See infra Part II.D.3 for a detailed discussion of the difference between true threats and fighting words. 134. See supra notes 108–10 and accompanying text for a review of the O’Brien test. 135. For the purposes of the revenge porn analysis, only two of the four Chaplinsky categories—obscenity and fighting words—will be discussed. 136. United States v. O’Brien, 391 U.S. 367, 377 (1968). 137. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942); see, e.g., United States v. Stevens, 559 U.S. 460 (2010) (“crush videos” that appeal to the prurient interest), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nude dancing in a night club); Miller v. California, 413 U.S. 15 (1973) (sexually explicit material in the mail); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) (obscene films showed in a movie theater). 138. 413 U.S. 15 (1973).

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prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.139 The Court, aware of the dangerous potential impact of the holding, cautioned that “[s]tate statutes designed to regulate obscene materials must be carefully limited.”140 Applying the proper test for obscenity, the next step is to clarify what type of government interest qualifies as important or substantial under O’Brien. States are empowered to provide for the “public health, safety, and morals.”141 The Supreme Court identified as legitimate an interest in “stemming the tide of commercialized obscenity.”142 Even if the obscene material could be restricted to those in society interested in seeing it, the state maintains an interest in the overall quality of life of the community and can restrict the activity in public spheres.143 Prominent examples of such restrictions being upheld include a ban on playing “obscene” films in a public theater144 and a ban on all-nude dancing in strip clubs.145 Despite this potential avenue for regulation, attempts to regulate depictions of sexuality are struck down with great frequency.146 As a result, in general, scholars agree that legislation classifying revenge porn as obscene is unlikely to pass constitutional muster.147 Regardless of whether material is offensive to some people, the Supreme Court has made it clear that “[s]exual expression which is indecent but not obscene is protected by the First Amendment.”148

139. Miller, 413 U.S. at 24 (citation omitted). 140. Id. at 23–24. 141. Barnes, 501 U.S. at 569 (emphasis added). 142. Slaton, 413 U.S. at 57; see also Barnes, 501 U.S. at 568 (“[T]he statute’s purpose of protecting societal order and morality is clear from its text and history.”). 143. Slaton, 413 U.S. at 59 (“It concerns the tone of the society, the mode, . . . the style and quality of life . . . . A man may be entitled to read an obscene book in his room . . . . [b]ut if he demands a right to obtain the books and pictures he wants in the market . . . then to grant him his right is to affect the world about the rest of us . . . .” (quoting Alexander Bickel, On Pornography II: Dissenting and Concurring Opinions, PUB. INT., Winter 1971, at 25, 25–26)). 144. Id. at 69. 145. Barnes, 501 U.S. at 560. 146. E.g., Butler v. Michigan, 352 U.S. 380, 383 (1957) (declaring unconstitutional a law which prohibited all distribution of literary material that contained passages unfit for children because it “burn[ed] the house to roast the pig” to reduce “the adult population of Michigan to reading only what is fit for children”); see also Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (regarding whether or not a sexual scene in a film was obscene: “I know it when I see it, and the motion picture involved in this case is not that”). 147. See e.g., Calvert, supra note 18, at 683 (noting that revenge porn sexual images are not obscene within the First Amendment meaning of the word). 148. Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989).

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3. Fighting Words The implications of the second half of the sentence in Chaplinsky that classifies unprotected speech are critical. The Supreme Court described fighting words as “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”149 As one scholar concedes, “[i]t is highly unlikely” that the Court intended this explanation to “bear the hard doctrinal weight that is sometimes ascribed to it.”150 Nonetheless, the word “or” has become important in defining two different classes of speech.151 The first class is speech that has a tendency “to cause [a] violent reaction,”152 such as the type of speech actually at issue in Chaplinsky.153 In that case, the appellant called a city official a “God damned racketeer” and “a damned Fascist.”154 In this form, fighting words are the kind of personally abusive speech that would, as a matter of common knowledge, likely provoke a violent reaction.155 The second type of speech, more relevant to the purposes of this Comment, is “th[at] which by [its] very utterance inflict[s] injury.”156 By way of distinction and clarity, one might think of this class as designed to communicate an impending violent action.157 This type of language is better thought of as a true threat.158 Essentially it is the difference between telling an antagonist “I challenge you to a duel at 2 p.m,” and, “I will shoot you at 2 p.m.” Either statement could be proscribed by statute, but it would be an error to conflate the two doctrines. Fighting words as a whole are considered beyond the scope of First Amendment protection because “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.”159 Hence, “punishment as a criminal act would raise no question under that instrument.”160 The speech at issue must not be just personally abusive, but also directed at a person.161 Further, a violent reaction is not a

149. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (emphasis added). 150. Smolla, supra note 125, at 321. 151. Id. (“[I]t is plain that both approaches to the regulation of expression are being invoked, with the word ‘or’ in the middle.” (emphasis added)). 152. Cohen v. California, 403 U.S. 15, 22 (1971). 153. Chaplinsky, 315 U.S. at 569. 154. Id. (internal quotation marks omitted). 155. Cohen, 403 U.S. at 20. 156. Chaplinsky, 315 U.S. at 572. 157. Watts v. United States, 394 U.S. 705, 708 (1969) (holding that the statements made by the petitioner were a “kind of political hyperbole”). 158. See id. at 708 (dealing with death threats made against the President during a speech). 159. Chaplinsky, 315 U.S. at 572 (emphasis added) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)). 160. Id. at 572 (quoting Cantwell, 310 U.S. at 309). 161. See, e.g., Cohen v. California, 403 U.S. 15, 20 (1971) (“No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.”); Cantwell, 310 U.S. at 308–09 (“It is not claimed that he intended to insult or affront the hearers . . . . [H]e wished only to interest them in his propaganda.”).

202 TEMPLE LAW REVIEW [Vol. 88 necessary result, nor is the speaker’s intent to elicit a violent reaction (or action); there simply must be a likelihood that a violent reaction could occur.162 Applying the proper framework for proscribable “fighting words,” courts’ next step is to identify the type of government interest that may be considered legitimate. One of the government’s primary justifications for regulating fighting words has been that a state may use its police power to protect the health and safety of the citizenry and prevent the fear such words inspire.163 For example, the government has used this justification to regulate restricting the location of protests near abortion clinics164 or punishing someone who caused a panic by “falsely shouting ‘fire’ in a [movie] theatre.”165 Similarly, the ability to ban true threats stems from the government’s interest in protecting individuals from the fear of violence and “from the disruption that fear engenders.”166 Some scholars have expressed concern about allowing the government to regulate speech under the framework of true threats because of “the suggestion that there are occasions when words alone may inflict injury that society may redress without abridging the guarantees of the First Amendment.”167 Because “true threats” is a developing area, there is a relative paucity of Supreme Court decisions that explicitly touch on it.168 Lower courts throughout the United States have also provided limited guidance. Cases upholding regulations that punish expressions often involve issues of either sexuality or race in connection with some physical action that goes beyond the mere language at issue.169 In one case, a Wisconsin criminal court went so far as to declare that under certain circumstances, resorts to personal abuse, which inflict injury “by their very utterance,“ could be considered “abusive fighting words” that are “not protected by the First Amendment.”170

162. See, e.g., Cohen, 403 U.S. at 20 (noting that there was no evidence that a violent reaction occurred from anyone who observed the defendant’s clothing, which contained offensive language); Cantwell, 310 U.S. at 309 (noting a person may be guilty of using fighting words if his statement is likely to provoke violence, even if that was not the speaker’s intent). 163. See Hill v. Colorado, 530 U.S. 703, 715 (2000). 164. Id. (explaining that the statute is an exercise of police power intended to protect the health and safety of the citizenry); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 776 (1994) (finding provisions of an injunction establishing a thirty-six-foot buffer zone surrounding clinic entrances as not violating the First Amendment). 165. Schenck v. United States, 249 U.S. 47, 52 (1919). 166. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). 167. E.g., Smolla, supra note 125, at 319. 168. Virginia v. Black, 538 U.S. 343 (2003); NAACP v. Claiborne Hardware, 458 U.S. 886 (1982); Watts v. United States, 394 U.S. 705 (1969). 169. See, e.g., In re John M., 36 P.3d 772, 777 (Ariz. Ct. App. 2001) (categorizing the defendant’s yelling of racial slurs as fighting words); State v. Hubbard, No. C6-00-1836, 2001 WL 568973, at *1–2 (Minn. Ct. App. May 29, 2001) (upholding the disorderly conduct conviction of appellant, who repeatedly flashed a sexually suggestive sign at complainant, while both were driving on the highway, because his “predatory conduct did indeed arouse alarm and anger . . . [and] tended to incite a breach of the peace”); State v. Ovadal, 671 N.W.2d 865, ¶¶ 2–4, 14–17 (Wis. Ct. App. Oct. 7, 2003) (upholding defendant’s conviction for yelling “whore” and “harlot” at a woman who was preparing to go to a ). 170. Ovadal, 671 N.W.2d 865, ¶ 17.

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However, within a developing area of law, a quantity of decisions on a subject is not nearly so valuable as the quality of those decisions. A recent case, which may serve as precedent for future applications of the true threats principle, can be a valuable guide. Virginia v. Black171 is such a case, and deals with an example of expressive speech as a threat that is all too common in America: cross burning. The Virginia statute at issue in Black read as follows: It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.172 The difficulty of the case was that cross burnings had not only been used to generate fear of impending violence, but had also been used to communicate a shared ideology among members of the Ku Klux Klan.173 As such, a blanket ban on cross burnings ran the risk of overbreadth by criminalizing legally protected expressive speech, while complete removal of the statute would allow this “particularly virulent form of intimidation” to continue.174 Because states are permitted to ban true threats, the Court first considered whether cross burning represented a true threat.175 A ban on true threats protects the target not just from the harm threatened but also from the fear that threats of harm can cause. Thus, speech that intimidates others can be classified as a true threat.176 In the Court’s words: “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”177 To determine if cross burning qualified as an intimidating threat, the Court looked to the United States’ history of cross burning. The Court cited examples of cross burning at synagogues and churches, in front of a proposed housing project, and in front of a labor leader’s home on the eve of an election.178 This history showed the practice was often intimidating, and done with an intent to instill “pervasive fear in victims.”179 “These cross burnings embodied threats to people whom the Klan deemed antithetical to its goals. And these threats had special force given the long history of Klan violence.”180

171. 538 U.S. 343 (2003). 172. Black, 538 U.S. at 348 (emphasis added) (quoting VA. CODE ANN. § 18.2-423 (1996)). 173. Id. at 354. 174. Id. at 363. 175. Id. at 359. 176. Id. at 360. 177. Id. (emphasis added). 178. Id. at 354–55. 179. Id. at 360. 180. Id. at 355.

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Once cross burning itself was found to fit within the structure of a “true threat,” the Court next analyzed the statute for possible unconstitutional content discrimination.181 The Court noted that the Virginia Supreme Court’s analogy to cases like R.A.V. v. City of St. Paul182 was not dispositive of the issue.183 Proper analysis required the Court to revisit and re-explain the policy of content discrimination set forth in R.A.V.184 A content-based discrimination analysis requires an understanding of whether or not the government is trying to endorse one side of an issue of social or political importance by silencing only the other side of the issue.185 A law can withstand this scrutiny when the regulation is “based on the very reasons why the particular class of speech . . . is proscribable.”186 Thus, threats are proscribable, and threats against the President are proscribable as a subclass, but threats against the President based on a political position are not proscribable.187 Likewise, obscenity is proscribable, and obscene images that are deemed the most lewd could be proscribable as a subclass, but the government could not proscribe obscenity containing only offensive political messages.188 For its content discrimination analysis, the Court once again turned to American history, and noted that people had burned crosses to intimidate on more than just racial or religious grounds.189 Further, the statute at issue was not concerned with whether the perpetrator acted based on the victim’s race, gender, religion, or sexuality.190 If the statute had been so specific, it may have been found to regulate only expressive speech of a disfavored political perspective. As a result, it would likely have failed the content-discrimination prong of the analysis. However, the statute did not prevent cross burning when related to only a single political perspective, but instead prevented cross burning because it was a type of threat that the state found particularly dangerous. In the Court’s own words: The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may

181. Id. at 360. 182. 505 U.S. 377 (1992). 183. Black, 538 U.S. at 361. 184. 505 U.S. 377 (1992). See supra Part II.D.1.b for a detailed analysis of overbreadth and content discrimination. 185. Black, 538 U.S. at 361 (explaining that the R.A.V. holding declared a law unconstitutional because it banned fighting words only when used in relation to expression of a specific viewpoint, which would effectively silence citizens who oppose the government’s favored position on a single topic). 186. R.A.V., 505 U.S. at 393. 187. Black, 538 U.S. at 362. 188. Id. 189. Id. 190. Id.

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regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment.191 Indeed, several Justices wrote concurring opinions to emphasize the point that cross burning “with the intent to intimidate” would not violate the First Amendment.192 The Supreme Court majority, however, declared the statute unconstitutional based on a separate provision.193 The unconstitutional provision, the majority held, was that which deemed the act of cross burning alone to be prima facie evidence of intent to intimidate.194 The Court found that this provision violated the overbreadth doctrine,195 stating: “[The law] does not distinguish between a cross burning at a public rally or a cross burning on a neighbor’s lawn. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers.”196

4. The Present Court’s Free Speech Jurisprudence197 Despite the value of these cases in identifying legitimate government interests substantial enough to restrict speech, past precedent is not necessarily dispositive in front of the highest court.198 History has shown that the proper inquiry is not what the Supreme Court has done, but rather what the present Supreme Court will do.199 As such, it is recent Supreme Court jurisprudence that

191. Id. at 363 (emphasis added). 192. Id. at 368 (Stevens, J., concurring) (“Cross burning with ‘an intent to intimidate’ unquestionably qualifies as the kind of threat that is unprotected by the First Amendment.” (citation omitted)); id. (Scalia, J., concurring) (“[A] State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate.”). 193. Id. at 364 (majority opinion). 194. Id. at 348. 195. See supra Part II.D.1.b for a detailed analysis of overbreadth and content discrimination. 196. Black, 538 U.S. at 366. 197. During the writing of this Comment, the Supreme Court decided Elonis v. United States, 135 S. Ct. 2001 (2015), which considered whether threatening messages posted to Facebook constitute unprotected speech. The conviction was reversed because the jury instructions directed that a verdict must be based on what a “reasonable person” would conclude about the communications, instead of focusing on the defendant’s mental state. Elonis, 135 S. Ct. at 2011–13. Chief Justice Roberts noted, “There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication . . . with knowledge that the communication will be viewed as a threat.” Id. at 2012. The Court focused on the validity of the jury instructions and found it was “not necessary to consider any First Amendment issues.” Id. 198. See Rasul v. Bush, 542 U.S. 466, 497 (2004) (Scalia, J., dissenting) (“[T]oday’s opinion, and today’s opinion alone, extends the habeas statute . . . . No reasons are given for this result; no acknowledgment of its consequences made.”), superseded by statute, Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739; Lawrence v. Texas, 539 U.S. 558, 571–72 (2003) (“In all events we think that our laws and traditions in the past half century are of most relevance here.”). 199. For example, compare Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld segregation

206 TEMPLE LAW REVIEW [Vol. 88 is the most helpful—though by no means definitive—indication of the Court’s willingness to consider regulations on free speech. In United States v. Stevens,200 the Court considered the validity of 18 U.S.C. § 48, which addressed the growing popularity of “crush videos.”201 Crush videos are a type of pornography which depict “women slowly crushing animals to death,” including cats, dogs, mice, and hamsters.202 The statute established a criminal penalty for anyone who “create[d], s[old], or possesse[d] a depiction of animal cruelty . . . for commercial gain.”203 Important to the Court’s analysis was that the statute itself “d[id] not address underlying acts harmful to animals, but only portrayals of such conduct.”204 Thus, the statute as written punished not the conduct of animal cruelty but the images themselves, and such a statute was presumed invalid unless classified within a Chaplinsky category.205 The government first argued not that such speech fit within one of the enumerated Chaplinsky categories, but rather, that depictions of animal cruelty should have been added to the list.206 Using the language of Chaplinsky as a guide, the government asserted that the benefit of the speech “[wa]s clearly outweighed by the social interest in order and morality.”207 The Court rejected this argument, and said that to reduce the validity of freedom of speech to a balancing test was “startling and dangerous.”208 The Court explained that Chaplinsky’s balancing language did not provide a test for how to identify new categories of unprotected speech, but instead was merely illustrative of how already unprotected speech was evaluated.209 Moving to an alternative argument, the government justified the statute as criminalizing only obscene content and explained that the language of the statute’s exceptions was based heavily on the language of Miller.210 The government contended that providing an exception for work of “serious literary, artistic, political or scientific value” would protect expressions with legitimate based on race within train cars, with Brown v. Board of Education, 349 U.S. 294 (1955), which famously prohibited racial segregation in public schools and overruled the Court’s Plessy decision. Additionally, compare Carter v. Carter Coal Co., 298 U.S. 238 (1936), which found that commerce is plainly distinct from production, and therefore not within the power of Congress to regulate, with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which found that intrastate industrial activities impact interstate commerce. 200. 559 U.S. 460 (2010), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)). 201. Stevens, 559 U.S. at 465. 202. Id. 203. 18 U.S.C. § 48(a) (2006), invalidated by United States v. Stevens, 559 U.S. 460 (2010). 204. Stevens, 559 U.S. at 464 (emphasis added). 205. Id. at 468–69 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)). 206. Id. at 469. 207. Id. at 470 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992)). 208. Id.; see also Miller v. California, 413 U.S. 15, 25 (1973) (deriding the applicability of a balancing test to determine a regulation on speech by declaring “that concept has never commanded the adherence of more than three Justices at one time”). 209. Stevens, 559 U.S. at 472. 210. Id. at 479.

2015 HELL HATH NO FURY 207 merit, but permit regulation of obscene crush videos.211 The Court also rejected this “serious value” exception, saying it could not be the test for protected speech because “[m]ost of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.”212 Finally, in a manner instructive of the Court’s statutory analysis, the Stevens majority considered the overbreadth doctrine.213 The plain language of the statute prohibited depictions of animal cruelty, which included any depiction where a living animal was “maimed, mutilated, tortured, wounded, or killed.”214 Although Congress’s intent was to prevent , the words “wounded” and “killed” did not necessarily imply cruel treatment.215 Further, while the statute prohibited only “illegal conduct” that harmed animals, that term was broad. “Illegal conduct” could have included violations related to anything from licenses to regulations, and the definition was subject to the variances of each jurisdiction.216 Within this framework, the Court described the criminal statute as one of “alarming breadth.”217 By way of example, the Court noted that all hunting is illegal in Washington D.C., and so the sale of hunting magazines within the district would automatically fall under the prohibited conduct of the statute.218 Justice Alito, alone in dissent, gave weight to the content of the images: “The animals used in crush videos are living creatures that experience[d] excruciating pain. Our society has long banned such cruelty . . . .”219 The next year the Court decided Snyder v. Phelps.220 The issue was the Westboro Baptist Church’s practice of picketing funerals to publicize its message that God hates the United States for its tolerance of homosexuality.221 Members of the church stood about a thousand feet from the funeral of a marine killed in Iraq, holding signs that read: “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.”222 The marine’s father testified that “he [was] unable to separate the thought of his dead son from his thoughts of Westboro’s picketing.”223 In addition to more than six hundred military funerals, the church had already also picketed, for example, the funerals of police officers, firefighters, and victims of “shocking crimes,” sending out press releases of their

211. Id. (quoting Miller, 413 U.S. at 24). 212. Id. 213. Id. at 473. 214. Id. at 474. 215. Id. 216. Id. at 475–76. 217. Id. at 474. 218. Id. at 476. 219. Id. at 496 (Alito, J., dissenting). 220. 562 U.S. 443 (2011). 221. Snyder, 562 U.S. at 448. 222. Id. 223. Id. at 450.

208 TEMPLE LAW REVIEW [Vol. 88 plans in advance.224 Justice Alito’s dissent captured a visceral response to the church’s actions: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”225 The majority, however, saw the speech not as a personal attack, but instead as a contribution to public discourse.226 This distinction was extremely important. While the First Amendment reflects a national commitment that debate on public issues be “wide-open,”227 when purely private concerns are at issue, “First Amendment protections are often less rigorous.”228 Speech can be considered public when it relates to political or social issues, is newsworthy, or is generally of concern to the public.229 On the other hand, the Court cited as an example of private speech the underlying facts in City of San Diego v. Roe,230 which found that “videos of an employee engaging in sexually explicit acts did not address a public concern.”231 Guided by this framework, the content of Westboro Baptist Church’s protests—while they “may [have] fall[en] short of refined social or political commentary”—were public in that they related to issues such as the moral conduct of the United States and homosexuality in the military.232 The Court found that public speech was too important to be regulated just because it was “upsetting or arouses contempt.”233 The Court set aside the jury verdict and dismissed the civil charges against Westboro Baptist Church because “[i]n a case such as this, a jury is unlikely to be neutral with respect to the content of [the] speech, posing a real danger of becoming an instrument for the suppression of . . . vehement, caustic, and sometimes unpleasan[t] expression.”234

5. Legislative Response in Light of First Amendment Rulings Although a growing number of states have proposed criminal legislation to curb revenge porn, there is general acknowledgment that broad criminal statutes would likely prove unconstitutional.235 This sentiment is buoyed by the recent

224. Id. at 466–67 (Alito, J., dissenting). 225. Id. at 463. 226. Id. at 454 (majority opinion) (“[T]he overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues [than the decedent].”). 227. Id. at 452 (internal quotation marks omitted). 228. Id. 229. Id. at 453. 230. 543 U.S. 77 (2004) (police officer was discharged for selling homemade sexually explicit videos). 231. Snyder, 562 U.S. at 453. 232. Id. at 454. 233. Id. at 458. 234. Id. (internal quotation marks omitted) (second and third alterations in original) (ellipsis in original). 235. See Calvert, supra note 18, at 683 (noting that recent decisions of the Supreme Court indicate it is highly unlikely that revenge porn will be classified either as obscene or as a new category of unprotected speech); Laird, supra note 49, at 48 (noting criticism from the American Civil Liberties Union that such laws restrict free speech); Stokes, supra note 17, at 942 (declaring that the criminal

2015 HELL HATH NO FURY 209 decisions of the Supreme Court.236 As a consequence, there is also a growing trend to narrow statutes in order to withstand First Amendment scrutiny.237 For example, Pennsylvania’s proposed legislation reads: A person commits the crime of intimate partner harassment by exposing a photograph, film, videotape or similar recording of the identifiable image of an intimate partner who is nude or explicitly engaged in a sexual act to the view of a third party for no legitimate purpose and with the intent to harass, annoy or alarm the person depicted.238 The language “legitimate purpose” implies a legal standard of “rational basis” scrutiny, which has been historically easy to overcome.239 Additionally, the inclusion of “intent” creates another triable issue of fact regarding the defendant’s state of mind in relation to his actions.240 California maintains a statute that criminalizes the intentional distribution of an “image of the intimate body part or parts of another identifiable person, or an image of the person engaged in an act of sexual intercourse . . . under circumstances in which the persons agree or understand that the image shall remain private.”241 New Jersey offers the longest standing, and much celebrated,242 version of such a law. An actor commits a crime when “knowing that he is not licensed or privileged to do so, he discloses any . . . reproduction of the image of another person whose intimate parts are exposed.”243 The statute also includes an affirmative defense where, “the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified.”244 The disposition of recent First Amendment cases, and the proliferation of revenge porn laws, underscores a broader point: while judges and legislators debate the finer points of constitutional doctrines, real people are being hurt by revenge porn every day. Something must be done to balance the protection of our nation’s fundamental freedoms and its citizens’ basic human dignity, or soon one will be sacrificed to satisfy the other.

regulations appeared “overbroad and potentially unconstitutional”). 236. See supra Part II.D.4 for a discussion of recent Supreme Court cases dealing with the First Amendment. 237. See, e.g., Danielle Keats Citron, ‘Revenge Porn’ Should Be a Crime in U.S., CNN, http://www.cnn.com/2013/08/29/opinion/citron-revenge-porn/index.html (arguing a “narrowly crafted criminal statute” can be reconciled with the First Amendment) (last updated Jan. 16, 2014); Eugene Volokh, Florida “Revenge Porn” Bill, VOLOKH CONSPIRACY (Apr. 10, 2013, 7:51 PM), http://www.volokh.com/2013/04/10/florida-revenge-porn-bill (“[A] suitably clear and narrow statute . . . would likely be upheld by the courts.”). 238. S.B. 1167, 197th Gen. Assemb., Sess. of 2013 (Pa. 2013) (emphasis added). 239. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938) (establishing a standard of review that is extremely deferential to the legislature, allowing laws to stand so long as the government can assert a “rational basis” for them). 240. See Sandstrom v. Montana, 442 U.S. 510, 523 (1979). 241. CAL. PENAL CODE § 647(j)(4)(A) (West 2015). 242. See infra notes 250–51 for a discussion of those who applaud the New Jersey law. 243. N.J. STAT. ANN. § 2C:14-9(c) (West 2015). 244. Id. § 2C:14-9(d)(1).

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III. DISCUSSION Courts should analyze revenge porn as proscribable speech based on its impact, rather than its content. That is, the inquiry should not be whether or not its content is obscene, but rather whether its impact causes harm and fear that rises to the level of a true threat.245 Revenge porn, by definition, involves depictions of nudity and sexuality. The general trend to regulate depictions of sexually explicit material has been to classify it as obscene. But the Supreme Court has demonstrated an unwillingness to label images that appeal “to the prurient interest” as obscene.246 Furthermore, cases such as Stevens and Snyder, discussed in Section II, indicate the present Court will vehemently defend speech, even when such a defense protects depictions as offensive as animal cruelty or funeral protests. With this backdrop, legislators are looking to criminalize revenge porn by crafting statutes with elaborate restrictions and exceptions, in what seems to be anticipation of having to defend them in court.247 These qualifiers, however, make the statutes so narrow as to render them virtually useless.248 To paraphrase Justice Frankfurter, these statutes roast a pig when they need to burn the house.249 This Section argues that the primary problem with drafting legislation to prevent revenge porn is the drafters’ and interpreters’ perspective of the statute. The mere presence of nudity in this form of intimate media is not the reason the practice should be criminalized. Rather, it is the harm the postings cause to the subjects of the media, in terms of both mental well-being and physical danger. Part III.A reviews the existing legislation, and the gaps created by overly cautious legislators concerned with violating free speech protections. Part III.B argues that posting revenge porn should be classified as a true threat. Finally, Part III.C illustrates what an effective revenge porn statute might look like if drafted with the true threats doctrine in mind, rather than focused on the Court’s obscenity jurisprudence.

A. Existing State Legislation Is Ineffective To appreciate the impact these statutes may have, it is helpful to take a deeper look at a few of them. Many view the New Jersey statute as the

245. See supra Part II.D.3 for a review of the framework of the fighting words analysis. 246. Reno v. American Civil Liberties Union, 521 U.S. 844, 872 (1997) (affirming that sexual expressions, even if indecent or offensive, do not rise to the level of obscenity); see also Stokes, supra note 17, at 944 (“Some have argued that revenge porn does fit within the ‘obscenity’ category and that criminalization is therefore constitutional. This argument, however, relies on an extension of the relevant case law that precedent does not support.” (footnote omitted)). 247. See, e.g., Stokes, supra note 17, at 941–44 (describing how the language of the California statute was dramatically cut back before being passed, and how the Florida bill was shot down in part due to First Amendment concerns). 248. See, e.g., id. at 942 (describing revenge porn laws as either unconstitutionally overbroad, or so narrow they will be ineffective in the majority of cases). 249. Butler v. Michigan, 352 U.S. 380, 383–84 (1957) (coining the phrase “burning the house to roast a pig” to describe a statute’s overbreadth).

2015 HELL HATH NO FURY 211 preeminent revenge porn law in the country.250 One important advocate of criminalization described the statute as “treat[ing] the conduct seriously while providing specific definitions and affirmative defenses that guard the statute against First Amendment overbreadth.”251 Section 2C:14-9 states: c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. . . . d. It is an affirmative defense to a crime under this section that: (1) the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c . . . .252 This statute is indeed at the vanguard of revenge porn criminalization, so it is useful to highlight what the legislators got right. First, an important aspect of the New Jersey law is that it gives clear definitions of words that courts may otherwise struggle with.253 Second, a violation of the statute is a felony rather than a misdemeanor.254 Not only is felony status a stronger deterrent to perpetrators, but it also signals to the police officers and district attorneys, who identify and prosecute such offenses, that they should attribute a greater level of importance to statutory violations. For example, in one case, a victim got help from U.S. Senator Marco Rubio, who directed the Florida Office of the Attorney General to take her case after the police initially declined to assist.255 Prosecutors traced the leak of her intimate media to the IP address of the victim’s ex-boyfriend.256 But then the charges were dismissed.257 The prosecutors could not search the ex-boyfriend’s computer without a warrant, and they could not justify seeking a warrant for a misdemeanor.258

250. See Stokes, supra note 17, at 942 (noting that the New Jersey statute has been described as being “an extremely promising approach”). 251. Martinez, supra note 8, at 241 (alteration in original) (citing quoting Mary Anne Franks, Combating Non-Consensual Pornography: A Working Paper (Sept. 7, 2014) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336537&download=yes). 252. N.J. STAT. ANN. § 2C:14-9(c)–(d)(1) (West 2015) (emphasis added). 253. See, e.g., People v. Stone, 982 N.Y.S.2d 733, 735 (N.Y. Crim. Ct. 2014) (text message of a photograph did not constitute a “display”); People v. Barber, No. 2013NY059761, 2014 WL 641316, at *8 (N.Y. Crim. Ct. Feb. 18, 2014) (unpublished table decision) (posting images to the Internet did not constitute a “public display”). 254. Martinez, supra note 8, at 241. 255. Citron & Franks, supra note 21, at 367. 256. Id. 257. Id. 258. Id.

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Some supporters extol the virtue of the affirmative defenses in the statute, which appear to provide cover to the adult film industry.259 But that statutory defense is exactly what is wrong with this law. It is true the law “has never faced a serious challenge.”260 But it is not hard to imagine how a clever person who intended to distribute intimate images could get around the law. The statute provides that “[i]t is an affirmative defense to a crime under this section that . . . the actor posted or otherwise provided prior notice to the person of the actor’s intent.”261 All a distributor would have to do is tell the victim about his plan. Not only is this an obvious loophole that perpetrators will no doubt exploit once they learn of it, but it also protects some of the most egregious and violent versions of revenge porn. With so much for victims to lose, from reputation to career prospects, perpetrators have used the threat of posting intimate media as a means to dominate their partners within their relationships.262 In one case, a woman was told by her ex-boyfriend that he was going to auction off a CD of her intimate media on eBay.263 In another case, a victim was told her pictures would be posted to Facebook.264 In short, the threat of putting intimate media online is a means for a person to manipulate and control his romantic partner, and is seen by some as a form of domestic abuse.265 Yet this much-lauded New Jersey statute makes such a threat a specific affirmative defense to punishment. Turning to California, the relevant portion of the statute makes it a misdemeanor when: (4)(A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. . . . (C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.266 Like the New Jersey law, the California law has positive aspects. First, there are again clear definitions of specific portions of the law, including “intimate

259. E.g., Martinez, supra note 8, at 241. 260. Stokes, supra note 17, at 941. 261. N.J. STAT. ANN. § 2C:14-9(d)(1) (West 2015). 262. See Citron & Franks, supra note 21, at 351–52 (discussing revenge porn’s serious impact on victims); see also State v. Parsons, No. 10-06-01372, 2011 WL 6089210, at *1 (N.J. Super. Ct. Dec. 8, 2011) (defendant posted pictures of his former partner to Twitter after getting angry that she “told [him] off”). 263. Stokes, supra note 17, at 943. 264. Id. 265. See Citron & Franks, supra note 21, at 351. 266. CAL. PENAL CODE § 647(j)(4)(A) (West 2015).

2015 HELL HATH NO FURY 213 body parts,” which reduce the possibility of confusion in the courtroom. Second, the California law follows a trend that the proposed Pennsylvania law, and many other proposed laws, have adopted: including statutory provisions requiring that the image must be of another identifiable person.267 This is almost certainly an attempt to narrow the statutes to survive overbreadth scrutiny, but unlike other such attempts, it is a step in the right direction. It addresses online posts that include the victim’s name, address, contact details, or social networking pages. If a major reason for these posts is to humiliate or harass the victim, making identification of the victim an element of the crime deals with this problem. The California statute also improves the efficiency of adjudication, while addressing the possibility of a defendant being charged with a crime he did not commit. For example, without this qualifier, a defendant might be charged with posting intimate media of Person A, when actually the media was of Person B. If the image was unidentifiable, it could be difficult to prove his innocence. Of course, this is more likely a theoretical than practical issue, as there are so many ways that a defendant could meet this burden, all of which do not merit attention. Still, it is overall a valuable element within the statute because it reduces the effectiveness of a “parade of horribles” argument seeking to overturn the law. Recent emendation to the cited California statute aimed to address a heavily criticized aspect of the original legislative language.268 Before, the statute had punished any person who “photographs or records . . . another identifiable person.”269 In order to appreciate the change, it is useful to consider the implications of the previous statutory text. The language of the original law, addressing only intimate media of “another identifiable person,” explicitly excluded from coverage distribution of any self-photography. As noted earlier, the vast majority of revenge porn is self-photography.270 Thus, the California law eliminated from its scope the majority of victims. This may have been a drafting error, or perhaps it was drafted to reflect the public opinion that victims of revenge porn “brought it upon themselves” by creating the media.271 But even though self-photography is a strong indication of consent, it is not inherently more consensual than intimate media where a partner captures the images. The statute, as amended, punishes any person who “intentionally distributes the image of the intimate body part or parts of another identifiable

267. See supra note 85 and accompanying text for a sample of some of the states that have included the identifiable person requirement in their laws. 268. See, e.g., Martinez, supra note 98, at 241–43 (pointing out several drafting holes which create huge exceptions to punishment); Stokes, supra note 17, at 941 (criticizing the breadth of perpetrators exempted from punishment under the California law); Kelly, supra note 46. 269. See People v. Johnson, 234 Cal. App. 4th 1432 (Cal. Ct. App. 2015) (emphasis added) (quoting the original statutory language). 270. See supra note 45 and accompanying text, which describes how the overwhelming majority of intimate media is self-photography. 271. See supra note 66 and accompanying text for an explanation of society’s general feelings toward revenge porn victims.

214 TEMPLE LAW REVIEW [Vol. 88 person.”272 While this change ameliorated a serious flaw in the statute’s language, it is doubtful that it will change the statute’s ineffectiveness. The California law makes it a crime to distribute these images only “under circumstances where the parties agree or understand that the image shall remain private.”273 Like its New Jersey counterpart, the California law has an exception that almost completely swallows the rule. In the absence of some sort of binding written contract between the parties, all a defendant needs to do to evade punishment is contest the understanding of privacy between him and his partner.274 Given the (1) lack of public sympathy towards victims of revenge porn,275 (2) growing popularity and number of revenge porn websites,276 (3) presence of hackers,277 and (4) possibility that phones or laptops that contain intimate media could be misplaced, a defendant could credibly argue that it was not his understanding that the images would remain private. Finally, in contrast to the New Jersey law, the California law makes distribution of revenge porn a misdemeanor. For the reasons discussed above, making the punishment a misdemeanor rather than a felony reduces the effectiveness of the law.278 The California legislature created a law that does little more than pay lip service to the issues surrounding revenge porn. The law reaches almost no one, gives police very little ability or incentive to enforce it, and provides a nearly insurmountable defense. The law essentially allows its drafters to attend fundraisers as champions of both free speech and women’s rights, without taking a meaningful stance on either issue. Despite what advocates may say, victims in California are sure to learn that while this law identifies an issue, it provides no practical solution.

B. Revenge Porn Should Be Classified as True Threats As existing statutes, case law, and scholarship have shown, to argue that depictions of consensual sexual acts of adults rise to the level of obscenity is futile. Given the Supreme Court’s obscenity decisions, lower courts would almost certainly find statutes classifying revenge porn as obscene unconstitutional. Thus, legislators have attempted to make the statutes more palatable for judges. However, what these statutes accomplish in practice is to avoid judicial scrutiny by another means; they are so narrow they are not

272. CAL. PENAL CODE §647(j)(4)(A) (West 2015) (emphasis added). 273. Id. 274. See Martinez, supra note 8, at 243 (arguing that if the defendant and victim disagree about the level of privacy associated with the tapes, conviction could become difficult or impossible). 275. See supra note 66 and accompanying text for a review of public sentiment towards revenge porn victims. 276. See Steven Brill, The Growing Trend of ‘Revenge Porn’ and the Criminal Laws that May Follow, HUFFPOST CRIME (Feb. 25, 2014, 5:33 PM), http://www.huffingtonpost.com/steven-brill/the- growing-trend-of-revenge-porn_b_4849990.html. 277. See supra notes 13–14 and accompanying text for information on hackers who acquire intimate media. 278. See supra notes 254–58 and accompanying text for an explanation of the consequences that making revenge porn a misdemeanor, rather than a felony, has on its prosecution in court.

2015 HELL HATH NO FURY 215 applicable to any defendant.279 This cannot be the solution. The Constitution is not so feeble and inflexible a document that the advent of new technology can change not only its application, but also its substance. As discussed in Part II.D.3, fighting words are not protected by the First Amendment because “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.”280 To constitute fighting words, the speech at issue must not merely be personally abusive, but indeed must be directed at a person.281 When this occurs, the government can ban threats of violence to protect the individual not just from the harm being threatened, but also from the fear of that harm and “from the disruption that fear engenders.”282 A violent reaction is not a necessary result, nor is it required that the speaker even intend a violent reaction, so long as a violent reaction would be likely to occur.283 Lower courts interpreting this language have proven sympathetic to victims when the scenario involves issues of sexuality and includes some sort of physical action.284 With this skeletal framework, we can turn to application of the true threats doctrine to revenge porn. Virginia v. Black is an excellent guide for the analysis of the concept of true threats, as well as an indicator of the sort of statutory language that courts may uphold when analyzing the proscribed language. The first step in this analysis is to classify revenge porn. The category of true threats developed as an outgrowth of the proscription of fighting words.285 Actions intended to intimidate can be a type of true threat.286 To determine the constitutionality of proscribing the act of cross burning, as an equivalent to intimidating fighting words, the Court looked to the history of the practice. Therefore, so must an analysis of revenge porn. The advent of the Internet, and the even more recent advances in cell phone technology, have both played a role in the growth of revenge porn. Although the history of revenge porn is not as

279. See, e.g., Stokes, supra note 17, at 941 (noting that as of January 2014, only two revenge porn defendants had been prosecuted despite the New Jersey law being on the books since 2004). 280. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309–10 (1940)). 281. See Cantwell, 310 U.S. at 308–09 (“It is not claimed that he intended to insult or affront the hearers . . . . [H]e wished only to interest them in his propaganda.”); see also Cohen v. California, 403 U.S. 15, 20 (1971) (“No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.”). 282. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). 283. See Cantwell, 310 U.S. at 309 (noting a person may be guilty of using fighting words if his statement is likely to provoke violence, even if that was not the speaker’s intent); see also Cohen, 403 U.S. at 20 (noting that there was no evidence that anyone who observed the defendant’s offensive clothing reacted violently). 284. See, e.g., State v. Hubbard, No. C6-00-1836, 2001 WL 568973, at *1–2 (Minn. Ct. App. May 29, 2001) (convicting appellant of disorderly conduct for repeatedly flashing a sexually suggestive sign at complainant while both were driving on the highway); State v. Ovadal, No. 03-0377-CR, 671 N.W.2d 865, at *3 (Wis. Ct. App. Oct. 7, 2003) (upholding defendant’s conviction for yelling “whore” and “harlot” at a woman who was preparing to go to a nude beach). 285. Smolla, supra note 125, at 320–21. 286. Virginia v. Black, 538 U.S. 343, 359–60 (2003).

216 TEMPLE LAW REVIEW [Vol. 88 lengthy as the history of cross burning, there is an overwhelming amount of evidence to demonstrate the significant impact it has made on individual victims and society as a whole. The humiliation associated with exposing the intimate details of a person’s life results in everything from counseling287 to suicide.288 Data gathered on revenge porn reveal that victims often suffer panic attacks, anorexia, and depression.289 But the most distressing side effect of revenge porn is the resulting harassment of victims by complete strangers. When personal information is included within a post of intimate media, victims can receive harassing phone calls and emails at work290 and at home.291 In some circumstance, the harassment escalates beyond phone calls to physical confrontations.292 In at least one case, such a confrontation led to rape with a deadly weapon.293 Many victims are aware not just of the humiliation that revenge porn causes, but the danger to their personal safety as well.294 The fear of sexual assault as a result of these posts is profound, and some victims no longer feel safe leaving their homes.295 In other cases, it is not even the distribution, but the threat of distribution that allows one partner in a relationship to manipulate and dominate the other to the point of domestic abuse.296 Judges, legislators, and academics may cast aside with ease concerns that a victim might break out in shingles or lose her security clearance with the Department of Fish and Wildlife.297 It is to be expected—and perhaps even hoped—that our lawmakers view those laws that threaten the principles of the Constitution with skepticism and even a willingness to accept some unpleasantness. Humiliation and loss of income likely do not satisfy the requirements of the Black test. But the harm caused by revenge porn includes stalking, rape, and suicide. It leaves victims afraid to leave their homes out of fear of being assaulted.298 The severity of this direct harm surely meets the

287. Taylor v. Franko, No. 09–00002 JMS/RLP, 2011 WL 2746714, at *2 (D. Haw. July 12, 2011) (victim required emergency counseling). 288. See Zernike, supra note 42 (describing the New Jersey case where a college student committed suicide shortly after a sexual encounter was posted online). 289. Citron & Franks, supra note 21 at 351 (citing statistics gathered by the authors from a survey of over 1200 victims). 290. E.g., Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1098 (9th Cir. 2009). 291. Taylor, 2011 WL 2746714, at *3 (explaining that over a period of eighteen months, plaintiff received an average of three calls a day related to the posting of her intimate media and phone number). 292. United States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). 293. Black, supra note 39. 294. Millner, supra note 13. 295. Citron & Franks, supra note 22, at 351. 296. Id. 297. See Taylor v. Franko, No. 09–00002 JMS/RLP, 2011 WL 2746714, at *2–3 (D. Haw. July 12, 2011). 298. See, e.g., United States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014) (describing that the victim no longer felt safe in her home).

2015 HELL HATH NO FURY 217 definition of proscribable intimidation.299 States have the power to protect people not just from the harm being threatened—in this case, stalking and possible sexual assault—but also from the fear of that harm and “the disruption that fear engenders.”300 As in Black, once courts establish that revenge porn can at times fall within the sphere of proscribable threats, the next step is to analyze a statute for possible content discrimination.301 A law can withstand this phase of scrutiny when the regulation is based on the “very reason the entire class of speech at issue is proscribable.”302 But if the law proscribes speech related to only one side of a political or social issue, courts will overturn the statute because of its unconstitutional content discrimination. To understand if cross burning was related to a racial or religious social position, the Supreme Court again looked to history.303 Presumably, if cross burning was done in response to only race-based political issues such as integration of schools, voting rights, or miscegenation, it would be protected expressive speech. The Ku Klux Klan’s position on these issues, no matter how disfavored, is one side of a political debate. However, the Court’s historical analysis revealed that cross burning was not limited to a specific racial-, religious-, or gender-related issue, thus its proscription by statute did not on its own constitute content discrimination.304 The history and nature of revenge porn reveals that posting intimate media is also unrelated to a specific political issue. Indeed it is difficult to imagine any social or political message present in any of these harmful postings. Revenge porn even escapes a gendered political message. While not as common, revenge porn can certainly impact men and boys in the same ways it does women and girls.305 Under the framework provided by Black, there would be no inherent “content discrimination” in a statute that banned revenge porn as a type of threat.

C. The Effective Revenge Porn Statute: A Proposal Statutes criminalizing revenge porn are written in a defensive tone, seemingly apologizing at the outset for proscribing nonobscene expressions in violation of the First Amendment.306 Understanding revenge porn within a framework of true threats would allow legislatures to enact broader regulations that more effectively protect the victims of these crimes. The Justices weighed in

299. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”). 300. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). 301. See supra Part II.D.1.b for a detailed analysis of overbreadth and content discrimination. 302. R.A.V., 505 U.S. at 388. 303. Black, 538 U.S. at 365–66. 304. Id. 305. Citron & Franks, supra note 21, at 347–48 (noting revenge porn impacts women more often, but not exclusively); see Zernike, supra note 42 (describing an instance in which one male roommate posted the dalliance of another male roommate online). 306. See supra Part III.A for a review of several current statutes and their flaws.

218 TEMPLE LAW REVIEW [Vol. 88 on the ideal phrasing of a statute that bans particularly virulent threats in Black. Combining that guidance with some of the best aspects of the current revenge porn statutes, I propose a framework for an effective statute that does not violate free speech: 1. It shall be a felony of the third degree for any person or persons, with the intent to intimidate or create a true threat of harm against any person or group of persons, to disclose any photograph, film, videotape, recording, or other reproduction of the image of another identifiable person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. a. As used in this paragraph, “harm” is defined in two ways: i. Violent bodily harm with physical consequences including, but not limited to, rape, murder, suicide, and anorexia; or ii. Extreme and medically verified trauma including, but not limited to, depression and anxiety. b. As used in this paragraph, inclusion of indicators of identity within such a post will be prima facie evidence that the actor directed the post at the subject of the intimate media. c. As used in this paragraph, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, or offer. d. As used in this paragraph, “intimate body part” means any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola that is either uncovered or visible through less than fully opaque clothing. e. As used in this paragraph, “identifiable” refers to personally recognizable features within the intimate media, as well as references to the subject of the media’s name, phone number, address, workplace, email address, social networking profiles, or other related information. This proposed statute borrows the best portions of the other statutes, and leaves out their worse features. California’s “identifiable person” standard is included, as is its definition of “intimate parts.”307 New Jersey’s description of what qualifies as a violation of the statute—disclosure of the image—is included, which expands the scope to self-photography, as is its definition of “disclose.”308 Finally, the statute makes a violation a felony, not a misdemeanor, providing as much incentive as possible for law enforcement to prosecute.309

307. See supra notes 241, 266, and accompanying text for a review of the California statute’s “identifiable person” and “intimate parts” clauses. 308. See supra note 252 and accompanying text for a review of the New Jersey statute’s “disclosure” clause. 309. See supra notes 254–58 and accompanying text for a discussion of the benefits that accompany classifying revenge porn as a felony, as opposed to a misdemeanor.

2015 HELL HATH NO FURY 219

Taking a lesson from Black, the only narrowing of the statute is the qualifier that disclosure of the media must be done “with the intent to intimidate or create a true threat of harm.”310 The intimidation requirement tracks the language of Black, but is expanded to address an otherwise significant opportunity for litigants to distinguish revenge porn cases from this Supreme Court precedent. The long and terrible history of cross burning in the United States gave special force to the intimidating nature of that conduct. As a relatively recent phenomenon, revenge porn does not yet have such a history. The addition of the “or create a true threat of harm” language allows the government to employ the precedential value of Black without the burden of establishing a history of violence comparable to cross burning. “Harm” is defined in two ways in the proposed statute. The first form of harm has clearly observable physical consequences.311 However, such consequences, or even a fear of those consequences, may occur in only limited circumstances. The second form of harm is much more common and expands the reach of the statute.312 Defining “harm” in two separate provisions provides the statute with protection from judicial annulment. This is so because, in the event that a court finds one definition unconstitutionally overbroad, the court can sever that provision without overturning the statute as a whole. Finally, “indicators of identity” constitute evidence that the online post is directed at the subject of the post. This is not evidence of a defendant’s intent to intimidate, but rather only evidence of a defendant’s intent to direct the posting at a specific victim. This addresses situations where a victim is not notified about the posting, but instead finds out through happenstance at some future date. Fighting words jurisprudence generally does not require a speaker’s specific intent to be a violent reaction.313 Black indicates the same rule could be extended to threats, and thus the rule could also apply to revenge porn. That is, a violent reaction does not have to be a distributor’s specific intent as long as a violent reaction could be reasonably likely to occur. Evidence of direction reduces the burden on the prosecution. A prosecutor would need to prove only that (1) revenge porn posts placed a victim in fear of violent bodily harm, and (2) a defendant directed his actions at a victim. From this, a fact finder is free to conclude whether or not a particular defendant’s actions rise to the level of an intimidating threat. Finally, it is worth noting how a court could interpret this statute, with the caveat that a judge’s holding in a prior case is not a clear indicator of future opinions. Opinions from analogous cases written by Justices on the present Supreme Court, however, may indicate their general disposition toward such a

310. See supra note 191 and accompanying text for a description of the holding in Black, as it relates to the “intent to intimidate” language. 311. See supra notes 34–39 and accompanying text for a review of some of the most serious physical harms that can result from revenge porn. 312. See supra notes 24–27 and accompanying text for a review of some of the less physically serious, but most common, harms resulting from revenge porn. 313. See supra notes 159–62 and accompanying text for a discussion regarding the Supreme Court’s characterization of the fighting words doctrine.

220 TEMPLE LAW REVIEW [Vol. 88 statute. Justice Scalia noted in his concurrence in Black: “[A] State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate.”314 Justice Thomas, in his dissent in Black, commented: “In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means.”315 Justices Kennedy and Ginsburg joined Justice Souter’s dissent, which focused not on the intimidating nature of cross burning, but on the statute’s “prima facie” evidence provision: “It is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning . . . .”316 Justice Alito delivered dissents in both Stevens and Snyder, which considered the nature of actual speech at issue—killing puppies and telling a veteran’s family he was going to hell during his funeral—beyond the scope of First Amendment protection.317 Finally, in City of San Diego v. Roe,318 the Court stated, per curiam, that the videos of an employee engaging in sexually explicit acts did not address a public concern.319 In sum, five current Justices have voiced opinions on either the structure of a law that could criminalize revenge porn, or the type of speech that could be regulated without issue.

IV. CONCLUSION When I began my research on this issue, a professor asked me which side of the debate I supported: women or the Constitution. That cannot be the framework our society uses to decide this issue. At the end of the theoretical parade of horribles a judge might concoct, banning revenge porn would mean no one would ever feel safe showing friends the explicit images of an intimate partner. But in the real world, the parade of horribles that victims of this crime must suffer is far worse, and no system that allows it to go unchecked can reasonably tout its inherent justice. Given the reality of the situation, it is unlikely that revenge porn will continue to enjoy protection. But it would be dangerous if, in our fervor to curb this practice, we demand a resolution colored by a personal-dignity-versus-Constitution debate. That forces an unnecessary of one principle to the other, and establishes a dangerous precedent. It is important that revenge porn not just be regulated, but that it be regulated properly—as a true threat. The principles and protections of the Constitution are not so feeble that they may be set against each other and rendered impotent by the camera on a college student’s phone. To say that the Constitution forbids the

314. Virginia v. Black, 538 U.S. 343, 368 (2003) (Scalia, J., concurring in part and dissenting in part). 315. Id. at 388 (Thomas, J., dissenting). 316. Id. at 386–87 (Souter, J., dissenting). 317. See Snyder v. Phelps, 562 U.S. 443, 463–75 (2011) (Alito, J., dissenting); United States v. Stevens, 559 U.S. 460, 496 (2010) (Alito, J., dissenting), superseded by statute, Animal Crush Video Prohibition Act of 2010, Pub. L. 111-294, § 3(a), Dec. 9, 2010, 124 Stat. 3178 (codified as amended at 18 U.S.C. § 48 (2012)). 318. 543 U.S. 77 (2004). 319. Roe, 543 U.S. at 84.

2015 HELL HATH NO FURY 221 punishment of revenge porn is to fundamentally misunderstand the Constitution, revenge porn, or both.

User Name: John Caher Date and Time: Wednesday, September 18, 2019 3:05:00 PM EDT Job Number: 97760137

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1. NOTE: THE NAKED TRUTH: INSUFFICIENT COVERAGE FOR REVENGE PORN VICTIMS AT STATE LAW AND THE PROPOSED FEDERAL LEGISLATION TO ADEQUATELY REDRESS THEM, 59 B.C. L. Rev. 1839 Client/Matter: -None- Search Terms: "revenge porn" Search Type: Natural Language Narrowed by: Content Type Narrowed by Secondary Materials Sources: Law Reviews and Journals

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2019 LexisNexis John Caher NOTE: THE NAKED TRUTH: INSUFFICIENT COVERAGE FOR REVENGE PORN VICTIMS AT STATE LAW AND THE PROPOSED FEDERAL LEGISLATION TO ADEQUATELY REDRESS THEM

May, 2018

Reporter 59 B.C. L. Rev. 1839 *

Length: 10282 words

Author: MEGHAN FAY

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Abstract: The distribution of revenge porn is a cyber-bullying phenomenon that has proliferated on the Internet. The nonconsensual sharing of sexually explicit photographs and videos causes irreparable harm to revenge porn victims. The current state of the law, however, does little to redress the damage. Tort claims are often unsuccessful because many victims do not have the resources necessary to initiate a lawsuit. Furthermore, federal law grants operators of revenge porn websites immunity from state tort claims. In an effort to fill this gap in the law, many states have made changes or additions to their criminal statutes. To date, thirty-eight states have legislation prohibiting the distribution of nonconsensual pornography. Some states, including New Jersey and California, successfully passed anti-revenge porn legislation, while others, such as Arizona and Vermont, faced constitutional challenges. In July 2016, Congresswoman Jackie Speier introduced the Intimate Privacy Protection Act of 2016 ("IPPA"), a proposed federal law criminalizing revenge porn. This Note argues that the IPPA effectively balances the competing interests of revenge porn victims and Internet service providers and thus should be adopted by Congress.

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[*1839] INTRODUCTION

In today's ever-evolving highly digitized world, one constant remains true--technology has changed the way people break up. 1 Drew Barrymore's character in the popular film, He's Just Not That Into You, quipped on her experience with the following:

1 Barbara Kantrowitz, How Technology Has Changed the Way We Break Up, NEWSWEEK (Aug. 2, 2010, 4:00 AM), http://www.newsweek.com/how-technology-has-changed-way-we-break-71657 [https://perma.cc/37EQ-SE2B]. Llana Gershon, an assistant professor of communication and culture at Indiana University, studied the role technology plays in .Id. In the study, the majority of students agreed that breaking up in person is more admirable, but most opted to break up with their significant other over the Internet. Id. For example, one student in Gershon's study discovered her boyfriend broke up with her by changing his relationship status on Facebook from "in a relationship" to "single." Id.

John Caher Page 2 of 29 59 B.C. L. Rev. 1839, *1839

I had this guy leave me a voice mail at work, so I called him at home, and then he e-mailed me to my BlackBerry, and so I texted to his cell . . . . and now you just have to go around checking all these different [*1840] portals just to get rejected by seven different technologies . . . . It's exhausting. 2 Although Barrymore's remarks are satirical, they are not baseless. 3 More relationships now end digitally rather than personally. 4

The aftermath of the modern-day break up can be equally distressing. 5 Consider the following hypothetical: Jane is in a long-term relationship with Joe. 6 Jane allowed Joe to photograph her in the nude so long as the photos were for Joe's viewing pleasure only. 7 A few months later, Jane and Joe break up and, in retaliation, Joe uploads the photographs accompanied by Jane's contact information to a "revenge porn" website. 8 Jane receives countless e-mails, calls, and Facebook friend requests from strangers soliciting sex. 9 Local police officers inform Jane that Joe's behavior is not criminal because the photographs were originally taken with consent, notwithstanding the fact that consent was conditioned on privacy. 10

[*1841] Unfortunately, Jane's story reflects the increasingly common cyber-bullying phenomenon known as "revenge porn." 11 Revenge pornography--also known as nonconsensual pornography--is the act of distributing sexually explicit photographs of individuals without their consent. 12 Many identify revenge porn as intimate photographs previously taken with consent during a relationship and later distributed by a vengeful ex-lover. 13 The term also comprises nude photographs or videos originally obtained without the victim's consent. 14

As an additional means of harassment, many nonconsensual photographs are posted on popular revenge porn websites. 15 These websites specialize in hosting user-uploaded nonconsensual pornography with the implied or explicit purpose of humiliating an ex-lover. 16 The most damaging websites also divulge [*1842] personal information such as the person's full name, home and e-mail address, place of employment, telephone number, and links to their social media profiles. 17 For example, Hunter Moore, the 26-year-old founder of the now defunct

2 Id.

3 The New Online Breakup: What Are the Consequences?, YOUR TANGO (July 24, 2008), http://www.yourtango.com/20085992/the-new-breakup [https://perma.cc/3LJX-BYJ4] (noting the frequency of digital break ups and explaining the devastating effects).

4 Deni Kirkova, You're Breaking Up with Me by TEXT? Don't Worry, You're Not the Only One Being Digitally Dumped--Most Splits Now Happen via SMS, DAILY MAIL (Mar. 5, 2014, 1:52 PM), http://www.dailymail.co.uk/femail/article-2573879/Youre- breaking-TEXT-Dont-worry-youre-not-one-digitally-dumped-splits-happen-SMS.html [https://perma.cc/4P8L-XDLT]. A study of 2,712 American men and women revealed that more than half broke up with someone over the Internet in the last twelve months.Id. They explained that it was "less awkward" to break up digitally than in person. Id.

5 Veronika A. Lukacs, It's Complicated: Romantic Breakups and Their Aftermath on Facebook (2012) (unpublished M.A. thesis, University of Western Ontario), https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1938&context=etd [https://perma.cc/32S9-6CQC]. Post-break up symptoms include depression, trouble concentrating, irritability, and withdrawal.Id. In a study conducted at the Western University of Graduate & Proctoral Studies, Lukacs found that 88.2% of participants spent time analyzing their ex's Facebook profile and that this behavior resulted in a significant amount of distress. Id. A study conducted at Columbia University found that the human brain reacts the same way during a break up as it does to physical pain. Melanie Greenberg, This Is Your Brain on a Breakup, PYSCHOL. TODAY (Mar. 29, 2016), https://www.psychologytoday.com/us/blog/the-mindful-self- express/201603/is-your-brain-breakup [https://perma.cc/8VER-K29L].

6 Danielle K. Citron & Mary A. Franks, Criminalizing Revenge Porn, 49 WAKE FOREST L. REV. 345, 345 (2014). Jane's story is based on an interview Citron conducted with a revenge porn victim. Danielle Keats Citron, 'Revenge Porn' Should Be a Crime in U.S., CNN (Jan. 16, 2014, 3:49 PM), http://www.cnn.com/2013/08/29/opinion/citron-revenge-porn/ [https://perma.cc/BQ8F-94X7].

7 Citron & Franks, supra note 6, at 345.

John Caher Page 3 of 29 59 B.C. L. Rev. 1839, *1842 revenge porn website IsAnyoneUp.com, encouraged users to include full names and other personal information when uploading explicit photographs. 18 As a result, many subjects receive solicitations for sex or even threats of violence from strangers who view the nonconsensual porn. 19

Once these photographs are posted on the Internet, the consequences can be devastating to the victim's personal life. 20 Many isolate themselves from relationships, relocate to a different state, and some even change their name in an effort to distance themselves from the posted images. 21 The unbearable distress can also cause irreparable damage to a victim's psyche. 22 A study revealed that [*1843] 93% of revenge porn victims suffer significant emotional distress. 23 More than half consider suicide and, sadly, some follow through. 24

The professional costs of involuntary porn are equally grim. 25 The sexually explicit images are often distributed to or discovered by employers and coworkers. 26 The distribution of these images swiftly undermines a victim's professional reputation, and some are even terminated as a result. 27 Moreover, job prospects for victims are severely limited by the fact that the photographs readily appear with a simple Google search. 28 Nearly 80% of employers Google prospective employees and reject candidates based on their findings about 70% of the time. 29 Employers frequently cite concerns about an applicant's inappropriate online image as a reason for rejecting someone's candidacy. 30 Unfortunately for victims, recruiters do not contact them to ascertain whether the posting was consensual or not. 31 This can lead to the perverse choice of accepting a wrongful rejection or volunteering private information with no guarantee of a different outcome. 32

[*1844] Although it may be easy to disregard nonconsensual pornography as isolated acts of revenge, studies indicate that an alarming number of people are at risk. 33 A recent survey conducted by McAfee revealed that two- thirds of smartphone owners have intimate information on their phone, but only 40% protect their information with passwords. 34 In addition, the study found that 1 in 10 ex-partners have threatened to expose intimate photos of an ex, and 60% actually carried through with their threats. 35 Despite these disturbing statistics, 94% of Americans still believe their private photos are safe in the hands of their ex-lovers. 36

8 Id. Revenge porn websites are websites dedicated to posting defamatory material of former lovers. Layla Goldnick, Note, Coddling the Internet: How the CDA Exacerbates the Proliferation of Revenge Porn and Prevents a Meaningful Remedy for Its Victims, 21 CARDOZO J.L. & GENDER 583, 585-86 (2015). These websites allow users to get "revenge" by posting intimate photographs of their former partners online accompanied by identifying personal information. Id.

9 See Citron & Franks, supra note 6, at 345.

10 See id. at 345-46 (noting that the state's criminal harassment law viewed one post as an isolated event and did not constitute a harassing course of conduct as required by the statute).

11 Jessy Nations, Revenge Porn and Narrowing the CDA: Litigating a Web-based Tort in Washington, 12 WASH. J.L. TECH. & ARTS 189, 190 (2017); Aubrey Burris, Note, Hell Hath No Fury Like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute, 66 FLA. L. REV. 2325, 2327-28 (2014); Apeksha Vora, Note, Into the Shadows: Examining Judicial Language in Revenge Porn Cases, 18 GEO. J. GENDER & L. 229, 229-30 (2017).

12 Patel v. Hussain, 485 S.W.3d 153, 157 n.1 (Tex. App. 2016); see Citron & Franks, supra note 6, at 346 n.10 (noting that revenge porn is also referred to as "cyber rape" or "involuntary porn"); nations, supra note 11, at 190 (using revenge porn and nonconsensual pornography interchangeably); Burris, supra note 11, at 2327 (stating that revenge porn is nonconsensual, involuntary pornography).

13 Citron & Franks, supra note 6, at 346.

14 Id. For example, dozens of nude photographs were distributed online after the iCloud accounts of one hundred female celebrities and one male celebrity were hacked in 2014. Alan Duke, 5 Things to Know About the Celebrity Nude Photo Hacking Scandal, CNN (Oct. 12, 2014, 8:40 PM), http://www.cnn.com/2014/09/02/showbiz/hacked-nude-photos-five-things/ [https://perma.cc/GCM2-37AZ]. Jennifer Lawrence, an Oscar-winning actress and one of the victims of the above-mentioned

John Caher Page 4 of 29 59 B.C. L. Rev. 1839, *1844

The glaring research begs the question: why is there so little discussion about nonconsensual pornography and even less legal protection for victims? 37 Perhaps the answer is a product of the general apathy towards revenge porn victims. 38 The all too common response is to blame the victim for sending the photograph in the first place. 39 In effect, this response is simply a modern twist on the antiquated notion that a rape victim "asked for it" by wearing promiscuous clothing. 40 Moreover, this view ignores the reality that involuntary porn includes [*1845] pornography originally taken without any consent at all. 41 Another explanation is that many simply do not know such a problem exists because victims are often too embarrassed or afraid to speak out. 42 A third possibility is that the legislature and judiciary are ill equipped to combat the novel issue because tortious behavior committed over the Internet presents complex evidentiary and liability barriers. 43

Whatever the reason, victims of revenge porn are largely unprotected under state and federal law. 44 Many tort claims fail to hold liable those who post revenge porn online because most civil laws were enacted prior to the emergence of the Internet and subsequent rise of . 45 Even if a tort claim proves successful, however, there is still little guarantee that the explicit images will be removed from the Internet, as many third-party providers are granted immunity from civil liability. 46

Given the lack of meaningful civil remedies, recent strides have been made to criminalize revenge porn at the state level. 47 To date, thirty-eight states have laws criminalizing nonconsensual pornography, up from a mere six in 2014. 48 Although state laws have certainly aided in combatting the crime, there are substantial issues in their application. 49 For this reason, a federal criminal statute has [*1846] recently been proposed to criminalize the distribution of nonconsensual pornography. 50

Part I of this Note provides an overview of existing civil remedies for nonconsensual porn victims, and explains the inadequacy of such remedies. 51 It also discusses the successful and unsuccessful state efforts at criminalizing revenge porn. 52 Part II introduces the proposed federal legislation to criminalize involuntary porn and identifies counter-arguments from its opponents. 53 Finally, Part III argues that the Bill prohibiting nonconsensual

hack, identified the sexually explicit images as photographs she sent while in a long-distance relationship with her boyfriend of four years. Sam Kashner,Jennifer Lawrence Calls Photo Hacking a "Sex Crime," VANITY FAIR, Oct. 14, 2014, at 154. Lawrence called the hack a "sex crime," and a "sexual violation." Id. The Cyber Civil Rights Initiative agreed by regarding the celebrity iCloud hack as a form of nonconsensual pornography because the hacker obtained the images without consent. Let's Call the Celebrity Nude Photo Hack What It Is: Nonconsensual Pornography, CYBER C.R. INITIATIVE (Sept. 4, 2014), https://www.cybercivilrights.org/lets-call-nonconsensual-pornography/ [https://perma.cc/4FWT-ATPG]. In another highly publicized nonconsensual pornography case, a stalker secretly filmed Erin Andrews, a sports reporter, disrobing through the peephole in her hotel room. Andrews v. W. End Hotel, 2016 F. Jury Verdicts Rptr. 157 (Mar. 8, 2016) (accessible in Lexis by searching "2016 Federal Jury Verdicts Rptr. LEXIS 157"). The video has been viewed over seventeen million times since it was first posted in 2009. Natalie Finn,Erin Andrews' Case Is a Reminder of How Difficult It Is for Sex Crime Victims to Come Forward, E!NEWS (Mar. 3, 2016, 1:54 PM), http://www.eonline.com/au/news/745810/erin-andrews-case-is-a-reminder-of-how-difficult-it- is-to-come-forward-as-the-victim-of-a-sex-crime-and-she-deserves-more-credit [https://perma.cc/L2LJ-JWWU]. During an interview, Andrews discussed how the video has impacted her career and revealed she hears fans scream, "Hey, I've seen you naked!" while working as a sideline reporter at football games. Abigail Pesta,The Haunting of Erin Andrews, MARIE CLAIRE (July 13, 2011), http://www.marieclaire.com/celebrity/a6316/erin-andrews-interview/ [https://perma.cc/68CP-UAKT].

15 Burris, supra note 11, at 2336, 2355. IsAnyoneUp.com, ShesAHomewrecker.com, and UGot-Posted.com are all examples of revenge porn websites. Id. at 2326-27 nn.3-4.

16 Emily Poole, Comment, Fighting Back Against Non-Consensual Pornography, 49 U.S.F. L. REV. 181, 185-87 (2015). For example, RealExGirlfriends.com advertises to "all [the] dudes out there who know what [I]'m talking about and have filmed themselves fucking. Did you save the footage? Well this is where you can get the ultimate revenge." Id. at 187. Another revenge porn website was described by a user as "a forum for exacting, sweet, anonymous revenge." Goldnick, supra note 8, at 586 n.8.

17 Goldnick, supra note 8, at 585-86. Social media is a technological platform that facilitates online interaction through the use of words, photographs, audio, and video clips. Laura E. Diss, Whether You "Like" It or Not: The Inclusion of Social Media Evidence in Sexual Harassment Cases and How Courts Can Effectively Control It, 54 B.C. L. REV. 1841, 1842 (2013).

John Caher Page 5 of 29 59 B.C. L. Rev. 1839, *1846 pornography represents a successful balance between the need to protect Internet intermediaries safeguarded by Section 230 of the Communications Decency Act ("Section 230") and revenge porn victims. 54 It concludes that the proposed federal legislation is the only effective remedy to redress victims of nonconsensual pornography and therefore should be enacted. 55

I. EXISTING CIVIL AND CRIMINAL REMEDIES FAIL TO PROVIDE ADEQUATE SOLUTIONS FOR VICTIMS OF NONCONSENSUAL PORNOGRAPHY

Revenge porn victims are largely unprotected under existing civil and criminal law. 56 Most torts fail to address the unique harm caused by the recent phenomenon of nonconsensual pornography. 57 Likewise, states have had limited success in their efforts at criminalizing revenge pornography. 58 Section A of this [*1847] Part explores available civil causes of action and their shortcomings. 59 Section B of this Part introduces successful and unsuccessful state criminal legislation prohibiting nonconsensual pornography. 60

A. Civil Claims

Civil claims, and their remedies, exist to make a victim whole again. 61 As such, many revenge porn victims file civil lawsuits to obtain redress for the harm caused by nonconsensual pornography. 62 Subsection 1 of this Section outlines possible causes of action and their limitations. 63 Subsection 2 describes the federal roadblocks to pursuing these state tort claims. 64

1. State Tort Law Is Not an Effective Option for Revenge Porn Victims

In theory, there are a number of tort claims available to revenge porn victims. 65 Victims could bring claims for invasion of privacy, intentional infliction of emotional distress ("IIED"), or defamation. 66 In reality, though, these privacy-based torts are insufficient to effectively redress the harm caused by the dissemination of revenge porn. 67

18 Poole, supra note 16, at 187. At its height, Moore's website received nearly 350,000 hits a day. Id. In response to critics, Moore explained that his primary motive was to monetize the involuntary porn market, and he did, sometimes making up to $ 30,000 a month for operating the site. Alex Morris, Hunter Moore: The Most Hated Man on the Internet, ROLLING STONE, Oct. 11, 2012, at 44, 46-48. Moore said, "If somebody killed themselves over being on the site, do you know how much money I'd make?" James T. Dawkins IV, Comment, A Dish Served Cold: The Case for Criminalizing Revenge Pornography, 45 CUMB. L. REV. 395, 401 (2015). Similar to Moore, Kevin Bollaert, the creator of another defunct revenge porn website called UGotPosted.com, used the personal information to inform subjects of the posted photos and offered image removal for a fee of up to $ 350. Poole, supra note 16, at 187-88.

19 Adrienne N. Kitchen, Note, The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment, 90 CHI.-KENT L. REV. 247, 248 (2015). For instance, seventeen-year-old Norma received text messages from strangers soliciting oral sex after her ex-boyfriend posted nonconsensual photographs of her along with her full name, address, and bra size. Margaret Talbot, Taking Trolls to Court, NEW YORKER, Dec. 5, 2016, at 56.

20 Nations, supra note 11, at 190; Goldnick, supra note 8, at 591. Revenge porn victims experience emotional distress, cyber bullying, and loss of employment, to name a few effects of revenge porn. Vora, supra note 11, at 229.

21 Sarah Bloom, Note, No Vengeance for 'Revenge Porn' Victims: Unraveling Why This Latest Female-Centric, Intimate-Partner Offense Is Still Legal, and Why We Should Criminalize It, 42 FORDHAM URB. L.J. 233, 241 (2014) (commenting that Holly Jacobs, a revenge porn victim turned activist, changed her name after her ex-boyfriend posted nonconsensual images of her, but her efforts proved futile when he re-posted the photographs under her changed legal name); Amanda L. Cecil, note, Taking Back the Internet: Imposing Civil Liability on Interactive Computer Services in an Attempt to Provide an Adequate Remedy to Victims of Nonconsensual Pornography, 71 WASH. & LEE L. REV. 2513, 2523-24 (2014).

22 Citron & Franks, supra note 6, at 347; Kitchen, supra note 19, at 249. Many revenge porn victims suffer psychological harm, experience stalking, and some resort to suicide. Vora, supra note 11, at 229.

John Caher Page 6 of 29 59 B.C. L. Rev. 1839, *1847

Invasion of privacy is insufficient to combat revenge porn because it presupposes privacy. 68 To bring a successful claim for invasion of privacy, a victim [*1848] must prove that a reasonable expectation of privacy exists with regard to the photographs. 69 This requirement effectively bars the majority of victims who originally consented to share the photographs with their ex-partners in the first place. 70

IIED is also difficult to prove because it requires a manifestation of harm. 71 Under this cause of action, individuals must prove that the defendant engaged in (1) extreme and outrageous behavior as to go beyond all bounds of human decency (2) with intent to (3) cause severe emotional harm, and (4) such harm transpired. 72 The conjunctive elements coupled with the requirement of demonstrating harm make proving a claim for IIED incredibly difficult for victims of revenge porn. 73

Defamation is not viable because it is impossible to claim the published images falsely depict the victim. 74 Defamation is the unauthorized publication of defamatory statements. 75 A successful defamation claim requires a showing that the published material is false. 76 In contrast, the finding of substantial truth provides a complete defense to a defamation claim. 77 Thus, the substantial truth [*1849] doctrine precludes liability because it is undeniable that the victim is depicted in the images. 78

For example, in Patel v. Hussain, the Court of Appeals of Texas for the Fourteenth District found the defendant was entitled to a Judgment Notwithstanding the Verdict ("JNOV") in a claim for defamation where the jury found substantial truth. 79 In Patel, Patel sent nude photographs of Hussain, his former girlfriend, to Hussain's family and co-workers, which were originally sent by Hussain to Patel consensually over the course of their seven-year relationship. 80 Patel also recorded Hussain, without her knowledge, while she undressed and masturbated during video chat conversations with him. 81 Patel frequently text-messaged Hussain threatening to send the video to a number of e-mail addresses, including her grandfather's. 82 When Hussain responded by saying that the video was taken without her consent, Patel responded that he intended to teach Hussain a lesson for being unfaithful during their relationship. 83 Eventually, Patel followed through with his threats by uploading the thirty minute video

23 CYBER CIVIL RIGHTS INITIATIVE, CCRI'S 2013 NONCONSENSUAL PORNOGRAPHY (NCP) RESEARCH RESULTS 1 (2013) [hereinafter CYBER RIGHTS INITIATIVE].

24 Id. at 2; Bloom, supra note 21, at 242 (stating that Audrie Potts, a high school sophomore, hung herself in the school bathroom after her classmates photographed her naked when she passed out from intoxication at a party); Goldnick, supra note 8, at 591 (noting that revenge porn victim Jessica Logan committed suicide after her ex-boyfriend forwarded her intimate photos to other high school students).

25 See Citron & Franks, supra note 6, at 352 (noting that employers have fired their employees after discovering nude images of them online). Many revenge porn victims file lawsuits alleging loss of employment and educational opportunities. Burris, supra note 11, at 2337.

26 Bloom, supra note 21, at 240-41.

27 Id. at 241 (stating that a revenge porn victim lost sales after her harasser posted photos of her and described her as lustful and promiscuous). One school fired a teacher after discovering sexually explicit images online. Citron & Franks, supra note 6, at 352. A government employee was terminated after her co-worker distributed nude photographs of her online. Id.

28 See Citron & Franks, supra note 6, at 352 (noting that many employers Google search candidates). A Google search of the subject's name can generate sexually explicit images because many perpetrators include the subject's personal information when uploading the photographs or videos. Cecil, supra note 21, at 2522-23. Thirty-nine percent of victims found the existence of their nonconsensual pornography negatively impacted their professional advancement and ability to network. CYBER RIGHTS INITIATIVE, supra note 23.

29 Citron & Franks, supra note 6, at 352; Kitchen, supra note 19, at 250; Susan P. Joyce, What 80% of Employers Do Before Inviting You for an Interview, HUFFINGTON POST (May 1, 2014), http://www.huffingtonpost.com/susan-p-joyce/job-search- tips_b_4834361.html [https://perma.cc/ESZ8-B7SS] (finding that eighty percent of employers Google candidates and review their social network profiles before deciding whether to extend an interview offer).

John Caher Page 7 of 29 59 B.C. L. Rev. 1839, *1849 to YouTube and sending the link to Hussain's friends, family, and co-workers. 84 He also posted the video on various porn websites, where it received thousands of views. 85

[*1850] The Patel court ruled that the trial court erred in denying Patel's motion for JNOV after the jury returned a verdict for defamation despite finding the published material to be substantially true. 86 Because substantial truth is an affirmative defense to defamation, the trial judge was required to disregard the jury's award of $ 50,000 in damages for the defamation claim as a matter of law. 87

In addition to the difficulties of proving a prima facie case, revenge porn victims encounter a number of other constraints limiting their ability to successfully pursue a tort claim. 88 First, many revenge porn victims do not have the time or financial resources necessary to initiate a civil lawsuit. 89 Second, those victims with adequate resources have difficulty identifying their perpetrators because websites shield their anonymous users. 90 Third, unwanted publicity ensues upon initiating a lawsuit. 91 Revenge porn victims are required to file lawsuits using their given name, not a pseudonym, which ultimately brings more attention to the very images they hope to hide. 92 Fourth, and most importantly, civil lawsuits only provide the possibility of a monetary award. 93 They do not ensure the underlying content will be removed, which is often the only effective remedy in restoring a victim's damaged reputation. 94

2. Federal Law Creates Further Roadblocks to Meaningful Civil Recovery

In addition to the confines of privacy torts, federal law further narrows a victim's recovery options. 95 The Digital Millennium Copyright Act of 1998 ("DMCA") provides the ability for copyright holders to remove the incriminating [*1851] content from the Internet. 96 This remedy, however, is limited by the Communications and Decency Act ("CDA"), which grants Internet service providers ("ISPs") federal immunity from state claims. 97

The DMCA provides a path to obtaining removal of revenge pornography from the Internet. 98 The DMCA allows the legal holder of a copyright to file a "takedown notice" against the website posting infringing material. 99 The

30 Citron & Franks, supra note 6, at 352. These concerns include questions about a candidate's suitability for the position based on questionable photographs or videos. Id.

31 Id.

32 See CYBER RIGHTS INITIATIVE, supra note 23 (finding forty-two percent of revenge porn victims had to explain the situation to supervisors or co-workers); Citron & Franks, supra note 6, at 352 (noting that employers do not want to hire candidates with a distasteful online presence so as to avoid a poor reflection on the employer).

33 Justin Pitcher, The State of the States: The Continuing Struggle to Criminalize Revenge Porn, 2015 BYU L. REV. 1453, 1438 ; Lovers Beware: Scorned Exes May Share Intimate Data and Images Online, MCAFEE (Feb. 4, 2013), http://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx [https://perma.cc/J8TU-L6UM].

34 Lovers Beware, supra note 33. McAfee, a computer security software company, conducted a survey entitled "2013 Love, Relationships, and Technology" to identify the risks of sharing personal online information with friends and family. Id. The study found that many users risk having their private information shared online after a break up. Id.

35 Id.

36 Id. The study found that many people continue to share personal information with others on the internet despite the risk that this intimate information could be leaked. Id.

37 See Citron & Franks, supra note 6, at 347 (noting the lack of legal protection for revenge porn victims).

38 See id. (arguing that society is delayed in understanding the complexity of involuntary porn and its harmful effect on victims); Vora, supra note 11, at 231 (commenting that several theorists argue that the internet proliferates gender discrimination and harassment).

John Caher Page 8 of 29 59 B.C. L. Rev. 1839, *1851

ISP will not be liable for copyright infringement of nonconsensual pornography so long as it complies with Section 512 of the Online Copyright Infringement Liability Limitation Act's "notice and takedown" procedure. 100

This remedy, however, is limited in scope. 101 First, copyright redress is only available to victims who qualify as legal holders of the material. 102 A revenge porn victim is the legal holder only if she took the photograph of herself. 103 Second, a takedown notice does not guarantee the photograph will be removed in a timely manner or even at all. 104 Websites may refuse to remove the material [*1852] without proper proof of ownership. 105 This requires victims to actually register the nude photographs with the U.S. government. 106 Third, a successful takedown only ensures the photograph will be removed from the named website. 107 It does not prevent other revenge porn websites from re-posting the infringing material, effectively defeating the purpose of a takedown request. 108

Section 230 of the CDA further limits a victim's ability to adequately redress harm caused by the dissemination of nonconsensual porn. 109 Generally speaking, Section 230 shields ISPs from civil liability for failing to remove non- consensual pornography published on its website by third-party users. 110 ISPs also have no obligation to assist victims in identifying the user who posted the incriminating material. 111 Section 230, in essence, bars victims from suing revenge [*1853] porn websites and provides no recourse for the removal of the explicit content. 112

Congress passed Section 230 in order to effectuate its legislative purpose of promoting Internet growth. 113 Congress affords ISPs tort immunity in order to promote the free flow of information on the Internet. 114 Otherwise, service providers would have to screen millions of posts, and this burden would severely restrict the free flow and exchange of information on the Internet. 115 For example, in 2013, the Texas Court of Appeals for the Ninth District in GoDaddy.com v. Toups held that the plaintiffs, a class action of revenge porn victims, failed to state a valid claim against GoDaddy.com ("GoDaddy"). 116 The court characterized [*1854] GoDaddy as an interactive computer service because the website merely published, and did not create, the content uploaded by a third party. 117 As such, the website was entitled to immunity under Section 230 as a matter of law. 118

39 Rachel B. Patton, Note, Taking the Sting Out of Revenge Porn: Using Criminal Statutes to Safeguard Sexual Autonomy in the Digital Age, 16 GEO. J. GENDER & L. 407, 410 (2015) (commenting that many people lack sympathy for victims because, but for the victim taking the nude photograph, the revenge porn would not exist in the first place). Eric Goldman, a professor at Santa Clara University School of Law, summarized the common viewpoint by stating that "[s]till, for individuals who would prefer not to be a revenge porn victim or otherwise have intimate depictions of themselves publicly disclosed, the advice will be simple: don't take nude photos or videos." Bloom, supra note 21, at 250-51.

40 See Bloom, supra note 21, at 251-52. John Oliver, a television host, opined that victim blaming is "hard-wired into mainstream culture." Ryan Reed, John Oliver Takes on Revenge Porn on 'Last Week Tonight,' ROLLING STONE (June 22, 2015), http://www.rollingstone.com/tv/news/john-oliver-internet-is-haven-for-harassment-against-women-20150622 [https://perma.cc/G9TA-RWRG]. Oliver argues that telling people not to take nude photos if they do not want them to appear on the Internet is the equivalent to telling people not to live in a house if they do not want to be burglarized.Id.

41 See supra note 14 and accompanying text. Involuntary pornography includes intimate images that were not originally obtained with consent, as was the case with Erin Andrews. See id.

42 See Citron & Franks, supra note 6, at 347 (commenting that society does not understand the grave risks of revenge porn because many victims are afraid to come forward with their stories in fear of experiencing further harm). Often, speaking out against the harasser can result in further harm to the victim, such as physical stalking or continued cyber harassment. Vora, supra note 11, at 229-30.

43 See Citron & Franks, supra note 6, at 347 (noting that because revenge porn looms on the internet and social media, law enforcement is unable to grasp the mechanics of the issue); Bloom, supra note 21, at 245 (stating that revenge porn is a relatively new cyber bullying phenomenon).

44 Cecil, supra note 21, at 2517 (noting the inadequacy of current legal claims to redress the harms caused by nonconsensual pornography).

John Caher Page 9 of 29 59 B.C. L. Rev. 1839, *1854

B. Criminal Law

Due to the inadequacy of tort law, criminal law remains the only viable legal option to end revenge porn. 119 Well- drafted criminal legislation provides the effective enforcement and deterrence necessary to combat nonconsensual pornography. 120 Subsection 1 of this Section introduces successful state legislation. 121 Subsection 2 describes unsuccessful state efforts to criminalize revenge porn. 122

1. Successful State Legislation

New Jersey, the pioneer state to criminalize nonconsensual pornography in 2004, has one of the strictest statutes to date. 123 The legislation makes it a crime to knowingly observe, record, or disclose pornographic images or recordings without a person's consent. 124 For the purposes of the statute, "disclose" is de [*1855] fined as the act of publishing, distributing, sharing, or making nonconsensual images available on the Internet by any other means. 125 A defendant convicted of the crime faces up to a $ 30,000 fine and a prison sentence of three to five years. 126 The legislation is regarded as the toughest revenge porn statute because of its breadth in criminalizing a wide range of behavior. 127

California also passed a statute criminalizing revenge porn in 2013. 128 The legislation makes it a crime to intentionally distribute nonconsensual pornography with the intent to cause serious emotional distress, and the victim actually suffers serious emotional distress. 129 A violation of the statute constitutes a mis-demeanor with up to six months imprisonment and a $ 1,000 fine. 130 In 2014, Noe Iniguez was the first person to be convicted under California's nonconsensual pornography statute for distributing a private image. 131 Iniguez posted a [*1856] topless image of his ex-girlfriend along with the comment "slut" on her employer's Facebook page. 132 The image was taken while the two were in a relationship, and the ex-girlfriend testified that Iniguez promised to erase all images in the event they broke up. 133

45 See Nations, supra note 11, at 190 (referring to revenge porn as a "uniquely modern phenomena"); Kitchen, supra note 19, at 253-54 (commenting that tort law fails to address the novel harms of revenge porn); Kai Jia, From Immunity to Regulation: Turning Point of Internet Intermediary Regulatory Agenda, JOLTT (Oct. 8, 2016), http://sites.utexas.edu/joltt/2016/10/08/61/ [https://perma.cc/J8H4-XFNY] (stating that cyber-tort law is still developing).

46 Burris, supra note 11, at 2341-42. Additionally, a successful civil lawsuit against an ex-lover may prove futile as many of these defendants have insufficient financial resources to satisfy a judgment. Id.

47 See Citron & Franks, supra note 6, at 371 (noting that as of May 2014, only New Jersey, Alaska, Texas, California, Idaho, and Utah had laws criminalizing revenge porn). As of 2018, Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, north Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, Washington, and Wisconsin have criminalized nonconsensual pornography. 38 States + DC Have Revenge Porn Laws, CYBER RTS. INITIATIVE (2017) [hereinafter 38 States], https://www.cybercivilrights.org/revenge-porn-laws/ [https://perma.cc/W4RX-PS79].

48 38 States, supra note 47.

49 See Taylor Linkous, It's Time for Revenge Porn to Get a Taste of Its Own Medicine: An Argument for the Federal Criminalization of Revenge Porn, 20 RICH. J.L. & TECH. 14, 36-37 (2014), http://jolt.richmond.edu/v20i4/article14.pdf [https://perma.cc/62UY-VFJN] (explaining that the interstate dissemination of involuntary porn via the Internet posits jurisdictional issues because state criminal statutes impose varying degrees of proof and punishment).

50 Id. A federal criminal law would have a far-reaching impact and could apply to both those who upload and host revenge porn on the internet. Citron & Franks, supra note 6, at 365.

51 See infra notes 65-118 and accompanying text.

John Caher Page 10 of 29 59 B.C. L. Rev. 1839, *1856

Despite successful efforts to prosecute perpetrators, the California anti-revenge porn law was swiftly criticized. 134 Critics argue that requiring prosecutors to prove the defendant intended to cause serious emotional harm is too high of a burden. 135 Additionally, critics assert that even if prosecutors are successful in proving the requisite mens rea, the punishment is too lenient compared to other revenge porn statutes. 136

2. Failed State Efforts

In 2016, in Vermont v. VanBuren, a Vermont Superior Court deemed the state's anti-revenge porn statute unconstitutional just one year after its enactment. 137 The statute imposes up to a five-year prison sentence for knowingly [*1857] disclosing sexually explicit photographs of another without their consent. 138 The legislation was passed in an attempt to create liability for ex-lovers motivated by vengeance and third parties motivated by profit. 139

Rebekah VanBuren was the first person to be charged under Vermont's anti-revenge porn statute. 140 In October 2015, an unidentified woman privately messaged nude photographs of herself to the Facebook account of Anthony Coon, who was her ex-boyfriend. 141 At the time he received the pictures, Coon was in a relationship with VanBuren. 142 VanBuren accessed Coon's messages, posted the photographs to his public Facebook page, and "tagged" the woman depicted in them. 143 She also called the woman a "moral-less pig" and threatened to reveal [*1858] the images to the woman's employer. 144 VanBuren admitted she posted the nude photographs in an effort to harm the woman's reputation and teach her a lesson. 145

In 2016, the VanBuren court held the Vermont statute to be an unconstitutional restriction on free speech protected by the First Amendment of the U.S. Constitution. 146 The court recognized that freedom of expression is not an absolute right, and states are permitted to prohibit certain categories of expression that violate public policy. 147 For example, governments may regulate "," which are the depiction of sexual conduct that appeal to morbid sexual fantasies. 148 The court rejected the State's argument that revenge porn falls into this exception

52 See infra notes 119-156 and accompanying text.

53 See infra notes 157-197 and accompanying text.

54 See infra notes 198-246 and accompanying text.

55 See infra notes 242-246 and accompanying text.

56 See supra notes 47-50 and accompanying text.

57 See Citron & Franks, supra note 6, at 347 (noting the lack of laws prohibiting nonconsensual pornography and suggesting that it is due to the fact that society does not fully understand the harm caused by the dissemination of nonconsensual pornography); Amanda Burris, supra note 11, at 2340 (hypothesizing that existing tort remedies fail to redress revenge porn victims because their position does not "fit well into any existing civil remedy"); Amanda Levendowski, Note, Using Copyright to Combat Revenge Porn, 3 N.Y.U. J. INTELL. PROP. & ENT. L. 422, 431-32 (2014) (stating that tort remedies for invasion of privacy are ill equipped to remedy the harm caused by nonconsensual pornography).

58 Citron & Franks, supra note 6, at 357-58 (commenting that tort law is not always successful to combat revenge pornography because of the uniqueness of online harassment). Some object to state criminal statutes because of First Amendment concerns. Danielle Citron, Debunking the First Amendment Myths Surrounding Revenge Porn Laws, FORBES (Apr. 18, 2014, 11:19 AM), https://www.forbes.com/sites/daniellecitron/2014/04/18/debunking-the-first-amendment-myths-surrounding-revenge-porn- laws/#71fed81e25c8. These opponents of state criminal statutes argue that laws criminalizing revenge porn are unconstitutional, because revenge porn is protected speech and therefore has First Amendment protection.Id.

59 See infra notes 61-118 and accompanying text.

60 See infra notes 119-156 and accompanying text.

John Caher Page 11 of 29 59 B.C. L. Rev. 1839, *1858 because such photographs do not necessarily depict sexual acts and can be sent without intent to elicit shameful desires. 149 To rule otherwise, the court reasoned, would unconstitutionally enlarge the narrow categorical exception for regulation of obscenities. 150

At least one state has invalidated nonconsensual porn statutes on the doctrine of vagueness alone. 151 In 2014, Arizona enacted a criminal law prohibiting [*1859] the disclosure of sexually explicit images if the person "knew or should have known" that the subject did not consent to disclosure. 152 In 2015, after objections claimed the statute was overly broad, a United States District Court Judge for the District of Arizona issued a decree, in Antigone Books, L.L.C. v. Brnovich, prohibiting prosecutors from enforcing the law. 153 Similarly, a Rhode Island governor exercised her veto power to reject a bill aimed at prohibiting nonconsensual pornography. 154 The governor warned that the breadth of the proposed legislation [*1860] could chill free speech. 155 The governor recommended a more carefully drafted statute with internal limitations, such as requiring a minimum mens rea of intent to harass. 156

II. THE PROPOSED FEDERAL LEGISLATION CRIMINALIZING REVENGE PORN

A federal criminal law prohibiting nonconsensual pornography is necessary to resolve the challenges state legislators have faced in this area. 157 Anti-revenge porn activists emphasize the need for a well-drafted, uniform piece of legislation in order to ensure effective enforcement. 158 Recognizing the growing need to protect revenge porn victims, Congresswoman Jackie Speier introduced the IPPA, a federal bill criminalizing the dissemination of revenge pornography. 159 This Part explains the IPPA and its response from supporters and critics. 160 Section A of this Part introduces and interprets the text of the IPPA. 161 Section B of [*1861] this Part addresses the influence major technology companies played in shaping the bill. 162

A. Congresswoman Speier's Proposal to Put an End to the Dissemination of Nonconsensual Pornography

61 Adams v. Aidoo, No. 07C-11-177 (MJB), 2012 Del. Super. LEXIS 135, at *13 (Super. Ct. Mar. 29, 2012); see Sarah E. Driscoll, Comment, Revenge Porn: Chivalry Prevails as Legislation Protects Damsels in Distress over Freedom of Speech, 21 ROGER WILLIAMS U. L. REV. 75, 111 (2016) (stating that tort law compensates the victim for pain and suffering instead of imposing criminal sanctions).

62 Cecil, supra note 21, at 2529. Victims pursue civil remedies from claims like Intentional Infliction of Emotional Distress ("IIED") and other privacy torts in an attempt to redress the harm caused by nonconsensual pornography. Id. at 2529-30.

63 See infra notes 65-94 and accompanying text.

64 See infra notes 95-118 and accompanying text.

65 See Cecil, supra note 21, at 2529-31 (commenting that civil law provides various causes of action for revenge porn victims, but noting the inadequacies of tort law to redress the harm); Dawkins, supra note 18, at 423 (stating that tort law is "hypothetically" available to victims).

66 Dawkins, supra note 18, at 424. Victims pursue privacy torts like IIED and Public Disclosure of Private Facts. Id. In addition, defamation is available when the sexually explicit photograph is accompanied by false and defamatory statements. Driscoll, supra note 61, at 112.

67 Burris, supra note 11, at 2340. Many existing tort remedies do not provide adequate redress for revenge porn victims, because revenge porn is a recent phenomenon. Id. Even if a civil remedy exists, many victims do not have the requisite resources to pursue a civil case. Id.

68 Cecil, supra note 21, at 2530 (explaining the difficulty in proving that images, which were originally shared consensually, are within a protected zone of privacy). For example, a privacy tort like the tort of false light requires the image to falsely portray a victim in a manner that is highly offensive to a reasonable person. Alexis Fung Chen Pen, Note, Striking Back: A Practical Solution to Criminalizing Revenge Porn, 37 T. JEFFERSON L. REV. 405, 426 (2015). This proves difficult for revenge porn victims because the images usually do not portray them falsely, because it is undeniable they are the subject in the images. See

John Caher Page 12 of 29 59 B.C. L. Rev. 1839, *1861

On July 14, 2016, Congresswoman Jackie Speier introduced the IPPA to combat the distribution of nonconsensual pornography. 163 This proposed legislation, Speier has stated, is a direct response to the disturbing reality that most revenge porn victims cannot afford to bring civil lawsuits and are largely unprotected under criminal law. 164 The bill aims to alleviate this harsh legal landscape by providing meaningful remedies to otherwise helpless revenge porn victims. 165 The proposed bill, just four pages long, targets whoever "knowingly" distributes sexually intimate images with "reckless disregard" for the subject's lack of consent. 166 Specifically, the proposed bill reads, in part: Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post- pubescent female nipple of the person, with reckless disregard for the person's lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both. 167

[*1862] The legislation, however, is inapplicable in a number of circumstances. 168 First, the IPPA does not apply to law enforcement or legal proceedings. 169 Second, individuals who voluntarily or commercially engage in the visual depiction of their genitalia are not protected. 170 Third, the bill does not apply in the event that there is a bona fide public interest in the disclosure of such images. 171 Fourth, the bill provides immunity for otherwise innocent ISPs, who are protected under Section 230. 172

Most importantly, the safe harbor provision upholds Section 230's immunity for third-party content posted to Internet intermediaries' websites. 173 This provision protects innocent websites like Facebook and Twitter who host, and do not create, their own content. 174 The IPPA, however, targets salacious revenge porn websites that specifically solicit nonconsensual pornography. 175

B. Gaining Silicon Valley's Support by Narrowing the Bill's Applicability to ISPs

id. at 427 (commenting that the disclosure of nonconsensual pornography usually does not portray victims in a false light, but merely an "unfavorable or undesirable light").

69 Cecil, supra note 21, at 2530.

70 Id.

71 Id. at 2529-30. To pursue a claim for IIED, most laws require the victim to demonstrate suffering from a disabling emotional response. Id. at 2530. In 2002, the U.S. Court of Appeals for the Fifth Circuit held that anger and embarrassment from sexual and physical harassment did not constitute a disabling emotional response. Id. (citing Smith v. Amedisys Inc., 298 F.3d 434, 450 (5th Cir. 2002)). Accordingly, many revenge porn victims fail to satisfy this element of the tort. Id.

72 Dawkins, supra note 18, at 424. See generally Agis v. Howard Johnson Co., 355 N.E.2d 315, 318-19 (1976) (articulating the elements of an IIED claim in ).

73 See Cecil, supra note 21, at 2529-30 (stating that, because IIED requires proof of a "severely disabling emotional response" or "unendurable" emotional distress, mere anger, humiliation or embarrassment will not suffice); Driscoll, supra note 61, at 113- 14 (noting the difficulty of proving emotional distress because it requires the manifestation of actual harm and cannot simply be embarrassment).

74 See Alix Iris Cohen, Note, Nonconsensual Pornography and the First Amendment: A Case for a New Unprotected Category of Speech, 70 U. MIAMI L. REV. 300, 322 (2016) (stating that defamation requires proof of falsity). Victims of nonconsensual pornography do not dispute the fact that the images accurately depict them. Id.

75 Id. The cause of action comprises two different torts: libel, in the case where the defamatory statement is written, or slander, where the defamatory statement is made orally. Id.

76 Driscoll, supra note 61, at 113. See generally N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-81 (1964) (holding that a defamation claim requires proof the statement is false).

John Caher Page 13 of 29 59 B.C. L. Rev. 1839, *1862

As noted, the proposed IPPA legislation includes a safe harbor provision for Section 230 ISPs. 176 The bill grants operators of interactive platforms, like Facebook and Twitter, immunity from criminal liability if nonconsensual pornography is disseminated on their websites. 177 The immunity, however, does not apply [*1863] if the provider "intentionally promotes or solicits" content that would otherwise be in violation of the IPPA. 178

Large technology firms in Silicon Valley are strong supporters of the IPPA's prohibition against nonconsensual pornography. 179 Representatives from Facebook and Twitter issued public statements commending the IPPA and its work to fight cyber bullying. 180 This support, however, was not steadfast at the outset. 181 The first draft, circulated for discussion in 2015, imposed a hefty burden on website operators. 182 The discussion draft compelled ISPs to resolve nonconsensual pornography takedown requests within forty-eight hours of receiving the notice. 183 Website and search engine operators were required to remove the incriminating [*1864] content or to inform the user of their apparent consent to disseminate the material. 184

Silicon Valley firms generally objected to these cumbersome provisions as being starkly in conflict with Section 230 of the CDA. 185 Section 230 grants ISPs immunity for user-uploaded nonconsensual pornography. 186 The original version of the IPPA did not only eliminate this immunity, but also imposed a burdensome and unprecedented procedure on ISPs. 187 In theory, the 2015 bill required interactive platforms, like Facebook and Google, to dedicate tremendous resources to developing and executing an entirely new scheme for proactively resolving takedown requests or face criminal liability. 188

The 2016 draft notably excludes these provisions, thereby alleviating the burden on ISPs to monitor nonconsensual pornography on their websites. 189 In fact, the current bill affirms Section 230's safe harbor so long as the computer service does not intentionally promote nonconsensual pornography on its site. 190 A number of sources hypothesize that the lobbying efforts of major technology [*1865] companies were responsible for the amendment. 191 Upholding the safe harbor, it seems, was necessary to gain the approval of major technology companies in Silicon Valley. 192

77 Patel, 485 S.W.3d at 173. A statement need not be literally true, but only substantially true in order to preclude liability. Klentzman v. Brady, 312 S.W.3d 886, 899 (Tex. App. 2009). Therefore, victims of nonconsensual pornography have issues pursuing a defamation claim, despite the fact that the text accompanying the image may not be true. See Taryn Pahigian, Ending the Revenge Porn Epidemic: The Anti-Revenge Porn Act, 30 J.C.R. & ECON. DEV. 105, 122-23 (2017) (explaining the truth defense in defamation claims). This is because the image accurately depicts the victim, satisfying the truth defense. Id. Despite this, in a non-binding opinion, a federal district court in Hawaii ruled that the nonconsensual distribution of pornographic images could constitute a cause of action for defamation. Taylor v. Franko, No. 09-00002 JMS/RLP, 2011 WL 2118270, at *9 (D. Haw. May 2, 2011); Driscoll, supra note 61, at 113.

78 Bloom, supra note 21, at 256 n.189.

79 Patel, 485 S.W.3d at 174.

80 Id. at 158. Hussain asked Patel to erase the photographs after receiving them, but Patel did not. Id.

81 Id.

82 Id. at 158, 162-64. Hussain testified that she received twenty to thirty text messages and phone calls a day from Patel threatening to expose her. Id. at 165. For example, Patel messaged, "Tomorrow your mom is going to find out what you did. And so is your nana[,] nani[,] and uncle." Id. at 164.

83 Id. at 161, 163-64. After learning of the video, Hussain text messaged Patel, "[y]ou recorded me [Patel] . . . without my consent, do you know how bad that is? And [o]n top of that you threaten to expose me with it?" Id. at 161-62. Patel responded, "[t]hose videos were taken when we were together, when you said you were faithful, and you were not." Id.

84 Id. at 160. Patel titled the video "Pakistani Nadia Houston." Id. at 165. He told Hussain that the Internet is "huge" and she would never be able to find where the video is posted. Id. 168.

John Caher Page 14 of 29 59 B.C. L. Rev. 1839, *1865

Despite their legal immunity, many major websites have voluntarily adopted policies to combat revenge porn. 193 Search engines Google, Bing, and Yahoo have also agreed to "de-index" revenge porn, so the content does not appear when searching the subject's name. 194 Social media platforms, including Facebook, Twitter, and , updated their privacy policies to prohibit nonconsensual pornography as early as 2015. 195 Notably, in October 2015, PornHub, a popular porn website, announced its new procedure to honor subject's requests to take down nonconsensual pornography. 196 These private efforts evidence that Internet intermediaries are willing to combat revenge porn. 197

III. THE SAFE HARBOR PROVISION EFFECTIVELY BALANCES THE COMPETING INTERESTS OF SECTION 230 OPERATORS AND REVENGE PORN VICTIMS

The IPPA aims to regulate certain content on the Internet by prohibiting the dissemination of nonconsensual pornography. 198 Previous efforts to draft a federal law prohibiting revenge porn, however, have been resisted by advocates of [*1866] Section 230 of the CDA. 199 This Part argues that the IPPA's safe harbor provision is necessary to balance the concerns of Section 230 hosts and revenge porn victims alike. 200 Section A of this Part contends the inclusion of the safe harbor provision is necessary to avoid displacing Section 230. 201 Section B of this Part argues the "intentional" mens rea requirement provides revenge porn victims with adequate redress against the egregious behavior of third-party hosts. 202

A. The Safe Harbor Provision Is Necessary to Harmonize the IPPA and Section 230 of the CDA

The safe harbor provision of the IPPA is necessary to uphold Section 230 of the CDA's legislative purpose to promote the free exchange of information on the Internet. 203 Unlike earlier versions of the bill, the IPPA does not penalize Internet intermediaries for failing to remove nonconsensual pornography. 204 The inclusion of this provision is essential to harmonizing the legislative purpose of the CDA and silencing earlier criticisms purporting the bill to over-regulate the Internet. 205

85 Id. at 165. After uploading the video, Patel messaged Hussain: Your vid is up online. Congrats to you and your family . . . . [O]ver 2000 ppl have viewed what you do in your bed. You seem to be very popular amongst the guys, they can't stop watching you! . . . . Not only did 5000 men and women watch you, 300 downloaded your videos! All I asked for was respect and you couldn't do that . . . . The biggest question is what kind of explanation are you going to have for nana and nani . . . . Blame yourself and your attitude for everything that is happening.

Id. Patel also uploaded the video on Apple store computers at a local mall. Id. at 168.

86 Id. at 174. The appellate court found that the trial court erred in denying Patel's Judgment notwithstanding the Verdict because the finding of substantial truth precluded liability for defamation. Id.

87 Id.

88 Peter W. Cooper, Comment, The Right to Be Virtually Clothed, 91 WASH. L. REV. 817, 824 (2016). There are a number of possible privacy claims available to revenge porn victims, but they remain inadequate to redress the harm caused by the dissemination of revenge porn. Id. Many victims do not have the financial resources or time to pursue a civil claim. Citron & Franks, supra note 6, at 358. Moreover, victims may be wary of commencing civil litigation, as it guarantees even more unwanted publicity. Id.

89 Kitchen, supra note 19, at 251-52 (commenting on the high emotional and financial cost that victims must weigh against the probability of winning a civil lawsuit against their perpetrators). Civil litigation is often not a possibility for revenge porn victims "[h]aving lost their jobs due to the online posts, they cannot pay their rent, let alone cover lawyer's fees." Citron & Franks, supra note 6, at 358.

90 Cecil, supra note 21, at 2531; Kitchen, supra note 19, at 251-52 (noting that revenge porn websites are under no obligation to identify their anonymous users).

John Caher Page 15 of 29 59 B.C. L. Rev. 1839, *1866

At first glance, the IPPA's legislative purpose appears to conflict with the goals of Section 230. 206 For one, the IPPA attempts to regulate Internet content by prohibiting the dissemination of nonconsensual pornography. 207 On the other hand, Section 230 aims to promote the free flow of information on the Internet by shielding many technology companies from liability stemming from user-uploaded [*1867] content. 208 The IPPA's safe harbor provision, however, explicitly affirms the efficacy of Section 230's immunity. 209 The proposed legislation grants immunity to ISPs for user-uploaded nonconsensual pornography. 210 Specifically, the bill states liability does not extend to Section 230 ISPs for content uploaded by another information content provider. 211 This provision is necessary to avoid a chilling effect on free speech and, consequently, protect the important function of Section 230. 212

In comparison, the 2015 discussion draft of the bill obliterated the protections afforded under Section 230. 213 The prior draft obliged websites to respond to takedown requests within forty-eight hours or face criminal liability for user-uploaded content. 214 If they did not remove the content, websites were required to conduct a consent determination and inform the individual of the website's [*1868] authority to host the content. 215 This overly burdensome requirement impinged on the vital role of interactive websites in promoting free exchange of information. 216 Section 230 provides Internet intermediaries broad immunity in order to allow individuals to communicate directly with one another instead of relying on skewed traditional media sources. 217 The original draft undermined Section 230's legislative purpose by obliging websites like Facebook and Twitter to exhaustively monitor and censor their content. 218

The discussion draft blatantly ignored the practical realities of today's online world. 219 Obliging major websites to respond to takedown requests within forty-eight hours of receiving notice is unreasonable. 220 Websites like Facebook, for instance, would theoretically have to dedicate an entire department to monitoring and completing these requests daily. 221 Furthermore, requiring major social [*1869] media websites to conduct an ad-hoc consent based determination is untenable. 222 The 2015 discussion draft obligated interactive websites, who did not remove the requested material, to notify the individual of their authority to post the content. 223 The issue is

91 Citron & Franks, supra note 6, at 358. Courts are reluctant to allow plaintiffs to sue under a pseudonym because it denies defendants the ability to confront their accusers. Id.

92 Id.; Kitchen, supra note 19, at 254.

93 Kitchen, supra note 19, at 254.

94 Cooper, supra note 88, at 824.

95 See infra notes 98-118 and accompanying text.

96 See infra notes 98-108 and accompanying text.

97 See infra notes 109-118 and accompanying text.

98 Digital Millennium Copyright Act, 17 U.S.C. § 512 (2012). Congress enacted the Online Copyright Infringement Liability Limitation Act ("Section 512") of the Digital Millennium Copyright Act ("DMCA") in order to provide notice to Internet service providers ("ISP") about their possible liability for claims of copyright infringement. Levendowski, supra note 57, at 442. Section 512 of the DMCA sets out a "notice and takedown" regime, which protects ISPs from copyright infringement if they comply with a copyright holder's takedown request. Id. at 442-43.

99 17 U.S.C. § 512(c)(3). The takedown request for claimed infringement must include the following: identification of the content claimed to have been infringed, reasonably sufficient information to identify the material on the service provider's website, the signature and contact information of the complaining party, a statement that there is a good faith belief the material is not authorized by the copyright owner, and a statement that the included information is correct. Id. § 512(c)(3)(A)(i)-(vi). A revenge porn victim may file a Section 512 takedown request without hiring a lawyer or registering their copyright. Levendowski, supra note 57, at 442.

John Caher Page 16 of 29 59 B.C. L. Rev. 1839, *1869 that interactive website providers, by definition, host content that is user, not provider, uploaded. 224 Hence, these Internet intermediaries do not possess the information necessary to make such a determination. 225 Without the capabilities to elect the consent determination option, Internet intermediaries only have one option--remove the content. 226 The resulting effect chills speech and plainly subverts Section 230's congressional purpose to promote Internet exceptionalism. 227 For this reason, it is necessary to uphold the safe harbor provision in the most recent draft of the proposed bill. 228

B. Revenge Porn Victims Are Nonetheless Protected Despite Heightening the Mens Rea Required for Internet Intermediaries

The IPPA provides a safe harbor for Internet intermediaries so long as they do not intentionally solicit nonconsensual pornography. 229 Unlike earlier versions of the bill that imposed a "negligence" mens rea, the 2016 version of the IPPA requires an "intentional" mens rea for criminal prosecution. 230 Heightening the mens rea is necessary to avoid unduly restricting ISPs. 231 Revenge porn victims are nonetheless protected by the legislation's ability to target revenge porn [*1870] websites and the voluntary efforts of major social media companies who solicit revenge porn. 232

The 2016 IPPA bifurcates the requisite mens rea for lack of consent. 233 Prosecutors must prove that an individual perpetrator intentionally disseminated nonconsensual pornography with "reckless disregard" for the subject's lack of consent. 234 The mens rea for ISPs, however, is higher and requires an "intentional" solicitation of involuntary pornography. 235 This is a welcomed changed from the 2015 discussion draft for ISPs. 236 The earlier version of the bill touted a mens rea of "knew or should have known" for both individual perpetrators and ISPs. 237 Heightening the mens rea for ISPs protects the legislative purpose of Section 230, which is to promote the free flow of information. 238 Ascribing a higher mens rea in order to impose liability on ISPs shields websites from criminal liability for negligently publishing nonconsensual pornography. 239 In turn, websites will not be incentivized to over-

100 See 17 U.S.C. § 512(c)(1)(A)(iii) (providing that an ISP is not liable for copyright infringement if it obtains knowledge of infringement and "acts expeditiously to remove, or disable access to, the material"); Levendowski, supra note 57, at 443 (ISPs "that comply with Section 512's 'notice and takedown' procedures are protected from liability for copyright infringement").

101 Bloom, supra note 21, at 256 (explaining the limitations of this remedy for revenge porn victims).

102 See 17 U.S.C. § 512 (c)(3) (requiring the owner to hold an exclusive right); Bloom, supra note 21, at 256 (noting that only the legal holder of a copyright may pursue action under the DMCA). A copyright holder is a person who owns exclusive rights to reproduce, distribute, display, and duplicate work. Copyright Terms & Definitions, COPYRIGHT SOC'Y USA, http://www.csusa.org/?page=Definitions [https://perma.cc/YWW9-DMMJ].

103 Citron & Franks, supra note 6, at 360 (acknowledging that if someone else took the photograph, then the photographer, and not the revenge porn victim, is the legal holder of the material); Bloom, supra note 21, at 256 (stating that a revenge porn victim may only file a Section 512 takedown request if she originally took the photograph or video). Many victims are the legal holder of the sexually explicit content, however, because the majority of intimate photographs are . Burris, supra note 11, at 2342. A "selfie" is a picture where the photographer is also the subject of the photo. Levendowski, supra note 57, at 426.

104 See Citron & Franks, supra note 6, at 360 (noting that revenge porn websites often ignore takedown notices because many website operators know that victims do not have the resources to hire a lawyer); Linkous, supra note 49, at 17 (explaining that websites can refuse to comply with take down notices and force victims to sue for copyright infringement).

105 Cecil, supra note 21, at 2527.

106 Andrea Peterson, John Oliver Explains the Awfulness That Is 'Revenge Porn,' WASH. POST (June 22, 2015), https://www.washingtonpost.com/news/the-switch/wp/2015/06/22/john-oliver-explains-the-awfulness-that-is-revenge- porn/?utm_term=.eb1f42744ad0 [https://perma.cc/5ZPR-GUU3]. John Oliver commented, "Yes, to stop strangers from seeing their naked bodies, some women have had to send more strangers more pictures of their naked bodies."Id.

John Caher Page 17 of 29 59 B.C. L. Rev. 1839, *1870 censor user-uploaded content because they are not liable for third-party content. 240 Therefore, the "intentional" mens rea advances the goals of Section 230. 241

[*1871] Nonetheless, the IPPA protects revenge porn victims from the dissemination of involuntary pornography by Internet intermediaries. 242 The bill explicitly targets revenge porn websites that solicit nonconsensual pornography. 243 Without this legislation, Section 230 of the CDA completely shields revenge porn websites from liability arising out of user-uploaded content. 244 The IPPA closes this legal loophole by imposing criminal liability on websites that intentionally publish nonconsensual pornography. 245 Hence, the bill pierces Section 230's immunity only for egregious conduct by revenge porn websites without over-criminalizing the innocent behavior of other ISPs. 246

107 Kitchen, supra note 19, at 259. A successful copyright action provides an injunction against the named website, and does not protect victims from un-named websites reposting the material. Id.

108 See Bloom, supra note 21, at 256; Kitchen, supra note 19, at 259 (noting that it is nearly impossible to completely remove infringing material from the Internet once posted).

109 The Communications Decency Act, 47 U.S.C. § 230(c)(1) (2012) (The Communications Decency Act ("CDA") is commonly referred to as Section 230). Section 230 grants ISPs legal immunity for user-uploaded content. Id.; see Cecil, supra note 21, at 2517 (explaining that the CDA grants immunity to website operators for content posted by third parties); Patton, supra note 39,

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at 423 (commenting that the CDA "poses a significant barrier" for revenge porn victims filing lawsuits based on content posted by users of websites, as opposed to operators of websites).

110 47 U.S.C. § 230 (c)(1) (providing that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"). An "interactive computer service" is an information service or software that enables access by multiple users. Id. § 230(f)(2). In contrast, an "information content provider" is a person or entity that is responsible for the creation of information provided by an interactive computer service on the Internet. Id. § 230(f)(3). The statute differentiates between two types of websites: websites that host user-uploaded material, and websites that create content. Patton, supra note 39, at 423; see 47 U.S.C. § 230(f)(2)-(3). Whether the website could face liability or be immune under Section 230 depends on its role in publishing the content. Goldnick, supra note 8, at 601. If the website is merely a "passive conduit" for content provided by its users, and is not responsible for its creation, it is granted immunity from civil liability as an information content provider. Id.

111 See Bloom, supra note 21, at 253 (stating that websites have no incentive to assist revenge porn victims because Section 230 immunizes them for the conduct of their users); Kitchen, supra note 19, at 259 (noting that website operators have no obligation to assist revenge porn victims because Section 230 grants them immunity from any illegal activities stemming from third-party posts on their websites); Patton, supra note 39, at 423 (commenting that courts interpret Section 230's immunity broadly because of the clear congressional intent to encourage Internet growth and open communication even if such communication includes offensive speech).

112 Patton, supra note 39, at 423-24. Because nonconsensual pornography is user-created, the websites that host the content will generally be immune from claims because they are considered interactive computer services under Section 230. Id.

113 47 U.S.C. § 230(a). The congressional finding indicates that (1) the growth of interactive computer services on the Internet advances the number of educational and informational resources available to citizens, (2) interactive service providers offer users a vast degree of control over the information and content they receive, (3) these services provide a diverse forum for political, intellectual, and cultural discourse, (4) the Internet flourishes without government intervention and regulation, and (5) a growing number of Americans are relying on the use of interactive media as sources for political, educational, cultural, and entertainment. Id. § 230(a)(1)-(5). Subsection (b) of Section 230 outlines the policy of the United States: (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services; unfettered by Federal or State regulation; (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services . . . .

Id. § 230(b)(1)-(3).

114 Goldnick, supra note 8, at 599. Congress enacted the CDA to protect the development of the Internet by preventing endless legal claims against interactive media providers for the content its users post. Id. Immunity is not absolute, however, and it does not shield service providers from criminal or federal liability. Citron & Franks, supra note 6, at 367-68.

115 Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997). The court in Zeran v. America Online, Inc., found that: The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

Id. at 331;see47 U.S.C. § 230(b) (2012) (describing a policy favoring the free flow of information on the Internet and minimizing regulations that block or filter access to online material); Patton, supra note 39, at 423.

116 GoDaddy.com v. Hollie Toups, 429 S.W.3d 752, 759 (Tex. App. 2014). In GoDaddy.com v. Hollie Toups, the plaintiffs, a putative class action of women, sued GoDaddy.com ("GoDaddy") for hosting sexually explicit depictions of the plaintiffs despite knowing the images were posted without consent. Id. at 753. The nonconsensual pornography was posted on GoDaddy by two owners of revenge porn websites. Id. In response, GoDaddy contested liability on the grounds that the website is an interactive

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service provider, and not an information content provider. Id. at 755. GoDaddy argued that the revenge porn websites, not GoDaddy, were information service providers with respect to the sexually explicit material, and thus were the correct party to be sued. Id.

117 Id. at 759. The court found GoDaddy acted as an interactive computer service provider and not an information content provider of the nonconsensual pornography posted on its website. Id. The plaintiffs agreed that the revenge porn websites created the offensive content and GoDaddy only published it. Id. at 753.

118 See id. at 759 (holding GoDaddy to be an interactive service provider that published the content). The court supported its holding by reiterating the congressional purpose behind Section 230, which is to promote the free flow of information and eliminate any restraints on communication. Id.

119 See Citron & Franks, supra note 6, at 349 (arguing in favor of a criminal law because civil remedies fail to redress the harm caused by nonconsensual pornography).

120 Id.

121 See infra notes 123-136 and accompanying text.

122 See infra notes 137-156 and accompanying text.

123 See Citron & Franks, supra note 6, at 371 (characterizing New Jersey's statute prohibiting nonconsensual pornography as the broadest); Talbot, supra note 19 (noting the first state to criminalize revenge porn was New Jersey).

124 N.J. STAT. ANN. § 2C:14-9 (West 2016). Section 2C:14-9 provides: a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed. b. (1) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

Id.

125 Id. The New Jersey statute provides the following definitions: (1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise, offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not; and (2) "intimate parts" has the meaning ascribed to it in N.J.S.2C:14-1. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $ 30,000 may be imposed for a violation of this subsection.

Id.

126 Id.; Patton, supra note 39, at 430.

127 Citron & Franks, supra note 6, at 371. It is often regarded as a model statute for criminalizing nonconsensual pornography. Patton, supra note 39, at 430.

128 See CAL. PENAL CODE § 647 (West 2013) (criminalizing nonconsensual pornography); Lauren Williams, California's Anti- revenge Porn Legislation: Good Intentions, Unconstitutional Result, 9 CAL. LEGAL HIST. 297, 308 (2014) (stating that California's anti-revenge porn legislation became effective on October 1, 2013).

129 CAL. PENAL CODE § 647(j)(4). Specifically, the statute provides:

John Caher Page 20 of 29 59 B.C. L. Rev. 1839, *1871

Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

Id.

130 Id. If the victim is a minor, the California anti-revenge porn law imposes a greater punishment of less than one year in jail and/or a $ 2,000 fine. Id. § 774(l)(2).

131 See People v. Iniguez, 202 Cal. Rptr. 3d 237, 240-41 (Cal. App. Dep't Super. Ct. 2016) (affirming the jury's finding that Iniguez violated California's anti-revenge porn statute by distributing a private image); Veronica Rocha, 'Revenge Porn' Conviction Is a First Under California Law, L.A. TIMES (Dec. 4, 2014, 5:00 PM), http://www.latimes.com/local/crime/la-me-1204- revenge-porn-20141205-story.html [https://perma.cc/TT7B-EJVR] (stating that Iniguez was the first person to be convicted under California's revenge porn law and commenting that sharing a private image was outside the scope of the law before the law was enacted in California).

132 Iniguez, 202 Cal. Rptr. 3d at 240-41.

133 Id. at 240.

134 Driscoll, supra note 61, at 100-02; see Williams, supra note 128, at 301-02 (noting that California's legislation has been criticized for possible constitutional violations). Conversely, proponents of anti-revenge porn laws characterize California's law as too weak. Heather Kelly, New California 'Revenge Porn' Law May Miss Some Victims, CNN (Oct. 3, 2013, 3:01 PM), https://www.cnn.com/2013/10/03/tech/web/revenge-porn-law-california/index.html [https://perma.cc/DMG9-RYZ5]. They note that California's law only provides redress when the person who posted the nonconsensual pornography is also the photographer, and does not cover instances when the victim took the photo of herself and later shared the image.Id.

135 Citron & Franks, supra note 6, at 373-74; see Cynthia Barmore, Note, Criminalization in Context: Involuntariness, Obscenity, and the First Amendment, 67 STAN. L. REV. 447, 452 (2015) (referring to California's intent requirement as "demanding"). California's legislation, Danielle Keats Citron and Mary Anne Franks argue, is the weakest because it requires prosecutors to prove both intent to cause serious emotional distress, and also that such harm actually resulted. Citron & Franks, supra note 6, at 373-74.

136 Citron & Franks, supra note 6, at 374. The dissemination of nonconsensual pornography in California is a misdemeanor with up to six months of imprisonment and a $ 1,000 fine, whereas New Jersey's statute makes the crime a felony. Id. California's decision to classify nonconsensual pornography as a misdemeanor deters potential perpetrators less than a felony because a misdemeanor carries a lower punishment and is not viewed as negatively. Diane Bustamante, Comment, Florida Joins the Fight Against Revenge Porn: Analysis of Florida's New Anti-Revenge Porn Law, 12 FLA. INT'L U. L. REV. 357, 382 (2017).

137 See State v. VanBuren, No. 1144-12-15Bncr, at 3-4 (Vt. Super. Ct., July 1, 2016), https://assets.documentcloud.org/documents/2998410/State-v-VanBuren-1144-12-15-Bncr.pdf [https://perma.cc/W9A8-UFP3] (expressing concerns about the constitutionality of Vermont's anti-revenge porn law); Mark Davis,Vermont's Revenge Porn Law Under First Amendment Challenge, SEVEN DAYS (Aug. 2, 2016, 9:33 AM), http://www.sevendaysvt.com/OffMessage/archives/2016/08/02/vermonts-revenge-porn-law-under-first-amendment-challenge [https://perma.cc/Z8X7-NJ2Q] (noting that the Vermont Supreme Court will review the decision); Elizabeth Hewitt,Judge Finds 'Revenge Porn' Law Unconstitutional, VT DIGGER (Aug. 1, 2016), https://vtdigger.org/2016/08/01/judge-finds-revenge-porn- law-unconstitutional/ [https://perma.cc/WN7A-E3XA] (stating that Judge Howard declared the law unconstitutional one year after its enactment). The case is currently under review by the Vermont Supreme Court.See generally Brief for Appellant, VanBuren, No. 1144-12-15Bncr. The Vermont Supreme Court will address whether Superior Court Judge Howard erred in holding that the statute violates the First Amendment of the United States Constitution. Id. 138 13 V.S.A. tit. 13, § 2606 (2016). Specifically, the statute provides: (b)(1) A person violates this section if he or she knowingly discloses a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or

John Caher Page 21 of 29 59 B.C. L. Rev. 1839, *1871

coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm. A person may be identifiable from the image itself or information offered in connection with the image. Consent to recording of the visual image does not, by itself, constitute consent for disclosure of the image. A person who violates this subdivision (1) shall be imprisoned not more than two years or fined not more than $ 2,000.00, or both. (2) A person who violates subdivision (1) of this subsection with the intent of disclosing the image for financial profit shall be imprisoned not more than five years or fined not more than $ 10,000.00, or both.

Id. § 2606(b)(1)-(2).

139 Sam Heller, Shumlin Signs Revenge Porn Bill, VT DIGGER (June 17, 2015), http://vtdigger.org/2015/06/17/shumlin-signs- revenge-porn-bill/ [https://perma.cc/NBQ5-SUVV]. The legislative purpose of Vermont's law against nonconsensual pornography is to provide redress for victims against both former lovers and hosts of revenge porn websites.Id.

140 See Hewitt, supra note 137 (reporting that this was the first application of Vermont's legislation criminalizing revenge porn).

141 VanBuren, No. 1144-12-15Bncr at 1. The complainant privately messaged these photographs to Coon's Facebook Messenger account so that only Coon could access them. Brief for Appellant, supra note 137, at 4.

142 See VanBuren, No. 1144-12-15Bncr at 1 (stating that at the time the photographs were sent, the complainant was not in a relationship with Coon); Brief for Appellant, supra note 137, at 4 (noting that the complainant was previously in a relationship with Coon, but was not in a relationship with him at the time the images were shared).

143 VanBuren, No. 1144-12-15Bncr at 1; Brief for Appellant, supra note 137, at 4. Coon had previously accessed his Facebook account on VanBuren's phone, which automatically saved his account information and allowed VanBuren to later access Coon's account without his knowledge. Brief for Appellant, supra note 137, at 4. The brief states that the victim's sister and co-workers viewed the sexually explicit images. Id. at 5. Tagging someone on Facebook links the tagged person's Facebook page to the photo. Elise Moreau, What Is 'Tagging' on Facebook?, LIFEWIRE (Jan. 25, 2018), https://www.lifewire.com/what-is-tagging-on- facebook-3486369 [https://perma.cc/2QTH-B5Z3].

144 Hewitt, supra note 137. At the time, the complainant worked at a child care facility. Brief for Appellant, supra note 137, at 4-5. VanBuren informed the complainant that she intended to tell the complainant's employer about the photographs because VanBuren believed the complainant should not be able to work with children. Id.

145 Brief for Appellant, supra note 137, at 5. After admitting that she posted the photographs, VanBuren allegedly asked a Vermont state trooper if he thought the victim "learned her lesson." Id.

146 VanBuren, No. 1144-12-15Bncr at 3-5.

147 Id. at 2. The Judge noted that the First Amendment protects freedom of expression, but is limited by its exceptions for obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Id.

148 Id. at 2-3; see, e.g., Miller v. California, 413 U.S. 15, 20-21 (1973) (articulating the standard for obscenity); Roth v. United States, 353 U.S. 476, 484-85 (1957) (holding that obscenity is outside the bounds of First Amendment protection).

149 VanBuren, No. 1144-12-15 Bncr at 3. The Judge held that nudity is not automatically equated to obscenity, and therefore, does not automatically fall into one of the categorical exceptions to First Amendment protection. Id.

150 Id. Even if the court assumed that nonconsensual pornography falls into the obscenity exception, the judge reasoned, the state of Vermont failed to prove there are no other less restrictive alternatives to combat this behavior. Id. Hence, the statute was facially invalid because it was not narrowly drafted to advance the state's interest in protecting the privacy of citizens. Brief for Appellant, supra note 137, at 6. The court also expressed concern about the statute being overly vague but did not rule on the issue. VanBuren, No. 1144-12-15Bncr at 3. Characterizing the facts of the present revenge porn case as atypical, the court seemingly denounced the statute's ability to criminalize the behavior of a third party and not a former partner. Id. Additionally, the court disapproved of the statute's potential to criminalize a spouse who discovers unsolicited sexually explicit photographs and forwards them in anger or disgust. Id.

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151 See Antigone Books, L.L.C. v. Brnovich, No. 2:14-vs-02100-SRB, at 1 (D. Ariz. July 10, 2015), https://www.aclu.org/sites/default/files/field_document/antigone_v_horne_final_decree.pdf [https://perma.cc/ZPQ5-QAKF] (issuing an injunctive decree from enforcing Arizona's overly broad anti-revenge porn law). The doctrine of vagueness prohibits laws that do not clearly define what the legislation aims to prohibit.Grayned v. City of Rockford, 408 U.S. 104, 106-09 (1972) (citing Speiser v. Randall, 357 U.S. 513, 526 (1958)).

152 SeeARIZ. REV. STAT. ANN. § 13-1425 (2014), invalidated by Antigone Books, No. 2:14-vs-02100-SRB. Specifically, the statute provided: It is unlawful to intentionally disclose, display, distribute, publish, advertise, or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.

Id.

153 Antigone Books, No. 2:14-vs-02100-SRB at 1. The order approved a settlement agreement between the defendants and the Arizona Attorney General, who agreed not to enforce the 2014 anti-revenge porn law. Id. at 1-2. The American Civil Liberties Union ("ACLU") filed a lawsuit against the state of Arizona claiming the law criminalizes use of non-obscene images protected by the First Amendment. Complaint at 2, Antigone Books, No. 2:14-vs-02100-SRB. In its complaint, the ACLU argued the law is unconstitutionally vague because it does not require malicious intent, proof of resulting harm, a reasonable expectation of privacy with respect to the images, or an identifiable subject. Id. at 20-21. The complaint further criticized the "should have known" consent standard as unclear. Id. at 24 n.66. The ACLU also noted that the legislation could criminalize the display of the 1972 Pulitzer Prize-winning image, often called the "Napalm Girl," where a nine-year-old girl was captured fleeing from a Vietnamese village after it was bombed with napalm, because she was not voluntarily nude. Id. at 8 n.19. The state agreed to halt enforcing the anti-revenge porn law until it was revised. Bob Christie, Arizona House Approves Revisions to 'Revenge Porn' Law, WASH. TIMES (Mar. 3, 2015), http://www.washingtontimes.com/news/2015/mar/3/arizona-house-sets-vote-on- revisions-to-revenge-po/ [https://perma.cc/3WMC-DKKR]. In 2016, the Arizona legislature successfully passed a revised version of the law with these criticisms in mind.SeeARIZ. REV. STAT. ANN. § 12-1425 (2016). The statute provides: A. It is unlawful for a person to intentionally disclose an image of another person who is identifiable from the image itself or from information displayed in connection with the image if all of the following apply: 1. The person in the image is depicted in a state of nudity or is engaged in specific sexual activities. 2. The depicted person has a reasonable expectation of privacy. Evidence that a person has sent an image to another person using an electronic device, does not, on its own, remove the person's reasonable expectation of privacy for that image.

Id.

154 Katherine Gregg, Raimonda Vetoes 'Revenge Porn' Bill, PROVIDENCE J. (June 21, 2016, 7:43 PM), http://www.providencejournal.com/news/20160621/raimondo-vetoes-revenge-porn-bill [https://perma.cc/W9Y7-6YBC]. The Bill criminalizes the unauthorized dissemination of indecent material in cases where: (1) The person captures, records, stores, or receives a visual image depicting another person eighteen (18) years of age or older engaged in sexually explicit conduct or of the intimate areas of that person; (2) The visual image is captured, recorded, stored, or received with or without that person's knowledge or consent and under such circumstances in which a reasonable person would know or understand that the image was to remain private; and (3) The person by any means, intentionally disseminates, publishes, or sells such visual image without the affirmative consent of the depicted person or persons in the visual image for no legitimate purpose. (b) A third-party recipient of any visual image described in subsection (a) of this section does not violate this section if, they did not have actual knowledge that the visual image was intentionally disseminated, published, or sold in violation of subsection (a) of this section. H. 7537, Gen. Assemb., Jan. Sess. (R.I. 2016).

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CONCLUSION

155 See Driscoll, supra note 61, at 105-06 (commenting on First Amendment concerns that the Rhode Island law raised such as overbreadth); Gregg, supra note 154 (stating that the Rhode Island Governor mentioned the statute would criminalize all work of the human body).

156 Gregg, supra note 154. The Rhode Island Governor suggested a more carefully drafted piece of legislation to avoid overbreadth concerns. Id.

157 Linkuous, supra note 49, at 36-37; Burris, supra note 11, at 2340; Cecil, supra note 21, at 2519. As mentioned previously, state efforts to legislate a prohibition of nonconsensual pornography have been met with varying degrees of success. See supra notes 119-156.

158 See Citron & Franks, supra note 6, at 386 (noting criminal laws are subject to constitutional challenges if they are vague or over-broad); Linkuous, supra note 49, at 36-37 (emphasizing the need for a uniform federal legislation to resolve the constitutionality challenges states like Arizona and Rhode Island have encountered).

159 Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016); Mary Anne Franks, It's Time for Congress to Protect Intimate Privacy, HUFFINGTON POST (July 18, 2016, 1:32 PM), http://www.huffingtonpost.com/mary-anne-franks/revenge-porn- intimate-privacy-protection-act_b_11034998. html [https://perma.cc/H8E8-HFHD]. Congresswoman Jackie Speier (D-CA) introduced the bipartisan Bill on July 14, 2016.See H.R. 5896 (stating the Bill is co-sponsored by the following representatives: Katherine Clark (D-MA), Ryan Costello (R-PA), Gregory Meeks (D-NY), Thomas Rooney (R-FL), John Katko (R-NY), Walter Jones (R-NC), Patrick Meehan (R-PA), Ted Yoho (R-FL), and David Joyce (R-OH)).

160 See infra notes 163-197 and accompanying text.

161 See infra notes 163-175 and accompanying text.

162 See infra notes 176-197 and accompanying text.

163 See H.R. 5896 (criminalizing the dissemination of nonconsensual pornography).

164 Press Release, Congresswoman Jackie Speier, Congresswoman Speier, Fellow Members of Congress Take on Nonconsensual Pornography, AKA Revenge Porn (July 16, 2016), https://speier.house.gov/media-center/press- releases/congresswoman-speier-fellow-members-congress-take-nonconsensual [https://perma.cc/3XZQ-NATS]. Congresswoman Jackie Speier noted that many perpetrators of nonconsensual pornography acknowledge that their victims usually do not have the time or money to pursue civil litigation.Id.

165 Id. In her press release, Congresswoman Jackie Speier acknowledges that many victims of nonconsensual pornography do not have the resources to seek redress, and that the Intimate Privacy Protection Act ("IPPA") attempts to fill this gap in the law with a federal criminal law. Id. The Bill is a culmination of Congresswoman Speier's battle to end revenge pornography by legislating a federal criminal law. See Steven Nelson, Federal 'Revenge Porn' Bill Will Seek to Shrivel Booming Internet Fad, U.S. NEWS (Mar. 26, 2014, 6:01 PM), http://www.usnews.com/news/articles/2014/03/26/federal-revenge-porn-bill-will-seek-to- shrivel-booming-internet-fad (discussing Speier's efforts to introduce legislation in early 2014).

166 H.R. 5896. The Bill purports to amend Title 18 of the United States Code, the federal criminal code. Id.

167 Id. The proposed legislation defines "visual depiction" as any photograph, film, or video. Id. "Sexually explicit conduct" is defined as actual or stimulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or the exhibition of genitals or pubic area of any person. See 18 U.S.C. § 2265(2)(a) (2012).

168 See Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016) (providing exceptions for: (1) law enforcement, (2) individuals who commercially engage in the visual depiction of pornography, (3) where there is a bona fide public interest, and (4) ISPs as defined under Section 230 of the CDA).

169 Id. The IPPA provides exceptions for lawful behavior conducted by law enforcement, correctional, or intelligence officers. Id. Specifically, the Bill provides exceptions for the following scenarios: lawful law enforcement, individuals reporting unlawful activity, and court orders or subpoenas. Id.

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170 Id. Voluntary public or commercial exposure applies to those individuals who voluntarily expose their own genitalia or female nipple and the voluntary engagement in sexually explicit conduct during a lawful commercial setting. Id. In essence, this excepts consenting individuals in the porn industry. See id. (providing exceptions for consensual nudity in a commercial setting).

171 Id. For instance, this exception allows the dissemination of involuntary porn where there is serious artistic or literary value. See id. (excepting involuntary porn for a bona fide public interest).

172 Id. The immunity, however, only extends to ISPs who innocently disseminate the content on their websites, and do not intentionally promote revenge porn. Id.

173 Id.

174 Id. (excepting Section 230 Internet intermediaries who do not solicit nonconsensual porn).

175 Id. (imposing liability on Internet intermediaries who solicit nonconsensual porn).

176 See id. (providing an exception for Section 230 ISPs); supra notes 109-110 and accompanying text.

177 H.R. 5896. The section provides that "[t]his section does not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. [§] 230(F)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section." Id. The safe harbor applies to social media websites because they are ISPs who host, and do not create, content published on their websites. See Communications Decency Act, 47 U.S.C. § 230(c)(1) (2012); Mario Trujillo, Revenge Porn Bill Unveiled After Struggle to Bring Tech on Board, HILL (July 14, 2016, 2:40 PM), http://thehill.com/policy/technology/287773-revenge-porn-bill-unveiled-after- struggle-to-bring-tech-on-board?utm_campaign=HilliconValley&utm_source=twitterfeed&utm_medium=twitter [https://perma.cc/V3V9-3QA9] (stating technology companies were responsible for the delay in introducing the revised Bill). This exception ensures the Bill does not violate Section 230 of the CDA yet provides redress for interactive platforms that specifically promote the dissemination of nonconsensual pornography. Trujillo,supra.

178 Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016). In other words, the IPPA would criminalize interactive platforms whose primary purpose is to publish involuntary porn, but would not punish interactive platforms, like Facebook and Twitter, that post third-party content but do not intentionally solicit involuntary porn. See id. (providing exceptions to ISPs that do not intentionally solicit revenge porn); Press Release, supra note 164 (acknowledging that the IPPA provides a safe-harbor to online intermediaries who post third-party content, but do not solicit nonconsensual pornography).

179 Press Release, supra note 164. Silicon Valley giants Facebook and Twitter support the IPPA because they are granted immunity for third-party content. Id.

180 Id. Erin Egan, Vice President of U.S. Public Policy for Facebook, characterized revenge porn as "abhorrent," and the reason why Facebook proudly joins Speier's effort to combat the issue. Id. Similarly, Amanda Faulkner, U.S. Public Policy Manager for Twitter, regarded nonconsensual pornography as a form of abuse and extolled Twitter's support in the fight against it. Id.

181 See Amanda Hess, Reddit Has Banned Revenge Porn. Sort of., SLATE (Feb. 25, 2015, 11:36 AM), http://www.slate.com/blogs/the_slatest/2015/02/25/reddit_bans_revenge_porn_victims_advocates_and_the_aclu_react_to_the _new.html (opining that Reddit may have changed their privacy policy on revenge porn takedown requests in an attempt to avoid government regulation like the IPPA); Lily Hay Newman,Twitter Moves to Prohibit Revenge Porn, SLATE (Mar. 12, 2015, 7:09 PM), http://www.slate.com/blogs/future_tense/2015/03/12/twitter_updates_its_privacy_policy_against_revenge_porn_and_rep_kathe rine.html [https://perma.cc/2REC-2KZC] (suggesting that Twitter's policy against revenge porn may be an effort to avoid government regulation and handle the problem privately).

182 JACKIE SPEIER, DISCUSSION DRAFT 5-7 (2015), https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2006&context=historical [https://perma.cc/QJ9H-GNFE].

183 Id. The Discussion Draft of the Intimate Privacy Protection Act of 2015 (the "Discussion Draft") included provisions requiring website and search engine operators to remove the material within forty-eight hours after receiving notice that the website

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contains "a visual depiction, the reproduction, distribution, exhibition, publication, transmission, or dissemination of which is in violation of this section." Id. at 5-6. The person depicted, the legal representative of the person depicted, or law enforcement were authorized to provide ISPs notice that the website contains material in violation of the Act. Id. at 7.

184 Id. at 4-8. The Discussion Draft required ISPs to either remove the incriminating content or inform the user about their right to distribute the material. Id. In making a determination about whether a violation occurred, the 2015 draft provided as follows: In determining whether consent was given to publicly disseminate visual depictions of the private area of sexually explicit conduct of an individual covered in [the] section, the operator of a website or search engine must be provided credible information that affirmative consent was given. This may include contacting the individual that uploaded the content.

Id. at 7.

185 Trujillo, supra note 177; see , New Revenge Porn Bill Shows Silicon Valley's Influence in Politics, MOTHERBOARD (July 15, 2016, 4:28 PM), https://motherboard.vice.com/en_us/article/new-revenge-porn-bill-shows-silicon- valleys-influence-in-politics [https://perma.cc/NV82-YCCF] (commenting that lobbying efforts by major social media platforms helped eliminate liability in the 2016 draft of the IPPA).

186 47 U.S.C. § 230(c)(1) (2012).

187 See SPEIER, supra note 182, at 3-7; Jeong, supra note 185 (stating that the initial draft imposed liability on ISPs). The 2015 Discussion Draft required ISPs to respond to takedown requests within forty-eight hours. See Jeong, supra note 185.

188 Jeong, supra note 185 (commenting that the 2016 bill omits portions of the Discussion Draft that weakened Section 230's protections of Internet intermediaries that host third-party content); Adam Clark Estes, This Is the Revenge Porn Law We Need in America, GIZMODO (Feb. 25, 2015, 1:15 PM), http://gizmodo.com/so-what-happens-if-you-have-a-talented-with-photoshop-c- 1688021532 [https://perma.cc/E7P4-556W] (stating that, websites like Facebook are generally immune from illegal content they host, "[b]ut making revenge porn a federal crime would strip away this safe harbor, as Section 230 'does not apply to federal criminal law'").

189 See Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016); Jeong, supra note 185 (noting the absence of the aforementioned provisions). Google, among other ISPs, would have been greatly affected by the Discussion Draft requirements. Jeong, supra note 185. Although major companies like Google, Facebook, and Twitter have announced private efforts to combat revenge pornography, the Discussion Draft would have introduced criminal liability for failing to do so. Id.

190 Jeong, supra note 185.

191 Id. Although many social media platforms have a private system for dealing with revenge porn takedown requests, many objected to the Discussion Draft's notice and takedown procedures because it would have imposed liability for failing to do so. Id.

192 See SPEIER, supra note 182, at 5 (imposing liability on service providers for failing to remove the content within forty-eight hours); Jeong, supra note 185 (commenting that the technology industry's lobbying shaped the Bill's final text).

193 Talbot, supra note 19. Beginning in 2015, many social media platforms adopted procedures enabling victims to fill out online forms requesting the content be removed. Id. Reddit, Twitter, Facebook, and Instagram each have policies combating the dissemination of nonconsensual pornography. Id.

194 Id. Despite the re-indexing, the image will still appear with the correct URL address. Id.

195 Charlie Warzel, Twitter Takes Steps to Combat Stolen Nudes and Revenge Porn, BUZZFEED nEWS (Mar. 11, 2015, 5:55 PM), https://www.buzzfeed.com/charliewarzel/twitter-tackles-revenge-porn?utm_term=.seb27D2K#.liZm9rmA [https://perma.cc/BFK3-ZTEP]. Twitter's nonconsensual pornography policy warns users that they "may not post or share intimate photos or videos of someone that were produced or distributed without their consent."The Twitter Rules, TWITTER, https://help.twitter.com/en/rules-and-policies/twitter-rules [https://perma.cc/48H2-6M9Y]. Similarly, Reddit's privacy policy prohibits revenge porn.Account and Community Restrictions: Do Not Post Involuntary Pornography, REDDIT, https://www.reddithelp.com/en/categories/rules-reporting/account-and-community-restrictions/do-not-post-involuntary- pornography [https://perma.cc/F5GB-RG3C]. The policy provides: "Reddit prohibits the dissemination of images or video

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depicting any person in a state of nudity or engaged in any act of sexual conduct apparently created or posted without their permission, including depictions that have been faked."Id.

196 Talbot, supra note 19.

197 Jeong, supra note 185.

198 See Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016) (prohibiting the dissemination of sexually explicit photographs with reckless regard towards the subject's lack of consent towards the distribution of such photograph).

199 DANIEL CASTRO & ALAN MCQUINN, WHY AND HOW CONGRESS SHOULD OUTLAW REVENGE PORN 5 (2015), http://www2.itif.org/2015-congress-outlaw-revenge-porn.pdf [https://perma.cc/FR6N-TSW5] (commenting that federal legislation should not displace Section 230's immunity for ISPs); Alex Jacobs, Comment,Fighting Back Against Revenge Porn: A Legislative Solution, 12 NW. J.L. & SOC. POL'Y 69, 77 (2016) (commenting that Section 230 creates obstacles to the enforcement of a federal law prohibiting revenge porn because it provides immunity to Internet providers).

200 See infra notes 203-246 and accompanying text.

201 See infra notes 203-228 and accompanying text.

202 See infra notes 229-246 and accompanying text.

203 See Jeong, supra note 185 (commenting that Section 230 is responsible for enabling the growth of many start-up technology companies because they are shielded from lawsuits against their user-created material); Trujillo, supra note 177 (noting technology companies did not originally support the Bill until the safe harbor was introduced).

204 Compare H.R 5896 (excepting internet intermediaries), with SPEIER, supra note 182, at 5, 8-9 (requiring notice and takedown procedures).

205 See supra notes 185-192 and accompanying text.

206 See The Communications Decency Act, 47 U.S.C. § 230(c) (2012) (providing immunity to interactive computer services for the content posted by third-party users); H.R. 5896 (regulating the content on the Internet by criminalizing nonconsensual pornography).

207 See Press Release, supra note 164 ("Technology today makes it possible to destroy a person's life with the click of a button or a tap on a cell phone. That is all anyone needs to broadcast another person's private images without their consent."). In response to this issue, the IPPA criminalizes knowingly distributing sexually explicit content of another with reckless disregard towards the victim's lack of consent. Id.

208 Jia, supra note 45. Congress enacted Section 230 to promote the idea of a self-governed and largely unregulated Internet by providing immunity to Internet intermediaries. Id.

209 See Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016) (granting Section 230 ISPs immunity for publishing third-party created and uploaded content); Jeong, supra note 185 (commenting that the 2016 draft of the IPPA more closely reflects the interests of technology companies). 210 H.R. 5896.

211 Id. § 1802(b)(4) (providing that "[t]his section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. [§] 230(f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. [§] 230(f)(3)) unless such a provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section").

212 See Steven Nelson, Congress Set to Examine Revenge Porn, U.S. NEWS (July 30, 2015, 11:32 AM), https://www.usnews.com/news/articles/2015/07/30/congress-set-to-examine-revenge-porn (addressing the concerns of Internet activists). In 2013, Matt Zimmerman, previously a senior staff attorney at the Electronic Frontier Foundation, warned that adoption of the Discussion Draft may result in over-censorship because "websites would reflexively take down nonoffending

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content to free themselves of potential problems."Id. The legislative purpose of the CDA is to promote the free exchange of ideas on the internet with minimum government regulation. Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). If liability were imposed upon service providers for failing to remove content after a takedown request, service providers would be incentivized to simply remove the material whether or not it was in violation of a government regulation. Id. at 333. Hence, imposing liability creates a chilling effect on free speech because service providers are incentivized to remove content in direct contrast with Section 230's protections. Id.

213 See Jeong, supra note 185 (arguing that the Discussion Draft "would have shattered" Section 230 immunity by imposing a new notice-and-take down system on ISPs).

214 See SPEIER, supra note 182, at 4-5 (providing Section 230 immunity unless the ISP did not respond to take down requests within forty-eight hours). The Discussion Draft provided, in part: In the case of an operator of a search engine, the operator, after receiving notice from a person described in clause (ii) that a search result on that search engine directs the user to a website that contains a visual depiction, the reproduction, distribution, exhibition, publication, transmission, or dissemination of which is in violation of this section, does not, within 48 hours after receiving such notice, remove that search result from the search engine . . . .

Id. at 5.

215 Id. The Discussion Draft allowed ISPs to forgo removing the material within forty-eight hours if they provided notice to the individual who requested the content be removed of their right to publicly disseminate the content. Id.

216 See Laura Cannon, Comment, Indecent Communications: Revenge Porn and Congressional Intent of § 230(c), 90 TUL. L. REV. 471, 473 (2016) (commenting that the congressional intent of the CDA was to protect the Internet from regulation); Jia, supra note 45 (stating the purpose of Section 230 is to offer immunity to Internet intermediaries in order to provide a self- governed Internet). In Zeran v. America Online, Inc., the court explained that imposing liability on Internet intermediaries for failing to respond to takedown requests would restrict speech, and consequently, defeat the purpose of Section 230 of the CDA to promote the free exchange of information on the Internet. 129 F.3d at 333.

217 See Jia, supra note 45 (noting that "[t]he rise of Internet intermediaries enabled individuals to speak directly to the masses without having to rely on traditional intermediaries, who had long determined the substance of media content"). By granting Internet intermediaries immunity for third-party content, Section 230 promotes the free exchange of information. Zeran, 129 F.3d at 331-33. The Zeran court explained that it would be impractical to require ISPs to screen posts made by millions of users utilizing interactive computer services to exchange information. Id. at 331.

218 See Zeran, 129 F.3d at 330-31 (stating the impossibility of requiring Internet intermediaries to screen millions of postings for issues); Samantha H. Scheller, Comment, A Picture Is Worth a Thousand Words: The Legal Implications of Revenge Porn, 93 N.C. L. REV. 551, 586-87 (2015) (commenting that creating an exception to Section 230 for revenge porn defeats the congressional purpose of the CDA, which is to protect ISPs); Scott H. Greenfield, How Long Before the Safe Harbor, Article 230, Falls?, SIMPLE JUST. (Oct. 13, 2013), http://blog.simplejustice.us/2013/10/13/how-long-before-the-safe-harbor-article-230-falls/ [https://perma.cc/398Y-7HAU] (criticizing a revenge porn law for undermining Section 230); Sarah Jeong, Opinion,Revenge Porn Is Bad. Criminalizing It Is Worse, WIRED (Oct. 28, 2013, 9:30 AM), https://www.wired.com/2013/10/why-criminalizing- revenge-porn-is-a-bad-idea/ [https://perma.cc/K2ZJ-82VZ] (noting the tension between a revenge porn law and Section 230).

219 See Zeran, 129 F.3d at 330-31 (commenting on size of the Internet). Because Internet intermediaries have tens of millions of users, it would be impossible for them to screen user uploaded content to avoid liability for each takedown request. Id. at 331.

220 Jeong, supra note 185.

221 See Zeran, 129 F.3d at 331 (noting that Internet intermediaries host millions of users); Jeong, supra note 185 (stating that interactive platforms would have to expend huge resources on screening posts to flag nonconsensual pornography); Michelle Goldberg, Revenge Porn Is Malicious and Reprehensible. But Should It Be a Crime?, THE NATION (Oct. 20, 2014), https://www.thenation.com/article/war-against-revenge-porn/ [https://perma.cc/T7EU-85GX] (explaining that a takedown request on Google could take up to a couple of months or it could be rejected without explanation).

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Revenge porn is an epidemic that can only be effectively remedied by adopting the proposed federal legislation. The IPPA delicately balances the tension between victims of nonconsensual pornography and ISPs. The IPPA was

222 See Zeran, 129 F.3d at 330-31 (commenting on the tremendous amount of information communicated via the Internet and the impracticalities for Internet intermediaries to screen every posting).

223 See SPEIER, supra note 182, at 5 (granting ISPs the ability to forego removing the requested content so long as they provide notice of their ability to republish the material). In order to determine whether consent was granted to the ISP, the Discussion Draft provides that "the operator of a website or search engine must be provided credible information that affirmative consent was given. This may include contacting the individual that uploaded the content." Id. at 7.

224 See 47 U.S.C. § 230(f)(2)-(3) (2012) (defining an interactive computer service as a publisher of third-party created content and an information content provider as a person responsible for creating content).

225 See Goldnick, supra note 8, at 601 (explaining that an interactive service provider acts as a "passive conduit" with regard to user-created content, and is not liable under Section 230). Internet intermediaries merely host third-party content. Zeran, 129 F.3d at 330-31.

226 See Nelson, supra note 165 (addressing the concerns of Internet activists that the Discussion Draft would result in websites over-censoring their content to avoid criminal liability).

227 Id. (commenting that a federal revenge porn law requiring Internet intermediaries to respond to takedown requests conflicts with Section 230's protections).

228 See Jeong, supra note 185 (noting that including the safe harbor in the IPPA was necessary to uphold Section 230 of the CDA).

229 Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016). The criminal prohibition does not apply to Section 230 ISPs unless they intentionally promote or solicit nonconsensual pornography. Id.

230 Id.; Discussion Draft, supra note 182.

231 Jeong, supra note 185; see 47 U.S.C. § 230(c) (2012) (granting immunity to ISPs).

232 Jeong, supra note 185.

233 See H.R. 5896 (requiring a mens rea of "intentional" promotion or solicitation of revenge pornography); SPEIER, supra note 182, at 2-3 (imposing a "knew or should have known" mens rea standard with regard to the perpetrators knowledge that the subject did not consent). With regard to this discussion, mens rea refers to the awareness of the victim's lack of consent for the images to be disseminated. Jacobs, supra note 199, at 87. 234 H.R. 5896.

235 Id. Increasing the requisite mens rea narrows the scope of ISP behavior subject to criminal prosecution. Priyanka Nawathe, Congresswoman Speier's Revenge Pornogrphy Bill: Crossing the First Amendment Line?, JOLT DIGEST (July 25, 2016), http://jolt.law.harvard.edu/digest/congresswoman-speiers-revenge-pornography-bill-crossing-the-first-amendment-line [https://perma.cc/638Q-KHWB].

236 Mike Masnick, Federal Revenge Porn Bill Not as Bad as It Could Have Been, Still Probably Unconstitutional, TECH DIRT (July 15, 2016, 10:39 AM), https://www.techdirt.com/articles/20160714/17282334978/federal-revenge-porn-bill-not-as-bad-as-it- could-have-been-still-probably-unconstitutional. shtml/ [https://perma.cc/FPF9-B926]. The 2015 Discussion Draft imposed liability on ISPs for failing to remove content within forty-eight hours of a take-down request. SPEIER,supra note 182, at 5.

237 SPEIER, supra note 182, at 2-3.

238 See 47 U.S.C. § 230(c) (2012) (providing immunity to ISPs in order to promote the free flow of information on the Internet); Nawathe, supra note 235 (stating that a higher mens rea narrows the scope of behavior subject to criminal liability). Thus, only websites that intentionally solicit nonconsensual pornography will be liable under the IPPA. H.R. 5896.

John Caher Page 29 of 29 59 B.C. L. Rev. 1839, *1871 introduced in response to the legal ambivalence towards revenge porn victims and little deterrence in the way of its perpetrators. Previous efforts to legislate a national prohibition of involuntary porn were halted by claims that imposing criminal sanctions on websites would violate Section 230 of the CDA. The most recent draft, however, addresses these criticisms by upholding Section 230 unless a website "intentionally" solicits revenge porn. This compromise is necessary to combat the prior pitfalls of Section 230, which shielded revenge porn websites from criminal liability, but also provides redress for revenge porn victims.

Boston College Law Review Copyright (c) 2018 Boston College Law School Boston College Law Review

End of Document

239 See Burris, supra note 11, at 2355 (commenting that an intentional mens rea avoids criminalizing the accidental or unintentional publication of revenge porn); Nelson, supra note 212 (commenting that the IPPA does not punish for the unintentional disclosure of nonconsensual pornography for Section 230 ISPs).

240 See Nelson, supra note 165 (addressing the concerns of Internet activists that the Discussion Draft would result in websites over-censoring their content to avoid criminal liability).

241 See Nelson, supra note 212 (stating that the IPPA, in its final form, upholds the CDA's protection for ISPs).

242 See Intimate Privacy Protection Act, H.R. 5896, 114th Cong. (2016); Cooper, supra note 88, at 838 (discussing the balance needed in a law to target revenge porn websites without over-censoring all third-party hosts). Although the IPPA upholds Section 230 of the CDA, it narrows its protections and imposes liability on Internet intermediaries who solicit revenge porn. H.R. 5896.

243 See H.R. 5896 (creating legal liability for Internet intermediaries who solicit nonconsensual pornography).

244 See 47 U.S.C. § 230(c)(1) (2012); Dawkins, supra note 18, at 407-08.

245 See H.R. 5896; Dawkins, supra note 18, at 407-08.

246 See Jeong, supra, note 185 (noting the IPPA upholds Section 230's protections for Internet intermediaries, but criminalizes websites that solicit revenge porn).

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