Casually imagine one day you
come into work, and everyone is looking at you very oddly. They walk hurriedly
past you, trying to avoid you--some snicker and laugh. The boss calls you over,
and you wonder what’s wrong. He googles your name in
front of you, and there you are on several porn sites. Unbeknownst to you, your
vindictive ex had sent private photos to these websites--along with your name,
phone number, home address, work address, etc. Now, you’ve lost your job, any
future hope of getting a job, many friends and don’t know what to do.
This scenario is the reality for countless women and some men. Tyler Clementi
committed suicide over it.
This is known as revenge porn. And it’s only illegal in 12 states.
Issues with free expression are certainly at play here. Proponents of revenge porn claim it is their right according to the First Amendment to post the pictures, and that criminalizing this behavior would infringe on free speech. Former Supreme Court justice Andrew Napolitano says, "Criminalizing the distribution of that which was freely given and freely received would be invalidated under the First Amendment," Napolitano said on Fox. "The First Amendment is not the guardian of taste." Saying someone shouldn’t have taken the pictures in the first place is digital victim-blaming.
Currently, there is no federal case against revenge porn. Unlike child pornography, ruled illegal in New York v. Ferber, most revenge porn doesn’t meet the definition of “obscene”. If it is obscene, it isn't covered by the First Amendment. In Miller v. California, obscenity was defined as work that“taken as a whole, lacks serious literary, artistic, political, or scientific value" and content that “ depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law”. Advocates of revenge porn have maintained it doesn't meet the definition of obscene. In addition, defendants claim that they are victims of SLAPP--civil complaints that aim to stifle free speech.
However, there are several provisions against anti-cyberharrassment, under which revenge porn can be categorized. Victims can now invoke the Digital Millennium Copyright Act, and service providers have to take down the offensive material, but by then the damage has been done. Some couples even have anti-revenge porn clauses in pre-nups.
Even though some states have laws against it, those laws still need tweaking. California recently passed a bill, SB1255 in February, criminalizing revenge porn. The bill states that if someone distributes sexually explicit images “under circumstances in which the persons agree or understand that the image 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, is guilty of disorderly conduct”. This is progress, but the law doesn’t cover pictures victims take of themselves—AKA selfies—which others then distribute. This happens 80% of the time.
Where revenge porn is concerned, the U.S. would do well to imitate other nations. Israel first made revenge porn a sex crime punishable by up to five years in prison. In the Philippines, “copying, reproducing, sharing or exhibiting sexually explicit images or videos over the Internet without written consent of the individual depicted” is a crime. Until a federal law exists to criminalize this abhorrent practice, revenge porn will continue to ruin lives.
This is known as revenge porn. And it’s only illegal in 12 states.
Issues with free expression are certainly at play here. Proponents of revenge porn claim it is their right according to the First Amendment to post the pictures, and that criminalizing this behavior would infringe on free speech. Former Supreme Court justice Andrew Napolitano says, "Criminalizing the distribution of that which was freely given and freely received would be invalidated under the First Amendment," Napolitano said on Fox. "The First Amendment is not the guardian of taste." Saying someone shouldn’t have taken the pictures in the first place is digital victim-blaming.
Currently, there is no federal case against revenge porn. Unlike child pornography, ruled illegal in New York v. Ferber, most revenge porn doesn’t meet the definition of “obscene”. If it is obscene, it isn't covered by the First Amendment. In Miller v. California, obscenity was defined as work that“taken as a whole, lacks serious literary, artistic, political, or scientific value" and content that “ depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law”. Advocates of revenge porn have maintained it doesn't meet the definition of obscene. In addition, defendants claim that they are victims of SLAPP--civil complaints that aim to stifle free speech.
However, there are several provisions against anti-cyberharrassment, under which revenge porn can be categorized. Victims can now invoke the Digital Millennium Copyright Act, and service providers have to take down the offensive material, but by then the damage has been done. Some couples even have anti-revenge porn clauses in pre-nups.
Even though some states have laws against it, those laws still need tweaking. California recently passed a bill, SB1255 in February, criminalizing revenge porn. The bill states that if someone distributes sexually explicit images “under circumstances in which the persons agree or understand that the image 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, is guilty of disorderly conduct”. This is progress, but the law doesn’t cover pictures victims take of themselves—AKA selfies—which others then distribute. This happens 80% of the time.
Where revenge porn is concerned, the U.S. would do well to imitate other nations. Israel first made revenge porn a sex crime punishable by up to five years in prison. In the Philippines, “copying, reproducing, sharing or exhibiting sexually explicit images or videos over the Internet without written consent of the individual depicted” is a crime. Until a federal law exists to criminalize this abhorrent practice, revenge porn will continue to ruin lives.
Sources:
http://www.businessinsider.com/is-revenge-porn-protected-by-the-first-amendment-2013-9#ixzz3DldgSLXq
http://www.npr.org/blogs/itsallpolitics/2014/03/06/286388840/race-to-stop-revenge-porn-raises-free-speech-worries
http://www.firstamendmentcenter.org/pornography-obscenity
http://www.wired.com/2013/10/why-criminalizing-revenge-porn-is-a-bad-idea/
http://www.businessinsider.com/is-revenge-porn-protected-by-the-first-amendment-2013-9#ixzz3DldgSLXq
http://www.npr.org/blogs/itsallpolitics/2014/03/06/286388840/race-to-stop-revenge-porn-raises-free-speech-worries
http://www.firstamendmentcenter.org/pornography-obscenity
http://www.wired.com/2013/10/why-criminalizing-revenge-porn-is-a-bad-idea/
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