Criminalization in context: involuntariness, obscenity, and the First Amendment.

• Author: Barmore, Cynthia

INTRODUCTION I. CRIMINAL AND CIVIL PENALTIES FOR REVENGE PORN A. State Laws Criminalizing Revenge Porn B. Other Potentially Applicable Criminal Laws C. The Inadequacy of Civil Penalties to Deter and Punish Perpetrators of Revenge Porn II. HOW TO BEST CRIMINALIZE REVENGE PORN WITHOUT VIOLATING THE FIRST AMENDMENT A. Bringing Revenge Porn Under the Umbrella of Obscenity B. The Case for Criminalizing the Nonconsensual Distribution of "Selfies" C. The Case for Not Requiring Specific Intent to Cause Emotional Distress D. The Case for Including a Public Interest Exception in the Law III. THE RISKS OF DRAFTING REVENGE PORN LAWS AS ANYTHING BUT OBSCENITY PROHIBITIONS A. Defending Revenge Porn Laws as Prohibiting Publication of Purely Private Facts B. Defending Revenge Porn Laws as Narrowly Tailored to Achieve Compelling State Interests CONCLUSION INTRODUCTION

On a Friday afternoon in July, Ian Barber posted naked pictures of his then-girlfriend to his Twitter account. He also sent copies to her employer and her sister. Seven months later, New York's first revenge porn prosecution wound its way to Judge Statsinger, who declared that while Barber's conduct was "reprehensible," it was not a crime in New York. (1) Sadly, Barber's conduct no longer appears even that uncommon. A 2013 study found that ten percent of eighteen- to fifty-four-year-olds with a former partner threaten to post risque images of the former partner online, with nearly sixty percent of threats carried out. (2)

Involuntary pornography takes a variety of forms, each carrying a varying degree of criminality under state and federal law. Computer hackers obtain content illegally, triggering federal law that prohibits unauthorized access to computer files. (3) State-level Peeping Tom and invasion of privacy statutes typically prohibit secretly filming another person's sexual acts. (4) Child pornography laws outlaw all pornography featuring minors, whether purportedly consensual or not. (5) The least protected instance of involuntary pornography, however, occurs when sexual partners distribute intimate images of adults that were shared with the expectation they would remain private. This category, referred to as "revenge porn," covers the distribution of images for which all adult partners consented to production but not distribution. (6) While types of involuntary pornography overlap, this Note focuses on revenge porn featuring adults who consented to production but not distribution--one of the least addressed problems in both the law and the academic literature. (7)

While the named phenomenon of revenge porn is relatively new, there is a clear imperative to fight its proliferation. Revenge porn is a growing problem, as websites dedicated to involuntary pornography have multiplied in recent years. (8) Sexually explicit pictures are often accompanied by the victim's name and address as well as links to social media profiles, leading to safety threats, job loss, and social harm. (9) One study suggests that 47% of victims of revenge porn consider suicide. (10) Despite the risks, people continue to share explicit images believing their loved ones will never betray them. In anticipation of Valentine's Day in 2013, one study found that 43% of men and 29% of women planned to send "sexy or romantic photos" to their partners via e-mail, text message, or social media to celebrate the holiday. (11)

This Note provides the first in-depth analysis of how revenge porn laws can be justified under the obscenity exception to the Free Speech Clause of the First Amendment and discusses the normative and legal implications of state legislation. (12) It argues that states should model criminal prohibitions on obscenity law and follow New Jersey's approach to make nonconsensual distribution of pornography a crime regardless of who took the picture or the harm intended to be caused. Part I outlines existing laws on revenge porn, discusses trends in recently passed legislation, and explains why alternative criminal and civil penalties are inadequate to deter and punish perpetrators of revenge porn. Part II argues that revenge porn should be prohibited as obscenity, making the normative case for specific content in revenge porn laws and responding to the criticism that robust legislation violates the First Amendment. Part III explores alternative ways to justify the constitutionality of revenge porn laws and argues that obscenity law offers the safest course for statutes to withstand First Amendment challenge. Put simply, there is no constitutional right to distribute pornography without the consent of all participants.

1. CRIMINAL AND CIVIL PENALTIES FOR REVENGE PORN

   Before 2014, just two states---New Jersey and California--criminalized revenge porn in the United States, but more have recently followed suit. State legislatures enacted a flurry of laws criminalizing revenge porn during the spring of 2014, others are debating draft legislation, (13) and Congress may soon consider its own federal bill. (14) There is little consistency across current legislation, however, with states adopting a range of approaches to criminalization. Notably, while varying state approaches reveal benefits and drawbacks of particular legislative content, not one state with a revenge porn law on the books models its legislation on traditional obscenity statutes, explored in Part II.

   1. State Laws Criminalizing Revenge Porn

      New Jersey is an accidental pioneer of revenge porn legislation. In 2004, New Jersey enacted a broad invasion of privacy law that, according to the New Jersey Office of the Attorney General, was intended to capture people who secretly videotape sexual activity. (15) While the legislature never discussed revenge porn, it drafted broad language that brought revenge porn within its reach. (16) Under New Jersey law, it is a third-degree felony to disclose sexually explicit images unless the depicted individual consented to disclosure. (17) The only mens rea required by the statute is that the actor must "know[] that he is not licensed or privileged" to disclose the image. (18) By its plain language, the statute encompasses all nonconsensual distribution, whether the distributor acquired the image consensually or not, and independent of the reasons for distribution. The statute specifies only one affirmative defense, covering cases in which the distributor provides prior notice of intent to distribute and "act[s] with a lawful purpose." (19) While there is no explicit exception for distributing newsworthy images, the First Amendment gives that act an intrinsically lawful purpose. (20)

      In 2013, California became the second state to criminalize revenge porn. In contrast to New Jersey, California enacted a significantly weaker statute, deemed "[t]he Swiss cheese of revenge porn laws." (21) California originally criminalized only a narrow subset of revenge porn, making it a misdemeanor for a photographer to distribute sexually explicit images of someone else that he or she recorded "under circumstances where the parties agree or understand that the image shall remain private," if the photographer intends to and does cause the depicted person "serious emotional distress." (22) California's original law criminalized only instances in which the distributor and photographer were the same person, thereby excluding "selfies" (23) from its reach, (24) but the law was later widened to prohibit distribution even when the distributor is not the photographer. (25) The law's requirement of specific intent to cause serious emotional distress imposes a demanding level of proof on prosecutors and excludes instances of nonconsensual distribution that cause such harm and are equally worthy of prohibition but are motivated by financial or other considerations. (26)

      State legislatures across the country have been increasingly willing to take up the issue of revenge porn. During 2014, Arizona, Colorado, Delaware, Georgia, Hawaii, Idaho, Illinois, Maryland, Pennsylvania, Utah, Virginia, and Wisconsin enacted legislation to criminalize revenge porn. (27) Those states adopted a range of approaches: some passed strong prohibitions that mirror New Jersey's, while others enacted more modest laws that resemble California's. There is no consensus among those states as to the best approach, and a fairly even split has developed between states broadly criminalizing revenge porn and others hinging prohibitions on intent to harass or cause emotional distress. Strikingly, not one of those states criminalized revenge porn under obscenity law. Furthermore, just two of those states--Colorado and Wisconsin-included an exception to criminal liability for distributing legitimately newsworthy images, and none expressly excluded selfies from protection.

      Arizona, Delaware, Idaho, Illinois, and Wisconsin are in the camp of states enacting broad criminal laws against revenge porn. Arizona's statute is representative, lacking any requirement that the distributor intend to cause emotional harm. (28) The only required mens rea is one of negligence: to be criminally liable, the distributor at least "should have known that the depicted person has not consented to the disclosure." (29) Delaware and Illinois also prohibit nonconsensual distribution when the distributor "should have known" about the lack of consent, provided the circumstances give the depicted person a reasonable expectation of privacy. (30) Idaho enacted a similarly broad law that criminalizes dissemination of intimate images when the distributor "reasonably should have known" that "one ... or both parties agreed or understood that the images should remain private." (31) Wisconsin's law is somewhat narrower, requiring actual knowledge about the lack of consent or that the image is "a private representation." (32) The laws of Arizona, Delaware, and Idaho do not contain an exception for the distribution of newsworthy material, (33) although Wisconsin's law does...