Revenge Pornography and First Amendment Exceptions
| Citation | Vol. 65 No. 3 |
| Publication year | 2016 |
Revenge Pornography 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 "revenge 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, Facebook 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 sexual assault. 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
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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, obscenity, child pornography, 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.
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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.
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
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these are clumsily drawn,8 it is possible for a law to target revenge pornography with precision. Danielle Citron 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.
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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 United States 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
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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...
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