Should Government Ban Revenge Porn?
In an attempt to take down the threat of creepy, vengeful exes, California Governor Jerry Brown signed a bill that bans revenge porn into law on October 1. The law, which took effect immediately, makes it illegal to post identifiable nude photos of another person online without their consent and with "the intent to cause substantial emotional distress or humiliation." Offenders can be sentenced to up to one year in jail and levied with a $1,000 fine.
Legislators in New York are now looking to follow suit with an even more expansive law. Some activists are pushing for the federal government to create sweeping legislation (which, if state laws stand, may be inevitable anyway given that Internet traffic crosses state lines.)
While those advocating for revenge porn laws are trying to rectify a serious social problem that has led to several high-profile cases of young girls committing suicide, the laws unfortunately pose risks of their own.
As with all laws criminalizing speech, revenge porn laws may violate the First Amendment. Back in June, the Electronic Frontier Foundation criticized California's bill, saying, "It also criminalizes victimless instances. And that's a problem with the First Amendment." The ACLU initially voiced concern that the law could be used to censor photos with political implications or containing evidence of a crime.
Likewise, Jeff Hermes, Director of the Digital Media Law Project at Harvard, contends that the law is problematic because it doesn't make exemptions for newsworthy stories. For instance, politicians like former New York Congressman Anthony Weiner (who claimed that someone else maliciously released those famous pics) could use it to protect themselves from appearing in a compromising situation.
Even beyond the laws' specifics is the fact that – regardless of how it's worded – the law criminalizes images, which cannot be inherently harmful. Society's reaction to nude photos is what causes victims' emotional and professional suffering. And since each generation becomes increasingly comfortable with nudity and sexuality, revenge porn laws may soon be another outdated and impossible-to-remove statute on the books.
Revenge porn laws also run the risks characteristic of most criminal statutes: they are inflexible, they could create victims where there are none, they are susceptible to discriminatory police enforcement, and they add more inmates to a country with the highest per capita prison population in the world.
This is in contrast to civil lawsuits, in which the amount of compensation awarded to plaintiffs is determined on a case-by-case basis, defendants are only brought to trial when victims feel seriously harmed, police have less room to discriminate, and offenders pay out-of-pocket rather than in a jail cell. In fact, numerous victims of revenge porn have successfully sued their exes in civil court.
Most importantly, we can resolve the fundamental problems underlying revenge porn through cultural change that doesn't involve the risks associated with legal bans. We inadequately shame those who share images of others' nudity without their consent. We need to be sure to ostracize everyone who even considers posting revenge porn.
