Should Revenge Porn Be a Crime?
Romantic breakups are never fun—but add revenge porn to the mix and things can get downright cruel. Revenge porn is defined as the dissemination of sexually explicit images of an ex-lover without their permission. It can often be emotionally devastating and have lasting effects on a person's reputation and employability.
That's exactly what Nicole Coon, a 25-year-old Virginia nursing student, experienced last November when she found a sexually explicit video of herself on the Internet. Coon had filmed and sent the video to her boyfriend of 8 years; however, once the relationship went sour he allegedly posted the video online. The website where he allegedly posted advertises as a platform for revenge porn.
Coon's sexuality—intended only for the eyes of her partner—was now being seen by family, friends, and potential employers.
"I did it because I was happy and in love and I trusted someone," says Coon, "the experience has changed me as far as trust goes. My trust [in people] has gone down tremendously."
Coon contacted the website asking for it to be taken down. The website would only comply in exchange for $500. Coon declined to pay, feeling that she shouldn't be financially burdened for what was a cruel invasion of her privacy.
The nursing student fears for her future employment opportunities.
"My reputation is everything. I don't want this situation to alter anything in the future. I don't want [people] to look at me any less."
Virginia Delegate Marcus Simon (D-Falls Church) wants to deter this behavior in his state. He introduced House Bill 49 last December that would make revenge porn a state crime. Since then his bill has been incorporated into Delegate Robert Bell's (R-Charlottesville) House Bill 326. Bell's legislation overwhelmingly passed both chambers and was signed by Democratic Gov. Terry McAuliffe in March.
The legislation will go into effect this July and makes it unlawful for "any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells" an image which depicts another person in a "state of undress" where "such person knows or has reason to know that he is not licensed or authorized" to disseminate. The new law classifies any violation as a Class 1 misdemeanor, punishable by a fine and up to a year in jail.
Virginia, Utah, and Idaho have all enacted legislation this year criminalizing revenge porn; they join New Jersey and California which were the first states to do so. Nineteen other states have proposed similar legislation.
While most people sympathize with the victims, some fear criminalizing this behavior will have dire consequences on constitutionally protected free speech.
"The Supreme Court's position, rightly, is that all speech is by default protected by the First Amendment," says Lee Rowland of the American Civil Liberties Union (ACLU).
"We always start out with the presumption that speech is protected by the First Amendment. It's a messy, beautiful element of our constitutional tradition. Where the Supreme Court has acknowledged that you can assign penalties to behavior, it's when that behavior is conduct rather than speech. And that's what makes revenge porn so difficult, because the conduct is speech. The conduct of posting a photograph without someone's consent is speech."
Rowland argues that most state laws that have tried to grapple with revenge porn end up criminalizing the posting of an image.
Revenge porn, according to Rowland, is better handled under civil law. In most states, civil laws are already on the books that make it unlawful to maliciously cause emotional distress, intentionally invade someone's privacy, or participate in extortion and harassment. Expanding civil laws to include revenge porn where they don't, Rowland says, is a better solution than criminalizing it.
"At the end of the day, those civil remedies need to take into account the complexity of human intimacy, the violation of human trust. Those are things that the civil law does all the time in the context of human relationships—the criminal law not so much. The criminal law is such a blunt instrument that we have real doubts that it's possible to draft these laws in a way that won't end up criminalizing pure speech."
However, Rep. Jackie Speier, (D-Calif.), is looking to take the criminalization of revenge porn to the federal level. Speier is expected to introduce the bill sometime next month. A federal law against revenge porn could have a whole new set of First Amendment consequences. State legislation, such as Virginia's, only targets the individual posters and not the websites which serve as platforms. Most revenge porn websites are federally protected by section 230 of the Communications Decency Act. This section prohibits websites from being held liable for the actions of third parties. A federal criminal law against revenge porn would nullify this protection.
Civil libertarians are concerned this type of statute will lead to overreach and have a chilling effect on speech. Internet companies, it is feared, would respond to a criminal law against speech by removing content anytime there is a complaint in order to avoid legal issues. Individuals, too, will begin to self-censor rather than be caught up in criminal court. If this happens, the universe of speech available online will begin to diminish.
"I am truly concerned that the new wave of revenge porn laws will create far more problems than solutions," says Rowland.
About 6 minutes.
Produced by Amanda Winkler. Camera by Joshua Swain, Jim Epstein, and Winkler. Narrated by Alexis Garcia.
Scroll down for downloadable versions, and subscribe to Reason TV's YouTube channelto receive automatic notification when new material goes live.
