Revenge Porn, State Law, and Free Speech

63 Pages Posted: 27 Jan 2014 Last revised: 2 Jun 2015

Date Written: October 1, 2014

Abstract

For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.

Keywords: Revenge porn, tort law, criminal law, First Amendment, Free Speech Clause

Suggested Citation

Larkin, Jr., Paul James, Revenge Porn, State Law, and Free Speech (October 1, 2014). Loyola of Los Angeles Law Review, Vol. 48, 2014. Available at SSRN: https://ssrn.com/abstract=2385620 or http://dx.doi.org/10.2139/ssrn.2385620

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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