How to Write a Constitutional 'Revenge Porn' Law

30 Pages Posted: 2 Nov 2014

Date Written: October 30, 2014

Abstract

Most of the recently enacted revenge-porn laws are content-based regulations of speech. They are, as such, unconstitutional unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. However, by paying closer attention to the constitutional precedents, a legislature should be able to write a law that addresses the primary harms of revenge porn without being subject to strict scrutiny as content discrimination. One approach, suggested here, is to frame the law so that it establishes an otherwise valid non-speech crime and has a burden on speech that is only “incidental.” Such law should be able to avoid the content-discrimination trap and thus survive constitutional scrutiny for the same reasons that the harassment prohibitions of Title VII do. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an initiative by government to suppress speech that it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.

Keywords: revenge porn, privacy, free expression, free speech, First Amendment, information privacy, identity, private life, reputation, defamation, cyberbullying, sexting

Suggested Citation

Humbach, John A., How to Write a Constitutional 'Revenge Porn' Law (October 30, 2014). Available at SSRN: https://ssrn.com/abstract=2517610 or http://dx.doi.org/10.2139/ssrn.2517610

John A. Humbach (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States
(914) 422-4239 (Phone)
(914) 422-4015 (Fax)

HOME PAGE: http://law.pace.edu/jhumbach/

Register to save articles to
your library

Register

Paper statistics

Downloads
323
rank
91,324
Abstract Views
1,570
PlumX Metrics
!

Under construction: SSRN citations while be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information