How to Write a Constitutional 'Revenge Porn' Law
30 Pages Posted: 2 Nov 2014
Date Written: October 30, 2014
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: Suggested Citation