The Constitution and Revenge Porn

Abstract

Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech 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. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.

Note: This article is a revised and finalized version of a working paper previously available and entitled "How to Write a Constitutional ‘Revenge Porn’ Law."

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