Revenge Porn in the Shadow of the First Amendment

Abstract

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim's autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

Keywords: revenge porn, sex offense, nonconsensual pornography, privacy, criminal law, gender, freedom of speech, first amendment

JEL Classification: K14, K19