Freedom for the Porn She Hates

While breaking up is never easy, the Internet has made it down right dangerous thanks to the ubiquitous spread of revenge porn websites that host sexually explicit photos and videos of others submitted without the consent of the pictured individual. These images–usually self-taken photos shared in confidence with a former partner–have been termed revenge porn because the photos are often submitted by the former partner after the relationship sours. However, in some cases, these images have been obtained through computer hacking, rather than an act of revenge by a vindictive ex-lover.

However, regardless of whether the images’ origins are the work of a disgruntled partner or a random hacker, the material is often submitted with an intent to humiliate or harass the subject of the images with many of these websites encouraging a revenge porn victim’s personal identifying information, such as phone numbers, addresses, and links to his or her Facebook profile, to be posted alongside the nude photos. Persons that have fallen prey to revenge porn have been shamed in public, terminated by employers who found their pictures online, and suffered immeasurable psychological harm stemming from having to walk through life unsure of whether the person to their left or right has seen them naked. The slut-shaming and constant bullying has even led some victims to commit suicide.

Yet, despite the devastating effects afflicted by revenge porn, existing tort theories like invasion of privacy5 and harassment6 generally do not apply to the persons uploading the content, and, as I have written, 230 of the Communication Decency Act shields websites from liability arising from user-generated content, effectively immunizing the entire operation of revenge porn websites, absent other criminal conduct7. Indeed, the failure of existing laws to prevent the harm caused by revenge porn has led a number of state legislatures to pass laws specifically criminalizing the act of revenge porn.

But if you think that the criminalization of revenge porn is a black-and-white issue, then think again because bills introduced to outlaw such conduct have erupted into debates about the ethics of criminalization and the U.S. Constitution. Believing that any harm victims experience comes as a consequence of their own poor decisions, many opponents to revenge porn legislation argue that the law should not be allowed to throw people in jail for sharing what the victims voluntarily gave to them. And an even large obstacle to passing revenge porn legislation is presented by those opponents who say that these laws violate their their First Amendment freedom of speech.

So, are revenge porn victims out of luck?

Domestic Violence, Hacking, & Blaming the Victim

The first common ground for opposition to the criminalization is rooted in a belief system that finds the laws unnecessary because revenge porn victims appear on these websites as a result of their own actions. That is, these opponents assert that any harm suffered by a person exposed on these websites is a result of these person’s own irresponsible sharing of illicit material.

Framing the question as why society should enact laws to protect people from themselves, this repugnant line of reasoning is yet another manifestation of a problem commonly faced in the larger context of domestic violence in which a “blame the victim” mentality disturbingly manages to still pervade people’s attitudes because, in their minds, victims were “asking for it.” Yet, just as a woman who dresses or acts provocatively never asked to be sexually assaulted, victims of revenge porn likewise did not ask for their photos to be shared with the public. The situation was quite the opposite: the photos were shared with a lover, in confidence, and with a mutual expectation that they would remain private.

And do not mistake my saying this as a means to abdicate revenge porn victims of any responsibility because their experience exemplifies the valuable lesson of the Internet age: watch what you share.

Still, however, I have grown weary of people using another’s “failure” to watch what they share as a basis to exonerate the real culprit in these affairs. A law criminalizing revenge porn is not a law that targets purely self-inflicted harms, but rather a measure to deter harms committed on others, and as such it should not be classified as a “nanny state” law in the same class as New York’s attempt to ban soda. While there are undoubtedly situations of negligent sending of photos to a person where no such expectation of privacy existed, those are exceptional cases that should not dilute the pleas for help by revenge porn victims who have had their lives upended by people they formerly trusted.

Finally, it is critical to note that persons finding the victims at fault also overlook the glaring fact that pictures posted to revenge porn websites are also commonly uploaded by persons who obtained access to the material through hacking the devices of others. Take the case of victim Hollie Toups, who originally accused an ex-boyfriend of uploading her nude photos to the website, Texxxan.com, but later realized he was not the culprit because the website began publishing other undistributed photos that she had taken to track her workout progress long after their breakup.

Thus, while “revenge porn” has been the hot term attracting this issue attention, those that believe the laws to be an unnecessary protection of people from themselves need to understand that the issue of revenge porn is actually embedded within the larger problem of involuntary pornography, where the defining feature is not the photo’s source, but the lack of consent to its distribution.

The First Amendment and Revenge Porn

A much more powerful and legitimate obstacle to criminalization of revenge porn derives not from a misogynistic deprecation of the victims, but rather from a prudent focus on the First Amendment. Colloquially referred to as the “freedom for the thought that we hate,” it has been argued that the First Amendment guarantee to freedom of speech extends to revenge porn because the posting of otherwise lawful speech or images may not be censored by the government merely because the material is offensive or emotionally distressing.

While it may seem hard to believe that courts would find revenge porn laws to be an unconstitutional restriction on speech, the Supreme Court has struck down laws seeking to prohibit other similarly repulsive forms of speech. Only four years have passed since the Supreme Court, in United States v. Stevens,8 found that a law prohibiting the sale of “crush videos”—a disturbing sexual fetish for watching small animals like kittens and hamsters crushed to death by women wearing heels—to be invalid under the First Amendment. Thus, if cruelty to animals—a cause that most people can seemingly get behind––-is protected, how can the distribution of photos that were both freely given and received by others not be protected?

Well, sit right there, and let me tell you.

To begin with, understanding the Stevens decisions requires more than just knowledge of its outcome because its final holding reflected less on the Court’s finding value in crush films and more on its unrest with how the law was drafted. Specifically, the Court found that the law’s language that prohibited “selling depictions of animal cruelty” was overbroad because the statute defined “animal cruelty” as including the wounding or killing of animals—a definition with strokes so broad that it could be used to criminalize such protected speech as the selling of hunting magazines or videos.

Echoing these words, the principal First Amendment concern cited by opponents to revenge porn legislation is that revenge porn laws will chill other protected speech because it is difficult to even define and identify revenge porn.

And it is true that an overbroad revenge porn law runs the risk of being struck down by a court for violating the First Amendment, or even worse, becomes the basis of questionable convictions and imprisonments. In fact, an earlier iteration of California’s revenge porn law demonstrates the gravity of these concerns: Making it a crime for any re-distribution of revenge porn content, California’s original draft of its revenge porn law could have criminalized any person writing on the topic, including me right now.

However, still, these arguments are not exclusive to the context of revenge porn. A prudent lawmaker must always consider these concerns when enacting a new criminal law because any new law invariably carries with it the potential of unintended consequences from the law being too broad or too vague. So just because a revenge porn statute will also inevitably be accompanied with these risks does not mean that the legislature should avoid attempting to address this scourge on our society. Rather, the discussion and enactment of these statutes can proceed with an awareness of the potential pitfalls of the law, and legislators can do their best to fashion the law in an manner that is broad enough to protect victims, but narrow enough to ensure protected speech is not also ensnared.

Because as it stands now, the primary effect of these arguments has been to water down the legislation that is signed into law, creating overly narrow laws that do little more than pay lip service to the harm suffered by victims. For example, the formerly overbroad California revenge porn law is now being rightfully criticized for a glaring loophole in its application: it only applies in situations where the poster of the revenge porn was also the photographer, and it therefore does not cover self-taken photos that were shared with a later spiteful lover. According to a recent survey by the Cyber Civil Rights Initiative, up to 80% of revenge porn victims had taken the photos themselves, meaning that the vast majority of revenge porn cases would not even qualify under this law. Additionally, in cases that the law does apply, its enforcement may be problematic because the sharing of the photos is only punishable if the perpetrator shared them to “harass and annoy” and with an “intent to cause serious emotional distress.” That could potentially exempt from the law persons who post these photos to earn a buck or brag to their friends.

An Issue of Priority for the Internet Age

An act that constitutes either a new form of domestic violence, an additional method of cyberbullying, or both, revenge porn websites have created yet another class of victims that the law, as commonly interpreted and applied, has been unable to protect. While current laws are a step in the right direction, opposition to their enactment has limited their application to such an extent as to turn these laws’ proponents into opponents. However, baby steps are better than no steps towards providing society a mechanism to defend itself from this new form of reputational harm.


  1. Any cause of action for invasion of privacy entirely evaporates if the photos were voluntarily shared with the person posting them online.

  2. Modern standards for harassment generally require the perpetrator to undertake a persistent course of conduct, which a single act of posting nude photos online does not satisfy.

  3. Unsurprisingly, the people operating these websites have also partaken in other crimes associated with their websites. Hunter Moore (IsAnyoneUp.com) is currently being prosecuted for conpsiring to hack the computers of others to gain access to nude photos, and Kevin Bolleart (Texxxan.com) is charged with extortion for running a companion website that allowed victims to pay money to take their nude pictures down from his revenge porn website.

  4. 559 U.S. 460 (2010).

  5. Any cause of action for invasion of privacy entirely evaporates if the photos were voluntarily shared with the person posting them online.

  6. Modern standards for harassment generally require the perpetrator to undertake a persistent course of conduct, which a single act of posting nude photos online does not satisfy.

  7. Unsurprisingly, the people operating these websites have also partaken in other crimes associated with their websites. Hunter Moore (IsAnyoneUp.com) is currently being prosecuted for conpsiring to hack the computers of others to gain access to nude photos, and Kevin Bolleart (Texxxan.com) is charged with extortion for running a companion website that allowed victims to pay money to take their nude pictures down from his revenge porn website.

  8. 559 U.S. 460 (2010).

AJ Afkari | techlawgic

A.J. Afkari is a Los Angeles attorney who specializes in legal matters related to the Internet, technology, and all things intertwined. He received his B.A. from UCLA, his J.D. from USC, and his A.J. from his mother.

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