“Revenge Porn” and the First Amendment

by Gerard Emershaw

In California it is now a misdemeanor to put “revenge porn” on the internet. If a person is convicted of posting identifiable naked pictures of another person online without permission, he or she can receive up to six months in jail and a $1,000 fine. According to the law’s sponsor California Senator Anthony Cannella (R): “Until now, there was no tool for law enforcement to protect victims. Too many have had their lives upended because of an action of another that they trusted.”

The law states:

[A]ny person who photographs or records by any means the image of another person without his or her consent who is in a state of full or partial undress in an area in which the person has a reasonable expectation of  privacy, and subsequently distributes the image taken which could cause a reasonable person to suffer serious emotional distress, is guilty of a misdemeanor.

Is this new California criminal law needed, or is it just another example of making everything illegal and making big government even bigger? More importantly, is “revenge porn” protected under the First Amendment?

The First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” However, it is almost universally acknowledged that “the right of free speech is not absolute at all times and under all circumstances.” The Supreme Court has recognized several categories of speech that do not enjoy First Amendment protection. These categories include fighting words, obscenity, child pornography, imminent incitement of illegal activity, threats, solicitations or offers to engage in illegal activity, and libel.

“Revenge porn” clearly does not fall under the category of fighting words, the imminent incitement of illegal activity, threats, or solicitations or offers to engage in illegal activity. One can assume that in any case where a person posts naked pictures of children online that child pornography laws are already in place to deal with that. It is also clear that the new California law is not prohibiting such speech because it is obscene. The vast majority of naked photos posted on the internet are photos of consenting adult models—whether amateur or professional.

The only category of constitutionally unprotected speech that might apply is libel. To libel someone is to publish an untruth about a person which will do harm to that person by tending to make him or her the target of ridicule, hatred, scorn or contempt. If a naked photo that is posted online as a form of “revenge porn” is digitally altered in some manner, then that would constitute an untruth. For example, if a person were to use Photoshop or another similar art program to alter the subject’s anatomy or to create a context in which that subject did not appear, then that would be an untruth. However, an unaltered photograph of a person cannot be said to be an untruth. Therefore, libel would not apply.

This means that there is no prima facie case for forbidding the speech constituted by “revenge porn” under the First Amendment. There are reasons why publishing a photograph may lead to civil actions against the publisher. If the publisher of “revenge porn” publishes the naked photo not only as a means of revenge but also as a means to earn profit—e.g. by publishing the photo on a commercial pornography site—then the publisher has committed the tort of appropriation of a name or likeness. If the “revenge porn” does not technically represent an untruth but does represent something that is misleading, the publisher has committed the tort of false light. The tort of false light exists where a person publishes something about another person with actual malice (if the publisher knew that the published material would portray that person in a false light or with reckless indifference to the truth) which portrays that person in a misleading manner and which is embarrassing to reasonable persons. Again, unless the naked photo somehow portrays the subject in a very misleading manner, there is no cause of action for false light.

Another privacy tort exists under California law. Posting “revenge porn” may very well constitute tortious public disclosure of private facts. A person violates the right of privacy of another under the tort of public disclosure of private facts when:

1. Defendant publicized private information concerning plaintiff;
2. That a reasonable person in plaintiff’s position would consider the publicity highly offensive;
3. That defendant knew, or acted with reckless disregard of the fact, that a reasonable person in plaintiff’s position would consider the publicity highly offensive;
4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of public concern];
5. That plaintiff was harmed; and
6. That defendant’s conduct was a substantial factor in causing plaintiff’s harm.

Given that naked photos of most individuals in California or elsewhere do not express information that is of legitimate public concern, most victims of “revenge porn” have an avenue to redress their grievances in civil court. However, there is a grave danger created by criminalizing even tortious speech. The California “revenge porn” criminal statute was passed because pursuing the matter in civil court was allegedly an “expensive and time consuming option.”

Under the California “revenge porn” law, the naked photo that is published online must have been taken without the subject’s consent. There is already a tort which covers that category as well. Under the tort of intrusion upon seclusion:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

This includes both cases where the one intrudes by merely using his or her senses and cases where the intruder uses electronic devices. This tort does not require publication. Therefore, one who publishes “revenge porn” has technically committed a tort against the subject under the terms of the law prior to his or her publication of the naked photo.

According to Fox News legal analyst Judge Andrew Napolitano: “Criminalizing the distribution of that which was freely given and freely received would be invalidated under the First Amendment. The First Amendment is not the guardian of taste.” Law professor Eugene Volokh, a critic of the both the tort of public disclosure of private facts and of criminalizing offensive speech, disagrees with Judge Napolitano, claiming that the category of naked pictures is narrow enough to survive First Amendment challenges because “courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.”

According to the California “revenge porn” law, only the publishing of naked photos which were taken without the consent of the subject are criminalized. This leaves open the question of whether naked images which were freely given to a person by the subject or which the subject allowed to be photographed for private use only will be criminalized in the future in California. “Sexting” has become widespread among young romantically linked couples, so these kind of cases are likely to become common.

Under an earlier version of the law, all that was required was that the parties had agreed that the published photo would remain private:

This bill would provide that any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress, is guilty of disorderly conduct and subject to that same punishment.

This version was clearly unconstitutional. For example, it would have criminalized instances where the copyright holder of a naked photo published it.

The deeper question remains whether public disclosure of private facts should even be a tort. For defamation—both libel and slander—truth is a total defense. However, this is not the case with public disclosure of private facts. The only defense to public disclosure of private facts is that the information revealed is “general knowledge.” In the typical case of public disclosure of private facts, the natural right to free speech appears to conflict with the natural right to privacy. If both are genuine rights, then such a conflict should be impossible.

Cases in which one intrudes upon the seclusion of another, there is no doubt that a tort has been committed and also typically a crime—e.g. criminal trespass. However, let us consider merely cases where a person publishes private information about another—whether a naked picture or some fact—but where the publisher has not committed an independent crime or tort in acquiring the information. How can speech which involves uttering the truth be illegal? How can such speech be prohibited in light of the First Amendment?

There are cases where one party has a legal duty not to disclose private information about another party. For example, where there is a contract forbidding the revelation of such private information. The violation of a contract is not constitutionally protected. However, there is no such duty in the case of two individuals with no contractual connection.

The two key criteria with the tort of public disclosure of private facts are “highly offensive” and “legitimate public concern.” Notice that much of what is “highly offensive” to a person is also of “legitimate public concern.” For example, it may be “highly offensive” for a person to publish the fact that another person was convicted of indecent exposure, but this is clearly of “legitimate public concern.” If something is true, it may very well be “highly offensive” to a person to have others know it. Nevertheless, it is true. Perhaps if such a fact regards something embarrassing due to a weak moral character, then that person ought to behave more morally. Perhaps if such a fact regards something that society wrongly stigmatizes—e.g. being the victim of a heinous crime such as rape—then the victim ought to stand up proudly against such unjust stigmatization. Perhaps we all have such a duty. Perhaps if such a fact regards something innocuous—e.g. a naked picture—then we as a society should “grow up.” Everyone has a “birthday suit,” after all. Why are we so embarrassed of the flesh in a sickly Puritanical way?

Even in the modern era of the “transparent self” where more Americans flaunt their private lives online, announcing each and every secret on social media, many would wish to keep all of their private details private. However, this is not always possible. While defamation law protects individuals from being damaged by untruths, the Fourth Amendment protects individuals from being unjustly surveilled by the government, and common law torts such as intrusion on seclusion protect individuals from being unjustly surveilled by private actors, nobody should require defense from the truth. The truth is the truth. The truth is neutral and objective. Whether one is offended by something or not is subjective. Whether some fact is of “legitimate public concern” or not is also subjective. Whenever the government—whether in the form of legislators, executive branch officials, judges, or juries—is allowed to decide what the public has a right to know and what it does not, we set forth on a slippery slope. With the exception of a very narrow class of cases involving national security, truth should always be a defense to any criminal action. With the exception of contractual situations, truth should be a defense to any tort concerning speech. Therefore, if a person publishes naked photos of another online but has not committed an independent crime or tort in acquiring the photo, then the natural right to freedom of speech protects such speech.