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.”
[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?
“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:
- Defendant
publicized private information concerning plaintiff;
- That a
reasonable person in plaintiff’s position would consider the publicity
highly offensive;
- 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;
- That
the private information was not of legitimate public concern [or did not
have a substantial connection to a matter of public concern];
- That
plaintiff was harmed; and
- 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.