Revenge Porn: Protected by the Constitution? 
By: Anne Harrison 
Student Writer for The Journal of Gender, Race & Justice, Volume 18 

Fingers texting on a cellular phone
Ending a romantic relationship on sour note is difficult for both parties, but now imagine that one of the parties post compromising photos of the other on the Internet for all to see. Revenge porn, posting nude photos of one’s former partner on the Internet without his or her consent, often causes a detrimental effect on the victim. The victim may suffer extreme humiliation, and may even be terminated from his or her job.

Legal scholars differ in how to handle revenge porn. Some find that criminalization is not necessary given that victims can already pursue civil suits. Others find that criminalization will serve as a better deterrence than civil action. As advocates push for laws prohibiting the distribution of nude photographs, a legal gray area has emerged based on the dueling freedom of expression contained in the first amendment and the substantive right to privacy. Several states have passed laws criminalizing the nonconsensual posting of nude photographs, including New Jersey penalizing the act as a felony and California making it a misdemeanor to distribute images taken with the understanding that they would remain private. Some of these laws have been challenged on the ground that they unconstitutionally restrict freedom of speech. For example, ACLU filed a federal lawsuit against Arizona’s law, which made it illegal “to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.”

Because the anti-revenge-porn criminal statutes at issue are content-based speech restrictions, the State has the burden of showing they meet strict scrutiny. While content-based speech restrictions are presumptively invalid, legal scholars argue that the Supreme Court has held “where matters of purely private significance are at issue, First Amendment protections are less rigorous.” One scholar on the subject posited that such laws are likely to be upheld because the specific nude pictures involved “have nothing to do with public commentary about society.” There is some support for the notion that the laws will be upheld as cyber-stalking laws have not been found to violate the First Amendment.

Other scholars believe that anti-revenge porn statutes are criminalizing protected expression. They maintain that the “First Amendment is not a guardian of taste.” In its lawsuit against the state of Arizona, the ACLU argues that the Constitution protects speech even when that speech is offense or emotionally distressing. The ACLU goes on to state that the Arizona law is overbroad in that it applies equally to private photographs and images that are “truly newsworthy, artistic, and historical images.”

Thus far several states’ laws have been challenged and the outcomes have been mixed. What has been clear is that the laws must be carefully constructed to avoid trampling on protected first amendment grounds. However, it is not completely out of the question for the Supreme Court to place revenge porn in the zone of no protection as it has done with child pornography and obscenity.