Revenge Porn Is Bad. Criminalizing It Is Worse

“Free speech is important, but…” Oh no. Here we go again.

This time, the issue is the criminalization of revenge porn. Much of the media narrative characterizes revenge porn as a new, runaway technological scourge too disruptive to fall under any existing law, but that is simply untrue. A number of legal remedies against both vengeful exes and website operators already exist: civil tort actions, DMCA takedowns, criminal statutes against extortion, and even a federal law that could give the FBI authority to go after the sites.

Discussions of internet law seem like an endless cycle of “but what about the women/children?” pitted against “but what about my free speech?” We’re back on the merry-go-round again with the recent furor over revenge porn -- the unconsented-to public distribution of nude photos or videos, usually by a significant other (often male) who intends to humiliate or harass their ex-partner (often female).

The exploitation of women and children has always been the Trojan horse of internet regulation, from the now old-and-venerable Communications Decency Act of 1996, to more recent attempts like the ridiculous and ineffectual California ballot initiative Proposition 35 (which attempted to address human trafficking by, among other things, requiring registered sex offenders to disclose their internet handles to the authorities). At each turn, such efforts have been confronted with the inconvenient existence of the First Amendment.

Although First Amendment issues are certainly present with respect to revenge porn, it’s hardly the most compelling reason why we should reject the push to criminalize it. Many of the discussions of revenge porn -- including the exchange between Amanda Marcotte and Cathy Reisenwitz in Talking Points Memo -- have focused on free speech, forcing us to consider a false dichotomy between speech and gendered harassment.

A haze of uncertainty surrounds the definition of revenge porn, as Reisenwitz points out. An overbroad definition of revenge porn could net a reporter publishing screencaps of Anthony Weiner’s more infamous tweets. Although we have in our minds the perfect-paradigm case of a sympathetic victim -- a nice girl with a penchant for selfies -- and an unsympathetic perpetrator -- a spurned, vindictive ex-boyfriend with a blatant streak of misogyny -- the web of liability becomes nebulous when we think about cases that fall outside this paradigm. (And things get more problematic when we think about websites and website operators beyond the horrifying IsAnyoneUp.com and the entirely unlikable Hunter Moore.)

Dismissing such concerns, Marcotte argues that giving up tabloid reporting for the sake of revenge porn victims is fair:

Knowing that [Anthony] Weiner's dick pics are out there but being unable to view them myself seems like a fair trade for a world where men are more limited in the weapons they can use to stalk, abuse, and control women.

...But the sacred constitutional freedom to snark about Anthony Weiner is hardly the point. The point is that a new criminal statute paves another way to put a human life on hold and a human body in prison -- and yes, a paparazzo still counts as human.

There are unintended consequences to overbroad laws, and failing to take that into consideration when advocating for increased criminal liability is irresponsible.

The problem is further exacerbated by how the internet works. Very little on the web exists in isolation from the rest: content is regularly copied, mimicked, modified, and linked to. Is linking to something illegal in itself illegal? (Sometimes it is, sometimes it isn’t). An earlier iteration of the California revenge porn bill would have found a blogger who analyzes legal developments in revenge porn guilty of a misdemeanor for linking to the very sites he was analyzing.

While it seems indisputable that those who blog about Hunter Moore should not be subject to criminal liability, what about someone who submits a link to a link aggregator like Reddit, Hacker News, or Slashdot? And what about the link aggregator itself? This tension is at the heart of internet law. Indeed, section 230 of Communications Decency Act, a cornerstone of internet law, provides a shield for the speech of online intermediaries -- even that which is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Despite CDA 230, the distributors of revenge porn and the websites that host the pictures are still subject to a number of legal liabilities, both civil and criminal:

• A victim can go after the initial vengeful discloser under a tort theory of public disclosure of private information and even the intentional infliction of emotional distress.
• A victim who personally took the photographs holds copyright in them and can have them removed from a website through the Digital Millennium Copyright Act.
• Porn websites – whether hosting voluntary or involuntary porn -- are subject to more laws than just CDA 230; conceivably, the FBI could go after some revenge porn sites under 18 U.S.C. 2257 for not keeping records on the subjects of their photos.
• Finally, websites that offer to take down photos in return for payment are clearly in the business of extortion, which, once again, is already illegal.

Framing a new criminal law as a necessity is disingenuous: many of the most egregious revenge porn websites have now shut down, and a number of civil suits (some based on causes of action mentioned above) have been undertaken against those involved.

In light of these various recourses through existing laws, what does the push to criminalize revenge porn actually achieve?

There is something to be said for the dubious pleasure of retributive justice. But will that tangibly help the victims? Whatever deterrent effect that criminalization could generate -- such as discouraging future postings of revenge porn -- is likely to be redundant given the civil litigation already taking place. More’s the pity: this moment of media attention on the stalking, harassment, and employment problems suffered by victims could have been used to legislate against exactly that. As Marcotte herself points out, revenge porn is often just another form of domestic violence or sexual harassment.

The problem of revenge porn is embedded within a larger context of violence against women and the stigmatization of the naked body, which means the issue can be tackled from many other directions. Why look to regulating the internet when restraining orders cannot be enforced, when domestic violence victims are hampered in initiating civil actions against abusers, when employers can fire their employees for being sexualized on the internet? Our efforts would be better spent seeking legislation to remedy the suffering that victims actually experience.

Criminalizing revenge porn solves one problem while potentially generating many more. An overbroad criminal law is a threat to the public, 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. But an overly narrow law -- like the final version of the California revenge porn law, which does not cover selfies sent to the vengeful ex or liability for website operators -- is little more than lip service to the harm suffered by victims.

We do not need to choose between the internet and women, or between free speech and feminism. These are false and unnecessary dichotomies. Refusing to criminalize revenge porn would not make us misogynists. It would instead make us prudent.

Editor: Sonal Chokshi @smc90