An ACLU Lawyer's Free-Speech Argument Against Federal Revenge Porn Laws

The only consensus in America in 2015: People who post revenge porn are miserable scum. Yet how to deal with them isn’t so clear. Twenty-five states have legislation to punish nonconsensual porn distribution, but the laws tilt wildly from place to place, which is why so many people are encouraging Congress to pass a federal law to criminalize the posting of explicit images online without the subject’s consent.

On the surface, this seems like a good thing, but one ACLU attorney says such legislation could be a disaster for freedom of speech. Lee Rowland, a senior staff attorney at the ACLU focusing on First Amendment rights, sympathizes with the victims of revenge porn. But she argues that federal legislation would apply to far more people than you might imagine.

“Just passing a law that says it’s illegal to publish a nude image without consent, that’s not going to pass the courts,” Rowland tells Inverse. “The terms are so broad it risks making venerable institutions like libraries and photography collectives into criminals for sharing an images of torture at Abu Ghraib or the child being napalmed in Vietnam. Nobody says privacy issues don’t exist — they absolutely do. But there are many places where public interest outweighs harm done.”

“Revenge porn” — the posting online of consensually given nude pics, typically by a malicious ex — damages its victims reputation and psychological well-being. The term has come to signify, more broadly, anyone finding compromising pictures posted of themselves on the web without approval. Only in recent years have laws caught up with this brand of spite. New Jersey in 2004 became the first state to pass a law targeting purveyors, and dozens more states have followed suit in the past couple of years.

When August recess closes in the U.S. Congress, Jackie Speier, a Democratic Representative from California, is expected to introduce legislation to criminalize distribution of explicit images online without the subject’s consent while a mirror bill is introduced in the Senate. “The fact that the Web is so ubiquitous and knows no state borders would suggest that having a federal law makes a great deal of sense,” she told Government Executive.

Rowland calls this argument constitutionally dicey, unless the law tailored its language to specify that the person who spread the image knew the subject objected, or if the law required you prove that sharing the image was done with malicious intent. Intent is an inherently difficult thing to establish, though maybe less so if the person who posts the image slaps some sleazy captions along with it, as so often seemed to happen on the now-defunct sites of revenge porn magnate Hunter Moore. In February he was sentenced to seven years in prison, though he was tried not under California’s revenge porn law, but for paying an accomplice to hack computers.

“Most advocates don’t want intent because it’s real difficult to prove,” Rowland concedes. “But we don’t have a problem keeping our jails full with a criminal system that routinely requires prosecutors prove intent.” She also argues that plenty of existing laws — federal stalking laws, for one — could already be used to prosecute the creepy little goatsuckers.

There are some states with laws Rowland likes, if not supports fully. Maine’s law, she says, has a narrow intent clause (“I’d still hesitate to promise it’s a constitutional bill.”) and Nevada’s law is “not terrible” even though it defines “harm” too broadly.

“It’s just not obvious to me a criminal law is the right solution,” she says. “Google has de-indexed sites, Facebook and Reddit have put together methods to get things taken down. The FTC has taken action. So there are all kinds of ways at getting at this behavior that don’t require singling out a particular issue for consequences.”