There’s a movement afoot to pass statutes outlawing “revenge porn”—the malicious publication of images of intimate partners. Here’s the proposed state statute, drawn up by Florida law prof Mary Anne Franks:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,

1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.

3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:

1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.

2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

The question arises: Will such statutes pass Constitutional muster?

[Tl;dr: Not under current Supreme Court precedent. But there’s a lot more to it, so read it.]

A little history

In Dun & Bradstreet v. Greenmoss Builders the Supreme Court in 1985 addressed the question of whether a private individual1 had to show actual malice2 to collect presumed and punitive damages3 for defamatory statements not involving matters of public concern.

Before that, in Gertz v. Welch the Court had held in 1974 that a private person suing for defamation must, at least if the defamatory statements involved matters of public concern, show actual malice in order to recover presumptive and punitive damages.4 The Court had left open the question of whether the same rule applied when the defamatory statements involved matters of private concern. It was that open question that the Court addressed in Dun & Bradstreet. The Court, noting that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection,” balanced the State’s interest in awarding presumed and punitive damages to a defamed person against the “incidental effect these remedies may have on speech of significantly less constitutional interest,” and concluded that the balance between speech not of public interest and the State’s interest in providing remedies for defamation favored allowing presumed and punitive damages without proof of actual malice where the subject of the defamation was not a matter of public concern.

That’s all by way of introduction to differing treatment of matters of “public concern” and private matters in the Supreme Court’s First Amendment jurisprudence. It has come into play only in civil cases, where the Court has balanced the good of the speech against the State’s interest.

There is also a line of Supreme Court cases (for example, 1983’s Connick v. Myers) in which public employees’ speech on matters of public concern was distinguished from public employees’ speech on matters of private concern, so that public employers could fire employees only for speech not involving matters of public concern. In these cases the Court recognized that “the State’s interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” In other words, those cases are a whole different thing than either the State’s providing civil remedies for speech torts or the State’s punishing speech crimes.

The U.S. Supreme Court has never applied a balancing test to statutes criminalizing speech. In 2010 in U.S. v. Stevens the Court considered the federal statute forbidding “crush videos”—videos showing the intentional illegal torture and killing of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government asked the Court to apply a balancing test to this statute, and find it constitutional. The court responded:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”

In other words, “No.” The Court will not apply a balancing test to decide whether a statute criminalizing speech passes First Amendment muster. The Court listed categories of speech historically and traditionally unprotected by the First Amendment—obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—and, conceding that “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law[,]” declined to find crush videos in such an unprotected category.

Back to Ms. Franks’s proposed statute

Ms. Franks’s proposed anti-revenge-porn criminal statute is a content-based speech restriction: it criminalizes disclosure of a photograph of a person having sex, but not disclosure of (for example) a photograph of a person writing a blog.5 Content-based restrictions on speech are presumptively invalid, and the State has the burden of showing that they meet strict scrutiny. So the best way to answer the question of whether such statutes are constitutional is to address the best arguments their proponents make in favor of their constitutionality.

Danielle Citron

Here’s law prof Danielle Citron, arguing that Franks’s proposed anti-revenge-porn statute is constitutional:

The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous.

The specific “matters of purely private significance” language is found in only one Supreme Court Case: Snyder v. Phelps. In that civil case,6 the language is mere dicta,7 not part of the holding in the case. As we have seen, though, the Court has held the distinction between public and private concerns important only in civil cases; that distinction has never come into play in the Supreme Court’s consideration of a statute criminalizing speech.

Stevens would have been the perfect opportunity for the Court to hold that First Amendment rules are different for statutes criminalizing speech on matters of no public concern. The illegal torture of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value” not only is not a matter of public concern (the videos are created for “persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting”), but it has negative public concern—that is, the public has an interest in the quashing of illegal torture of animals, to which the crush videos are arguably integral.

So when Citron says, “The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous,” she is attempting to mislead the reader.8

Likewise Citron’s assertion that “Speech constituting privacy invasions on purely private matters can be criminalized consistent with the First Amendment’s guarantees.” The Supreme Court has never come anywhere close to such a holding; the only cases that Citron cites in connection with that assertion are civil cases.

“In cases involving private individuals whose sexually explicit images are published without their consent,” writes Citron, “it’s easy to [sic] why the public has no legitimate interest in viewing them.” What’s plain to Citron may not be plain to all. Many people plainly see why the public has no legitimate interest in viewing any sexually explicit images. Yet most sexually explicit interests (short of the obscene) are protected by the First Amendment. The permissible content of speech is not determined by the Church, nor by feminist legal theorists, nor by the majority of voters. To some people, nonconsensual images may have artistic value.

A similar shot at bamboozlement is Franks’s assertion that “The First Amend­ment doesn’t pro­tect threats, obscen­ity, child pornog­ra­phy, and a very long list of other things.” I said it here, but it bears repetition: In her work­ing paper on the sub­ject (PDF), Franks lists the cat­e­gories of speech that she thinks are unpro­tected: “stalk­ing, harass­ment, true threats, child pornog­ra­phy, incite­ment, obscen­ity, fight­ing words, libel, fraud, expres­sion directly related to crim­i­nal con­duct, or dis­crim­i­na­tion.” For this she cites Stevens. Stevens men­tions “obscenity…defamation…fraud…incitement…and speech inte­gral to crim­i­nal con­duct” in its enumeration of unprotected categories of speech. Stevens does not men­tion “harass­ment,” nor does it men­tion dis­crim­i­na­tion in the con­text of unpro­tected speech; fortunately for Franks, who substitutes anti-male ad hominems9 for cogent argument, much dis­crim­i­na­tory speech is clearly pro­tected.

Here are Franks’s five best arguments (from her “working paper”) for the constitutionality of her proposed statute:

Franks’s First Argument

1. The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different.

There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”

Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.

“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.

Franks’s Second Argument

2. The non-consensual disclosure of sexually graphic images is a matter of purely private concern, which the Supreme Court has held does not warrant the robust protection afforded to expression of matters of public concern. The Supreme Court has “long recognized that not all speech is of equal First Amendment importance. It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’ … In contrast, speech on matters of purely private concern is of less First Amendment concern.” While some matters of private concern may receive First Amendment protection, there must be some legitimate interest in the consumption of such images for this to be the case. There is no such legitimate interest in disclosing or consuming sexually explicit images without the subjects’ consent. Prohibiting the non-consensual disclosure of sexually graphic images of individuals poses “no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press.”

I dealt with the “purely private concern” argument above. The quote in Franks’s argument is from Dun & Bradstreet. As discussed above, this is not true in any way meaningful to the discussion of a statute criminalizing revenge porn.

The State doesn’t get to criminalize speech that it thinks is not legitimate. Stevens, again:

The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

The proposed private/public interest distinction would be a dangerous one. As the Supreme Court wrote in 2002 in Ashcroft v. Free Speech Coalition, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

Franks’s Third Argument

3. Sexually intimate images of individuals disclosed without consent belongs to the category of “obscenity,” which the Supreme Court has determined does not receive First Amendment protection. In Miller v. California, the Court set out the following guidelines for determining whether material is obscene: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest…; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Supreme Court provided two “plain examples” of “sexual conduct” that could be regulated: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Disclosing pictures and videos that expose an individual’s genitals or reveal an individual engaging in a sexual act without that individual’s consent easily qualifies as a “patently offensive representation” of sexual conduct. Such material moreover offers no “serious literary, artistic, political, or scientific value.”

Where Franks’s second argument was frightening, this one is risible. The rules for obscenity apply to “a work” or “material,” not to “a disclosure” or “a publication.” If the material that the complainant gave the defendant didn’t depict or describe sexual conduct in a way that would have been offensive to a given community when she gave it to him, it doesn’t magically do so when he republishes it.10

In addition, Franks stamps her foot over value. A photo republished without its subject’s consent may well have artistic value. Indeed, the nonconsensual nature of the publication may imbue an image with artistic value that it otherwise wouldn’t have, just as an objet trouvé has artistic value that was unapparent to its discarder.

Franks’s Fourth Argument

4. The “publication of private facts” tort is widely accepted by the majority of courts to comply with the First Amendment, although the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record. According to the Restatement (Second) of Torts, “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” In New York Times v. Sullivan, the Court observed that criminal statutes afford more safeguards to defendants than tort actions, suggesting that criminal regulation of conduct raises fewer First Amendment issues than tort actions. If so, then a carefully-crafted criminal statute prohibiting the publication of private facts—including the non-consensual publication of sexually intimate images—should pass constitutional muster.

This argument is at least a bit interesting. But “the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record” is misleading—the Supreme Court has yet to rule explicitly or implicitly on the constitutionality of this tort.11

A tort12 is not a crime, and the suggestion that “criminal regulation of conduct raises fewer First Amendment issues than tort actions” does not match what we observe in the Supreme Court’s First Amendment jurisprudence: as we saw in considering Dun & Bradstreet and the public / private concern distinction, the Court is willing to cut the State slack when it is providing citizens with redress that it is not willing to cut the State when it is putting citizens in prison.

Franks’s Fifth Argument

5. Because the non-consensual disclosure of sexually intimate images is a practice disproportionately targeted at women and girls, it is a form of discrimination that produces harmful secondary effects and as such is not protected by the First Amendment. The First Amendment does not protect discriminatory conduct, and regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment. Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of “expression,” have been upheld by the Supreme Court. Title II and Title VII of the Civil Rights Act of 1964, along with Title IX of the Education Amendments of 1972, all allow for the regulation of certain forms of speech and expression when they violate fundamental principles of equality and non-discrimination. Apart from the harm that non-consensual pornography inflicts on individual victims, it inflicts discriminatory harms on society as a whole. Like rape, domestic violence, and sexual harassment (i.e., abuses directed primarily at women and girls) non-consensual pornography reinforces the message that women’s bodies belong to men, and that the terms of women’s participation in any sphere of life are to be determined by their willingness to endure sexual subordination and humiliation. Nonconsensual pornography causes women to lose jobs, leave school, change their names, and fear for their physical safety, driving women out of public spaces and out of public discourse. Combating this form of sex discrimination is not only consistent with longstanding First Amendment principles, but comports with equally important Fourteenth Amendment equal protection principles.

I agree with Franks, generally, with regard to the harms inflicted on women (more than on men) and society by revenge porn.13 But that isn’t a legal argument.

The weakness in Franks’s legal argument that the harms of revenge porn trump the First Amendment is in two excerpts from R.A.V. v. City of St. Paul, quoted in part by Franks in her footnote supporting her assertions that “regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment,”14 and “Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of ‘expression,’ have been upheld by the Supreme Court”:

Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is justified without reference to the content of the speech,…. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

and

[S]ince words can in some circumstances violate laws directed not against speech, but against conduct…a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech … Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.

In the case of Franks’s proposed revenge-porn statute, unlike in the hypothetical situations discussed in these passages from R.A.V.,15 the conduct is targeted on the basis of its expressive content. In other words, R.A.V. is in the dicta explicitly not talking about content-based restrictions on speech such as Franks’s proposed statute.

The RAV court notes, more germanely:

We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.

The holding of R.A.V. is directly contrary to the position that Franks takes: St. Paul’s ordinance, which prohibited fighting words that “insult, or provoke violence, on the basis of race, color, creed, religion or gender” was struck down by the Supreme Court because “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” In other words, if the State is going to prohibit unprotected fighting words, it cannot prohibit some fighting words but not others based on their content.

“The point of the First Amendment,” wrote the Court in R.A.V., “is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”

Ultimately, even in the terms she chooses Franks’s discrimination argument is a dishonest one. “Regulations that are predominantly concerned with harmful secondary effects,” she writes, “rather than the expressive content of particular conduct do not violate the First Amendment.” While Franks may be predominantly concerned with the harmful secondary effects of the conduct, her proposed statute is predominantly concerned with the expressive content of the speech. I suggest that she try her hand at drafting a non-content based statute dealing with the harmful secondary effects of revenge porn.

Volokh

Franks quotes Eugene Volokh in support of the constitutionality of her proposed statute:

I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts.

Volokh, unlike Franks and Citron a First Amendment scholar, is not actually endorsing Franks’s proposed statute as a “suitably clear and narrow statute.” In the same post he notes Stevens‘s strong statement against expansion of categories of unprotected speech, and writes:

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

It may be true: the Court could rewrite the obscenity exception to cover not only what is today recognized as obscenity—works that appeal to the prurient interest; depict or describe, in a patently offensive way, sexual conduct; and lack serious literary, artistic, political, or scientific value—but also mere nudity, even if it is not patently offensive and does have serious artistic value. If it did that, then revenge porn could be obscene. But this amounts to speculative legal fiction. It could happen, but it is not, I think, likely.

Still, while it’s not what I see in the tea leaves of Stevens,16 it may be that the Supreme Court will some day recognize a category of unprotected speech including revenge porn.17 Until then, though, any lower court considering the issue will be constrained by Supreme Court precedent to find such a statute unconstitutional.