Should Revenge Porn Be a Federal Crime?

First, for those lucky enough not to know, “revenge porn” is the term used to describe the practice (usually by disgruntled ex-boyfriends) of distributing nude or sexually explicit images of people via the Internet without permission.  Once out there, as we all know, images and videos can end up anywhere, copied and redistributed by anyone; and this includes websites designed specifically to profit from traffic drawn to revenge porn.  In some cases, owners of these sites have even extorted money from victims in exchange for removing their likenesses from these sites.  Nobody writing editorials or legal opinions on the matter defends the practice itself.  We all agree that posting these intimate images without permission and violating that trust is a despicable practice. Where opinions diverge is what to do about it from a legal perspective.

Representative Jackie Speier (D-CA) is the lead sponsor of a bill that would make revenge porn a federal crime in the U.S., and the bill is set to be introduced in the House in coming weeks.  While some states have passed laws prohibiting revenge porn, and other existing laws already criminalize several of the actions required to perpetrate revenge porn (e.g. hacking or stealing data), the rationale for making revenge porn itself a federal crime is apparently Sec. 230 of the Communications Decency Act.  Section 230 provides safe harbors for site owners, who cannot be held liable for the actions of third parties using their sites.  These safe harbors do not apply to liability for federal crimes such as child pornography and copyright infringement; so enacting Speier’s bill would not only provide the grounds for prosecuting the individual perpetrators of revenge porn, but it would provide a legal basis for prosecuting site owners anywhere in the U.S. that host revenge porn.  On the other hand, some concerns have been raised that if Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.

Last April, Mike Masnick at Techdirt wrote a post that dispassionately suggests this bill could undermine safe harbors and foster censorship of legal and sanctioned material.  To quote:

“By spreading liability, you guarantee over-censorship. It’s easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what “revenge porn” is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”

I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess.  But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution?  Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

With regard to criminalizing revenge porn, the results I imagine we want ought to be legislatively achievable without chilling free speech.  We should want to prosecute the individual who initiated the unauthorized distribution, and we’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.  And it is not clear why this narrowly-focused goal must lead to censorship anymore than statutes criminalizing child porn.

The concern Masnick and others appear to be raising is that innocent site owners, fearful of criminal liability, will be motivated to over-censor their own sites through TOS policies, and that will have a chilling effect on speech.  But this seems reactionary, given the very specific nature of the crime.  For instance, one way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse. If the site owner complies with the request, no liability should exist.  At best, victims of revenge porn should have as easy a mechanism as possible for removal of the unauthorized content; at worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this “abuse” of the new law? In such a case, she may be falsely accusing an individual of a crime, which is a serious offense, but not a First Amendment issue.  Regardless, the claimant should have to be the victim herself, so abusing the law to chill speech seems unlikely.

Another factor to consider with proposed criminalization of anything is whether or not the law would act as a deterrent.  Unfortunately, criminal penalties often do not deter criminal behavior; but in this case, I suspect making revenge porn a federal crime would have demonstrative mitigating effect, if, in fact, most of the sources of these images are grumpy ex-boyfriends acting rashly.  Criminals with profit or survival motivations and individuals with various psychoses are not easily deterred by the threat of prosecution, but regular guys just being stupid often are deterred by the law.  And in this regard, criminalizing revenge porn is an important step toward a more enlightened and civilized, digital future. It has become too easy to cause harm to someone by remote control, cloaked in anonymity, and normalizing this behavior is a betrayal of the original goals of the Internet.

Interestingly enough, last month, Google announced and then retracted new policy for its blog-hosting site Blogger that would appear to have censored legal and consensual, sexual content.  Originally meant to take effect on the 23rd of this month, Google stated that sexually explicit material would not be allowed on Blogger unless it provides “public benefit, for example in artistic, educational, documentary, or scientific contexts.” I have to say that’s some rather subjective language coming from a company that repeatedly states it “cannot be responsible for policing the Internet” with regard to criminal or offensive activities. Ever since the Deep Throat case, nothing in the law even presumes to make such distinctions with regard to censorship of explicit material, but Google’s TOS almost did, if it were not for the backlash from thousands of users, particularly those who post sexually explicit articles, photos, and videos. One of these bloggers, Zoe Margolis, even used the words “it breaks the Internet” to describe Google’s proposed policy to make all sex-oriented blogs private rather than public. Was Google motivated to change the Blogger TOS in anticipation of the success of Congresswoman Speier’s proposed bill, or was the company’s sudden priggishness motivated by some other factor?  Margolis suggests a financial incentive — that Google didn’t want to be hosting “free porn,” and this ought to at least give my friends with copyright interests reason to chuckle at that particular hypocrisy.

Regardless, I think the point in this context is that the amount of “censorship” on the web is a dynamic (dare we say evolving?) process that is driven as much by the business interests of the major site owners as by any particular statutes.  While I agree that free speech must always be a foundation of these debates, I believe it is incumbent upon us as a decent society to address the fact that new technologies create new ways for bad actors to rather casually cause great harm to individuals who cannot defend themselves. And this is hardly the first time we’ve had to seek a balance between liberty and justice.  Avoiding criminalization of a behavior like revenge porn for fear of some very improbable forms of censorship sounds like a cop out to me.

© 2015, David Newhoff. All rights reserved.

This entry was posted in Digital Culture, Law & Policy and tagged , , , , . Bookmark the permalink.

14 Responses to Should Revenge Porn Be a Federal Crime?

  1. Sam Flintlock says:

    I definitely think “revenge porn” should be seriously punished. I’m not a free speech absolutist anyway. Too often it’s the internet equivalent of “think of the children”, some kind of abstract principle that supposedly trumps absolutely every other issue.

    I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess. But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution? Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

    I’m not sure it is as simple to define as this though, at least legally. If a woman is sent unsolicited dick pics on a dating site and chooses to publicise them as a means of protest, is that covered? How about the Anthony Wiener case? Would publishing the pictures count as revenge porn?

    Obviously, these are exceptional cases, but I think they still need considering carefully.

    One possibility would be to require a model release form for any public publication of sexually explicit material, even if the motivation is non-commercial. I don’t think that’s necessarily any more of a threat to free speech than the current requirement that all commercial porn sites obtain proof of their model’s ages. Probably with a public interest exception, to cover stuff like the Wiener emails.

    That’s just off the top of my head though. I suspect a legal scholar would be able to see issues with it I haven’t considered.

    • David Newhoff says:

      Thanks, Sam. I think the gray areas cited in your examples might actually be clarified by such a law. In order to criminalize revenge porn, you and Masnick are right that it hast to be defined. And that might be a good thing for everyone, innocent websites included. There needs to be a plaintiff and a defendant, and the core of the plaintiff’s case has to rest on factors that seem fairly easy to define. Like the plaintiff must clearly be the person depicted in the images. The plaintiff has to assert, possibly even prove, that the photos were not intended for distribution and that the defendant distributed with some degree of malicious intent (I’m just winging it here). So, in the “dick pics” case, if none of the men are identified, I think “revenge porn” would be a hard case to make. In Weiner’s case, he was the source of the distribution.

      I think it’s important to distinguish between criminal liability and creating some a variation on safe harbors for innocent site owners. As I indicate in the post, the victim of RP can charge her ex-boyfriend with a federal crime but perhaps her remedy with Twitter is some version of a takedown notice. As long as Twitter complies, they’re in the clear. I fail to see how free speech suffers in this case. Naturally, this shares qualities with the “right to be forgotten,” which applies in Europe but not in the U.S. (yet). But even here, the opportunity for abuse is limited by the fact that RP only pertains to sexually explicit content. There are concerns that applying a “right to be forgotten” gives powerful interests an opportunity to avoid scrutiny by potentially erasing the truth about their activities, but I see no real opportunity for that kind of abuse through criminalizing revenge porn. Anthony Weiner is a good example. I don’t need to see his dick pictures (and hope I never do) in order to get the part of the story that matters to me as a citizen — that this elected official is both sleazy and stupid enough to think he can get away with doing that on social media. What happens to the pictures is his problem; he can’t claim revenge porn because he distributed them. But even if he could take them down, is free speech really affected? I would say no.

  2. Sam Flintlock says:

    We should also note that, with the right to forgotten, some commentators have suggested that Google has been deliberately misinterpreting the law to try and undermine it- http://www.theregister.co.uk/2014/07/04/google_peston_bbc_delisting_not_compliant_w_public_interest_law_says_expert/

    I could certainly see them doing the same if the revenge porn law is passed in the US. So they’d need watching carefully (as always).

    • David Newhoff says:

      I think it’s a given that the Internet industry benefits from a future in which the laws of man don’t apply to cyberspace. Thank you JP Barlow. So, I think we’ll expect to see Google & Co. claim right to be forgotten or revenge porn laws are threats to speech, etc. It’s sorta the same playbook over and over.

  3. AudioNomics says:

    Federal? no. Midevil? sure!
    Just have castration* as a punishment, and watch the problem go away overnight 🙂

    *I’m sure we could find something similarly effective for female offenders..

  4. How about we get to know people before making porn with them. I’ve been sent explicit pictures from new acquaintances before the had even learned my middle name…

    How can you have a legal expectation of trust in an individual you don’t have history with? The answer is stop being stupid.

    • David Newhoff says:

      John, I agree with you that, revenge porn aside, people should be much wiser about what they share and what they don’t in the digital age. I think an entire generation is only now just beginning to get the concept that what they put out there can never be taken back. As a parent, I look at this as basic, like “don’t talk to strangers,” but I don’t think many people have given it that kind of thought. So, I agree with you on a social and cultural level; this post was specifically about the proposed law itself. The two are not exclusive, though. Rape can be and should be a crime, while advising a woman not to walk alone in certain places is good advice. Thanks for commenting.

    • AudioNomics says:

      Not all revenge porn comes in the form you would think. The camera technology is such that there can literally be one in your bathroom or bedroom right now and unless you sweep for bugs daily, you wouldn’t know it was there. Blackmail or just thteats and control over another is more common than you might think.
      I’m saying it doesn’t matter how ‘careful’ you are, this is a problem regardless.

    • K says:

      yeah. all those women who get upskirt shots should just not go outside…

  5. Anonymous says:

    David–
    “revenge porn”

    Why do you keep italicizing ‘revenge porn?’

    “[I]f Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.”

    Well, the intent of the Communications Decency Act, as its name suggests, was to encourage censorship. I don’t know if the authors of section 230 had anything different in mind, but the stated rationale for it was that existing caselaw (the infamous Stratton Oakmont case) held that if an ISP exercised editorial control over a site, it was liable for the material published on that site. (In understanding this fully, know that ‘ISP’ in this context means anyone who provides any service over the Internet. You, David, would be an ISP for the purposes of section 230, if you exercise any control over the posts here, and given the absence of spam, I expect that you do, and therefore, you are.)

    Thus, an ISP that attempted to censor ‘indecent’ material but which failed to censor all of it could, in the absence of section 230, be held liable for letting some of it through, whereas an ISP that did not censor anything at all would not be held liable for letting all of it through. Section 230 was an attempt to remove a disincentive against censorship on the part of ISPs. It also protects ISPs from liability for whatever censorship they do engage in.

    As it turned out, of course, some ISPs don’t want to censor anything, whether for ideological reasons, or because it’s expensive and time consuming, with no commensurate gain. Others want to censor some material, but this is just as likely to be spam or off-topic material, or other non-indecent, yet still-unwanted material. And of course the bulk of the CDA was found unconstitutional, leaving section 230 as the only bit left that anyone really cares about.

    So better to say that it would jeopardize free speech by harming the practice of using Section 230’s immunity to allow for both hands-on and hands-off editorial policies, as ISPs choose to implement.

    “I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is.”

    It is from a legal perspective.

    If you’re trying to ban revenge porn on the basis that it is obscene, this will fail in a number of instances. The mere fact that a photo depicts nudity, or is sexually explicit isn’t enough. You have to get through the Miller test, and that’s fairly difficult.

    Child porn, OTOH, is a sort of sui generis thing. It can be banned even if it is neither obscene nor indecent. But just because there is an exception, that doesn’t mean that any old thing can get a similar exception. The rationales for not protecting child porn are: 1) The extremely compelling interest that the state has in preventing the sexual exploitation of children; and 2) The need for government to stop the sexual abuse of children is in part accomplished by shutting down the market for photographs of it.

    Neither of these quite flies for revenge porn, though. Setting aside underage revenge porn, since it’s already child porn, this bill is only relevant for adult victims. The state has less of a compelling interest in preventing the sexual exploitation of adults than it does of children. Further, while it is certainly pretty bad to have nude or sexually explicit photos sent out without permission, this doesn’t hold a candle to the sexual abuse of children. So I’m not convinced that a sui generis ban on revenge porn is possible.

    See, incidentally, U.S. v. Stevens, an 8-1 decision finding that a law prohibiting ‘crush’ videos (videos in which people are depicted as crushing small animals to death in order to gratify a sexual fetish), was unconstitutional.

    As far as I can tell, the real intent here has something to do with reputational harm. Let’s drop the porn aspect of this for a moment, and approach the general problem from a different angle:

    We criminalize blackmailing not because of the exposure of secrets, but because it’s a form of extortion. Subtract the extortion, and it’s generally protected. If Alice outs Bob, and posts about it on Carol’s website, devoting to outing, should Alice and/or Carol go to jail, or at least face civil liability? Does it depend on the type of outing involved? Sexual preference is a bit serious. What about mere hypocrisy? Perhaps Bob presents himself as being tough, and having grown up on the streets, with a criminal background, as part of an artistic career, but Alice outs him as really having had an idyllic childhood in the suburbs, and as being a perfect, law-abiding citizen.

    I think that stripped down to its bare essentials (no pun intended) revenge porn legislation is little more than traditional libel law, in which truth was not a defense; the harm to reputation was all that it took to break the law, no matter how little-deserved the reputation might have been.

    “[H]ow does one distinguish between an amateur nude shared by permission and one distributed without permission….”

    Plus, permission isn’t binary. Alice might give permission to Bob to distribute it to Carol, but not for Carol to distribute it to Dave. Alice might give permission for it to be posted on one public website but not another. And the permission might be oral or implied, which isn’t so helpful later on in court.

    “Still, it seems as though fears of ‘guaranteed,’ rampant censorship are a bit overwrought….”

    It would be easier to determine whether the fears are justified or not if we had the text of the bill to look at. However, it’s quite easy to see how these fears are justified if all we have to go on is the general idea.

    Suppose you operate a photo sharing website with hundreds of thousands of users, and hundreds of millions of photos. You cannot possibly review all of them prior to posting. And even if you did, you cannot possibly know whether there was permission given to the uploader by the subject. And even if you receive a complaint, you cannot possibly know whether the person complaining is in fact the subject, and did in fact withhold permission. The typical rational response, when faced with liability for something you lack this much control over is to avoid it entirely. This means shutting down your website. (This is basically the same reason that the strict liability standard in copyright infringement is so awful; even when a defendant exercises all due care to avoid infringing, they can still face liability, including at times for the acts of a third party)

    “[W]e’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.”

    Well, a knowledge standard is better — though I don’t see why you assume that that will be the standard in the bill — but still somewhat difficult. It still appears to lack constitutional muster. And it’s underinclusive (by allowing revenge porn to be distributed by site owners who don’t specifically trade in it, but rather carry it along with other material).

    “[O]ne way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse.”

    Oh, I thought that you (and most of the people here) didn’t like the DMCA, because it doesn’t go far enough? Now it’s upheld as a model to follow?

    In any event, problems: 1) How does the site owner know that the claimant is also the victim? Does the victim have to send them a new nude photograph in the same pose, for someone at the ISP to compare? Or are they expected to just take their word for it. I would note that verification of identify has been a longstanding problem with the DMCA. It may as well be avoided here. 2) Related problem, what happens if the ‘solution’ to this by the revenge porn community is to post photos that aren’t particularly identifiable, e.g. with the heads cut off, identifying marks blurred? 3) Overinclusiveness is another constitutional problem: No victim of revenge porn should have the right to order that photos should be taken down which are not of the victim; what happens in cases where the victim is wrong about the identity of the subject of the photograph? What if they were intentionally/knowingly/negligently wrong? This has been an issue with the DMCA too, actually. 4) Related problem, what if the photograph is a cunningly created fiction? Like a computer-generated picture that pretty faithfully represents the person claiming to be the victim. Are they still victimized if the photo was made up (or was of another person made to look like the alleged victim)? 5) The DMCA doesn’t give ISPs no right to refuse. They simply lose the safe harbor for the particular work; the ISP can still mount a defense, and may still win. Why should an ISP automatically become liable for not bowing to a demand made in the absence of any actual due process? 6) Underinclusiveness: you can’t limit this only to ISPs — you have to restrict all forms of redistribution. So what happens when the model for, say, the famous (topless female) statue ‘Spirit of Justice’ at the DOJ headquarters in Washington, DC comes forward and demands that the government demolish the statue? What if no model release can be found? What sort of statute of limitations are we looking at here? Suppose that the agreement between a painter and a model was to keep the painting private — can the model sue if the painter reneges and gives it to a museum, or if he has to sell it to a collector in a bankruptcy proceeding?

    “[W]hether or not the law would act as a deterrent.”

    Regulations affecting businesses sometimes tend to act as a deterrent, because a business owner with an eye toward the bottom line may find it cheaper to heed his lawyer’s advice rather than risk a suit. My experience has led me to believe that the law is rarely a deterrent for anyone else, in almost any circumstance. Civil liability for copyright infringement typically ranges from $750-$150,000 per infringement with little effort by the plaintiff; criminal liability is what, five years and $250,000? Does it stop anyone? Do people not speed? Do they always sort their recycling? Never cheat on their taxes? Do people not rob banks anymore, both due to the serious response the police have toward bank robbery, but also because there’s relatively little money involved for all the trouble? (The take is on average around $5,000; convenience stores are usually under $1,000 and you’re more likely to get shot) Do people not get murdered?

    No, we can say with great confidence that this law will have minimal effect as a deterrent for the people posting the revenge porn, and given the international nature of the Internet, the ease of setting up a site, etc., it will have minimal effect on distribution as well.

    You attribute revenge porn to ex-boyfriends acting rashly — you think that rash behavior will suddenly give way to reason merely because of a law? You think that people acting stupidly will suddenly get smart? Do you know anything of human behavior?

    “I believe it is incumbent upon us as a decent society….”

    David, a decent society wouldn’t need restrictions on free speech, because no one would go beyond the bounds of decency in the first place. If you are proposing limits on speech, it indicates that we’re not all that decent after all. I am reminded of a history class discussing the origins of anti-miscegenation laws in the American South: They didn’t come out of nowhere, they were a response to what people were doing.

    “[A]t worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this ‘abuse of the new law? …. Avoiding criminalization … for fear of … censorship sounds like a cop out to me.”

    No, David. Opposing this law for fear of censorship is actually a very brave act. It’s easy and lazy (and stupid and wrong) to support censoring speech that people find reprehensible, which I think all of us here do. It’s easy to go with the crowd. Defending Larry Flynt is hard. Defending Nazis who want to march in a community full of holocaust survivors is hard. Publishing top secret military documents during a war is hard. It does nothing good for one’s personal life, it typically involves going right up against a massive and well-funded government apparatus which is determined to win, and there’s usually no meaningful monetary reward or even compensation for expenditures. But to stand on principle despite all of this, while hard, is necessary.

    This was apparently your test, and you’ve failed. You can’t rightly claim that while you might disagree with someone’s speech, you would defend their right to say it, because you’ve turned your back on that principle here. Maybe you never believed in free speech from the get-go. But either way, it’s pretty disappointing.

    • AudioNomics says:

      anon “Opposing this law for fear of censorship is actually a very brave act. ”

      Is it? Why don’t you go pat yourself on the back…
      I would think none of your self-congratulatory talk fits unless there is specific language in a proposed bill you disagree with. Everything can’t be a slippery slope before there’s even an incline on a hill.. a parking lot of ideas does not a slope make.
      You spend your days here defending website owners and multinational corporations; what about the victims? They should have no recourse? I have heard (in some circumstances) having this happen to you is akin to being raped, yet you toss the victim aside just as quickly as the person exploiting does..

    • David Newhoff says:

      Anonymous, it is likewise disappointing to see you abandon rational debate for assumptions about my belief in free speech. Please note, my name is on everything I write; and a lot of what I write is unpopular with the same kind of people who like to use the Internet to attack individuals, so spare me the lecture on the courage of free speech.

      As for the problems and deterrents, you’ve glossed over any number of ways in which revenge porn is a unique crime and, therefore, might require a unique set of remedies and limitations. On deterrents, my point is that if the motivation of the sources is weak (like just feeling jilted), that criminalizing RP could have an effect on those making that choice. If the motivation of the hosting site owner is strong (like profit), then criminalization will probably move it offshore like piracy, but that’s still a step in a moral direction in my opinion. Regardless, your point is moot. Rape still happens and can be very hard to prosecute, but we aren’t going to legalize it because then we’d be a society not worthy of high-mided notions like free speech.

      As for wrongful use of this proposed law, it is a stretch and then some to suggest free speech would suffer in the slightest. Even if a false victim wrongfully orders a takedown of a photo from a site, speech itself, including all the petabytes of gibberish flowing throughout cyberspace, will endure. This is not comparable to the government shutting down “offensive” speech, and has nothing to do with why defending Larry Flynt is essential. You are purposely confusing the two because porn is involved, but it doesn’t take a lawyer to see that they are not the same because the subject in a revenge porn image has been, in some way, violated. If Larry Flynt forced rather than contracted his models to pose, he’d be indicted for crimes that have nothing to do with how anyone feels about the substance of the photos themselves.

      We all know speech has withstood landmark tests — Skokie, Deep Throat, Larry Flynt etc. But the Internet is a new thing; perhaps you’ve heard. Everything on it is technically some form of speech — a picture, a video, text, even code — yet some of that speech can cause actual harm in ways we never imagined before the technology made it possible. That you think we cannot even consider addressing these new forms of harm through the law, that our constitution just can’t handle it, is frankly gutless. Any idiot can hurt someone and call it free speech, just like any idiot can defend the need for military-grade weapons because the 2nd Amendment says so. These new forms of harm via the Internet are the tests of our times with regard to speech and boundaries. But you don’t even want to ask the question. And again, unless you’re going to have the guts to put your voice out there and sign your name, don’t come at me with words like “censorship” and think it means anything.

      • Anonymous says:

        AudioNomics–
        “what about the victims? They should have no recourse?”

        In the sense of a general prohibition on revenge porn, yes. If they should have any recourse, it should be of some other nature. (And a number of options present themselves)

        “I have heard (in some circumstances) having this happen to you is akin to being raped”

        I think that grossly trivializes rape.

        The revelation that some people have bodies underneath their clothes is just as surprising as the discovery that they also piss, shit, fart, and burp like everyone else, i.e. not at all. It may be deeply embarrassing and humiliating, but I bet that if you asked a rape victim who suffered less, they wouldn’t say that they did.

        David–
        “Anonymous, it is likewise disappointing to see you abandon rational debate for assumptions about my belief in free speech.”

        I think you fairly clearly stated that you support a ban on revenge porn; If I made an assumption it was that you otherwise support free speech.

        “As for the problems and deterrents, you’ve glossed over any number of ways in which revenge porn is a unique crime and, therefore, might require a unique set of remedies and limitations.”

        It’s not a unique crime, it’s a criminal version of the essentially-dead tort of public disclosure. It’s been on its deathbed for decades because it can’t really be reconciled with the First Amendment. The only reason that a stake hasn’t been put through its heart yet is that plaintiffs rarely bother to raise the issue.

        “On deterrents, my point is that if the motivation of the sources is weak (like just feeling jilted), that criminalizing RP could have an effect on those making that choice.”

        Yes, jilted lovers always think rationally about possible criminal prosecution that might be brought against them down the road. That’s why no jiltor ever has to seek a restraining order against a jiltee; the jiltees know they’d get in trouble for harassment and are deterred into staying away. Likewise, police love getting called in for domestic disturbances because people in (or falling out of) close relationships are always the paragons of rationality.

        “Regardless, your point is moot. Rape still happens and can be very hard to prosecute, but we aren’t going to legalize it because then we’d be a society not worthy of high-mided notions like free speech.”

        As with AudioNomics, I think you’re trivializing rape. I’d also point out that it’s because of high-minded notions that rape can be hard to prosecute; due process for the defendant in a criminal case takes precedence over the desires of the victim.

        “As for wrongful use of this proposed law, it is a stretch and then some to suggest free speech would suffer in the slightest.”

        It almost always happens, actually.

        “That you think we cannot even consider addressing these new forms of harm through the law, that our constitution just can’t handle it, is frankly gutless.”

        We can consider it; People think about bad ideas all the time.

        “And again, unless you’re going to have the guts to put your voice out there and sign your name, don’t come at me with words like “censorship” and think it means anything.”

        What does my name have to do with the merit of my ideas?

      • David Newhoff says:

        Anonymous-

        I didn’t say your ideas can’t have merit without attribution, though anonymity does have limits when it comes to presenting ideas in the real world. What I say is that accusing me of failing the free speech test, particularly while I’m exposed and you are not, is hypocrisy. As stated, I say things on this blog that are unpopular with the kind of people (I suppose they’re people) who seek to silence speech very aggressively with threats etc. via social media. And I do find many contemporary fears of “chilling speech” to be childish, hand-wringing nonsense. This includes ANY view that even sloppy remedies to revenge porn would chill speech. It becomes a technicality and silly. There are lots of incidents that “chill speech” on an individual basis every day. If you don’t think so, try dissing veterans in a biker bar some day. Yet, the right of speech endures. Taking down revenge porn would be an imperceptible drop in the ocean that would not move us one step closer toward chilling speech, not even pornographic speech.

        And on the remedies thing, I think it is likely unreasonable to compare the behavior to men who act more rashly or more violently. The majority of people handle break-ups and don’t do despicable things to their exes (at least I hope that’s true). A small minority act very badly and require restraining orders, etc., as you point out. But I suspect that somewhere in the spectrum are quite a number of people (mostly men), who are narcissistic enough to be unable to get their emotions in check, would normally not do anything to their ex, but now there’s this technology that makes acting out so easy that it seems almost harmless. Half a bottle of tequila and a few swipes of a thumb is all it takes. Do not tell me that the technologies themselves have not changed behaviors and even normalized the ease with which people say and do very nasty things to one another by remote control.

Join the discussion.