Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.
Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review.
A quick read of the First Amendment to the U.S. Constitution appears to prohibit any effort by government to censor or punish what we say. “Congress shall make no law . . . abridging the freedom of speech, or of the press.” But rather than absolute prohibition on speech, the First Amendment has been interpreted as an instruction to treat rules limiting speech with a high level of suspicion. Courts err on the side of caution before regulating speech because free expression is crucial to the discovery of truth, our ability to govern ourselves, and human development, among other values. As the Court has declared, our society has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” A bedrock principle underlying the First Amendment is that government cannot censor the expression of an idea because society finds the idea itself offensive or distasteful.
Ordinarily, government regulation of the content of speech—what speech is about—is permissible only in a narrow set of circumstances. Content regulations, such as forbidding the public from disclosing classified government secrets or banning anti-abortion protests, have to serve a compelling interest that cannot be promoted through less restrictive means. Strict scrutiny review, as it is called, is difficult to satisfy because we distrust government to pick winners and losers in the realm of ideas. Some hateful and deeply offensive words thus enjoy presumptive constitutional protection. The idea is that counter speech can respond to speech we do not like. As the Court instructs, our right and civic duty is to engage in “open, dynamic, and rational discourse.”
Nonetheless, current case law still holds that not all forms of speech are worthy of being protected with strict scrutiny. Certain categories of “low-value speech” can be regulated due to their propensity to bring about serious harms and only slight contributions to First Amendment values. They include true threats, speech integral to criminal conduct, defamation, obscenity, and imminent and likely incitement of violence. The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous.
Speech constituting privacy invasions on purely private matters can be criminalized consistent with the First Amendment’s guarantees. 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. Carefully crafted criminal statutes prohibiting the non-consensual publication of sexually intimate images not involving matters on which the public has legitimate concerns can pass constitutional muster.
The Court’s recent jurisprudence on intentional infliction of emotional distress is instructive. The Supreme Court addressed the First Amendment’s limits of intentional infliction of emotional distress claims in a case involving a televangelist parodied in an adult magazine. In 1983, Reverend Jerry Falwell was a prominent advocate for “moral values” when publisher Larry Flynt ran a spoof in his magazine Hustler suggesting that Falwell lost his virginity in a drunken encounter with his mother in an outhouse. Falwell sued the magazine for defamation, invasion of privacy, and intentional infliction of emotional distress. Although the lower-court jury rejected the defamation claim and the court directed a verdict against Falwell on the privacy claim, it awarded him damages for his emotional distress.
On appeal, a unanimous Supreme Court reversed the judgment, finding that Falwell’s public stature altered the constitutional calculus for his intentional infliction of emotional distress claim. Rather than finding the tort unconstitutional, the Court limited a public figure’s ability to recover for emotional distress to falsehoods made with actual malice. This standard would ensure that the First Amendment’s limits on public-figure defamation could not be evaded by recasting grievances as emotional distress claims. The Court held that the depiction of Falwell amounted to a parody that could not be understood as stating actual falsehoods about Falwell’s relationship with his mother. The Court emphasized the importance of providing breathing room for political and cultural satire that often make their point by exploiting a public figure’s embarrassing decisions or unfortunate physical traits. For the Court, protecting parodies of public persons was indispensible to our political discourse.
Fast forward nearly thirty years for the Court’s next review of emotional distress damages in a case involving another religious leader engaged in the culture wars. Over the past two decades, Pastor Fred Phelps and congregants in the Westboro Baptist Church have picketed the funerals of more than 600 fallen soldiers with signs suggesting that the soldiers’ deaths are God’s way of punishing the United States for its tolerance of homosexuality. In 2006, Phelps obtained police approval to protest on public land 1,000 feet from the church where the funeral of a Marine killed in Iraq, Matthew Snyder, would be held. The protestors’ signs read, “God Hates the USA,” “America is Doomed,” “God Hates You,” “You’re Going to Hell,” and “Thank God for Dead Soldiers.” A few weeks after the protest, a post on Westboro’s website discussed the picketing of Matthew Snyder’s funeral and claimed that his father, Albert Snyder, taught his son to defy his creator and raised him for the devil. Albert Snyder sued Phelps and members of his church for intentional infliction of emotional distress. The jury award was in the millions.
The Supreme Court overruled the decision in favor of the Westboro Baptist Church. Chief Justice Roberts, writing for the majority, explained that the constitutionality of Snyder’s emotional distress claim depended on whether the funeral protest concerned broad public issues or private matters. The majority began with the longstanding view that central to the First Amendment is speech on public matters, defined as speech whose content, context, and form relate to political, social, or other legitimate concerns of society. As the majority explained, we rigorously protect speech on public matters to prevent the stifling of debate essential to democratic self-governance. In contrast, speech about purely private matters receives less vigorous protection because the threat of liability would not risk chilling the “meaningful exchange of ideas.” The majority pointed to a government employer’s regulation of videos showing an employee engaged in sexual activity. Such regulation was constitutionally permissible because sex videos shed no light on the employer’s operation or functionality, but rather involved purely private matters in which the public lacked a legitimate interest.
As the Chief Justice explained, Snyder’s emotional distress claim transgressed the First Amendment because the protest constituted speech of the highest importance—views on public matters like the political and moral conduct of the United States, homosexuality in the military, and scandals involving the Catholic Church. The protest’s location further convinced the majority that the picketers wanted to engage in a public debate as they protested next to a public street, which is traditionally used and specially protected as a forum of public assembly and debate. The majority rejected Snyder’s argument that the defendants sought to immunize a personal attack on his family by characterizing it as a debate about U.S. policy. The church’s twenty-year history of protesting funerals with the same views and its lack of a preexisting conflict with the Snyder family demonstrated that the protests amounted to speech on public affairs, and not speech concerning a personal, private attack.
The majority ducked the question of whether the church’s Internet post concerned private speech. Although the jury considered the post as evidence supporting Snyder’s emotional distress claim, the majority refused to address it because Snyder did not raise the issue in his papers to the Court. In passing, the majority suggested that the online speech might present a “distinct issue” from the offline picketing. What distinction was the Court referencing? Unlike the protest’s focus on U.S. policy, the Internet post centered on Snyder’s relationship with his son, which is a distinction that might have supported a finding that overall thrust of the online speech related to private matters.
We can only speculate what the Court actually meant, but the sharp distinction between the church’s protest and the non-consensual posting of sexually explicit images is not. That online users can claim a prurient interest in viewing private sexual activity does not transform a sexually implicit image into a matter of legitimate public concern. Much like the sex videos that the majority referred to in Snyder, a sexually explicit image of a private individual involves expression on purely private matters that should receive less rigorous First Amendment protection. In cases involving private individuals whose sexually explicit images are published without their consent, it’s easy to why the public has no legitimate interest in viewing them.
Images involving non-private individuals are arguably different. In countless interviews and in comments to her CoOp interview, Franks has raised this issue as much opposition to anti-revenge porn bills centers on the concern that such laws would criminalize the women who shared Congressman Weiner’s naked photos with the media. To understand Franks’s argument, let’s return to the infamous images of former Congressman Anthony Weiner. Women revealed to the press that Congressman Weiner had sent them sexually explicit photographs of himself via text and Twitter messages. As Franks has discussed with the press and as we argue in our article, under the reasoning in Snyder, the public has a legitimate interest in learning about the sexual indiscretions of governmental representatives. In one case, Weiner sent sexually explicit images to a college student. His decision to send such messages sheds light on the soundness of his judgment. Unlike the typical revenge porn scenario involving private individuals who shared their naked photos or permitted trusted others to take them on the understanding that the photos would remain confidential, this scenario raises important questions about whether explicit material disclosed without consent can be considered a matter of public import or otherwise constitutionally protected.
The second set of naked images that Congressman Weiner shared might have different First Amendment implications (I say this tentatively, and would reader feedback). In 2013, Congressman Weiner announced that he would be running in the New York City mayoral race. A woman, Sydney Leathers, released sexually explicit images of Weiner that he had sent to her while they were having an online affair. To be sure, the fact that Weiner sent such pictures involves a matter that the public has a legitimate interest learning about given that Weiner is a public figure who had promised that he was no longer engaging in these types of extramarital sexual activities. But does the public have a legitimate interest in the pictures themselves, beyond question of proof that the pictures were authentic. In the first scandal, the pictures were proof of a congressman’s conduct vis-à-vis a stranger. In the second scandal, Weiner shared naked photographs with a trusted intimate. The public interest lies in the fact that he was having an extramarital online sexual relationship while running for public office, a fact that could have been easily demonstrated with the numerous text messages exchanged between Weiner and Leathers or with censored versions of the pictures in question. It’s worth, at the least, flagging the distinction between the public’s legitimate interest in knowing about the naked pictures in that part of the Weiner affair and in actually seeing them.
United States v. Cassidy does not undermine the notion that the public lacks a legitimate interest in seeing sexually explicit photographs of private individuals (and perhaps some non-private persons). The Cassidy case, decided by the federal district court in Maryland, involved abusive tweets aimed at a famous Buddhist religious leader, which predominately concerned her religious beliefs and teachings. The court struck down the defendant’s conviction under the federal cyber stalking statute, 18 U.S.C. 2261A(2)(A), because the emotionally distressing course of conduct involved matters of public concern—speech afforded the highest protection. According to the Court, the public has an interest in posts impugning the judgment and decisions of a religious leader. By contrast, society has no legitimate reason to view sexually explicit images of a private person who has not consented to their publication. Those images shed no light on political, cultural, religious, or other ideas important for the public to contemplate.
Might the Supreme Court find that nonconsensual pornography amounts to unprotected obscenity? Professor Eugene Volokh argues that 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 his view, nonconsensual pornography lacks First Amendment value as a historical matter and should be understood as categorically unprotected as obscenity. He noted in a blog post, “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 … [C]ourts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.” Although the Court’s obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity’s long tradition of proscription.
UPDATE: I updated the post to give a shout out to the important work Professor Franks has done in the press and in blog comments to make clear that in cases involving sexually explicit photos shared by a public official with others like Congressman Weiner, the publication of the images would likely constitute a matter of public concern, thus foreclosing prosecutions against the individuals who published or shared those photos without Weiner’s consent.