We've pointed out for a while how the various attempts at creating revenge porn bills will have serious unintended consequences
and raise serious First Amendment issues. This is not to minimize the problems of revenge porn (or to absolve the sick and depraved individuals who put together, submit to or regularly visit such sites). However, it's to point out that pretty much any way you try to legislate such actions as criminal likely will create other problems. For example, I'm sure many of you heard the story recently about US Airways... um... unfortunate pornographic tweet
. It was the story of the internet a few days ago, in which a United Air social media employee did a very
unfortunate cut and paste error, tweeting out a very
graphic image that involved a naked woman and a plane where it... doesn't quite belong (for slightly lighter fare, I highly recommend reading some of the of the funny replies
to that tweet). For what it's worth, US Air has said that it was an honest mistake and it's not even firing the person responsible.
What does any of this have to do with revenge porn? Well, not a whole lot, other than to note, as lawyer Scott Greenfield did, if you retweeted the picture, there's a good chance you violated criminal revenge porn laws
. And that's true -- though it's really specific to one law, right now, which is New Jersey's. California has a revenge porn law too, but it's much more limited and likely wouldn't apply here. New Jersey's law on the other hand includes this
An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any 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 penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
Even if the original photograph was done "consensually" note that you need consent for that specific disclosure
. In other words, if you retweeted that image, you probably violated New Jersey criminal laws.
And, yes, it seems likely that the expected introduction of a federal anti-revenge porn bill will include a similar provision. It's already been stated that law professor Mary Anne Franks is helping draft the legislation, and her draft legislation
relies heavily on New Jersey's. Here's one version of her draft legislation:
An actor commits a crime if he knowingly discloses a photograph, film, videotape, recording, or
other reproduction of the image of another person whose intimate parts are exposed or who is
engaged in an act of sexual contact, when the actor knows or should have known that the person
depicted did not consent to such disclosure and under circumstances in which the person has a
reasonable expectation of privacy. 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.
Franks' bill does
include some exceptions, and she might argue that this might qualify under the exception for "disclosures that serve a bona fide and lawful public purpose," though that leaves the person retweeting the image in the unenviable position of defending that retweeting a major US airline accidentally tweeting a photo of a woman with a model plane stuck up her vagina is somehow "a bona fide and lawful public purpose." Of course, that's part of why we have the First Amendment, because we don't want people to have to defend why the particular speech they're making has a "bona fide and lawful public purpose." Instead, we recognize that making people have to defend the intent of their speech likely has chilling effects.