Regulating revenge porn isn’t censorship

Revenge porn, also known as nonconsensual pornography or cyberexploitation, has been with us for a while, but only recently — with the hack of celebrities’ iCloud accounts — has it captured the public’s attention. What the exposure of Jennifer Lawrence’s and others’ photos made clear is that the powerful and the powerless are equally vulnerable to the exploitation of their nude photos. And the law is finally starting to protect these victims. In the past two weeks, the Federal Trade Commission has taken down a major revenge porn website, and a California jury convicted a revenge porn site operator on multiple charges of extortion and identity theft.

Many legal experts — us included — have called for better regulation of this real and important problem. Such calls would appear to represent a straightforward case of protecting people against harms ranging from harassment to sex crimes. Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

Revenge porn and ordinary non–revenge porn are different and can be treated differently. Consider the kitchen knife, arguably the most important tool in the kitchen. You can use a knife to chop an onion but not to stab a fellow cook, no matter how irritating he may be. Guns are another example, different only because the Supreme Court has read the Second Amendment to protect an individual’s right to bear arms. Still, you can own a gun, but you can’t use it to harm people because they are irritating or because they dumped you.

Pornography — ordinary and nonconsensual — works the same way. Porn rightly enjoys First Amendment protection. Both the First Amendment and many existing laws limit the government’s legal and practical ability to regulate the creation, possession and distribution of consensually produced pornography. That’s a good thing, even if much porn is aesthetically unappealing, produced in unpleasant working conditions or has themes that many find offensive or disturbing.

A society that protects free speech means that consenting adults get to choose what they find pleasing, beautiful or arousing in books, music, photos or film. As the Supreme Court put it clearly many years ago in Stanley v. Georgia:

If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

In other words, we can’t regulate consensual pornography (or literature or film) because we don’t like the ideas in it or because they make us uncomfortable. 

That doesn’t mean it can’t be proscribed for other reasons. Revenge porn is different from consensual pornography in crucial ways. If laws punish revenge pornography because lawmakers don’t like its humiliating message or because they hate pornography, that would be unconstitutional under the First Amendment.

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose. 

In this respect, porn is no different from kitchen knives, because the question is why — not whether — we are regulating them. American law gives the strongest protection to free speech of any society in the world, but words have never been absolutely protected, and rightly so. The First Amendment allows regulation of the traditionally unprotected categories of threats, obscenity, child pornography, libel, incitement and “fighting words.” But it also includes many uses of words that we don’t think of as involving free speech, such as hiring assassins, insider trading, stalking, disclosing information in breach of confidence and many others. The disclosure of a nude photo of a person in breach of trust and privacy is similarly beneath the attention of the First Amendment, and rightly so.

Being pro-porn but anti–revenge porn extends to why we should care about the production of sexually explicit videos by ordinary people in the first place. Amateur porn is inevitable; networked phones with high-definition cameras are everywhere, including our bedrooms. The celebrities in the iCloud hack were behaving like ordinary young people, and in so doing they were engaging in private self-expression. Lawrence has nothing to apologize for in taking private nude selfies, nor do the many noncelebrity victims of revenge porn. If women or men want to create sexy images of and for themselves, that is their right. If they want to upload those images to a sex-themed version of YouTube, they should be able to do that too. That’s what being pro-porn means.

But if voyeurs or intimates take images without people’s consent or if consensually shared images are sent to the world in breach of trust and privacy, that’s different. We should regulate nonconsensual porn to protect these victims, and the First Amendment is no bar to a well-crafted law. The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

Limited protection for confidential nude photos bears no threat to our broad constitutional protections for free speech. That’s because the First Amendment itself is also pro-porn but anti–revenge porn.