When Congress returns from recess in early September, they’ll have another issue on the docket: revenge porn.
The National Journal reported that Rep. Jackie Speier (D-Calif.) will introduce legislation “that would make it illegal to distribute explicit images without the consent of the subject.”
Speier sees the issue as one of privacy, not sexual harassment.
However, the National Journal asserts that free-speech advocates will oppose the bill based on freedom of expression and broad language, a relevant concern.
Half of the states and the District of Columbia have laws prohibiting revenge porn, though the extent varies by state. Some states focus on intent to harass the victim, while others concern themselves with lack of consent.
The ACLU called revenge porn and the state laws attempting to keep up with the practice “a delicate issue.”
To stay within constitutional limits, the law must tread carefully among intent, consent, speech and expression, and privacy. Protections that are too broad will be nullified, and narrowly construed protections will fail to aid victims. Given the sensitive nature of revenge porn, state laws don’t always take those nuances into consideration, and face the threat of being struck down for overly broad language.
“Revenge Porn, State Law, and Free Speech,” an article by Paul Larkin Jr., a senior legal research fellow at The Heritage Foundation, advocates the use of tort law and criminal liability in cases of implied confidentiality to adjudicate revenge porn cases as a way to avoid a chilling effect on speech. The basic idea is to sidestep concerns over free speech that would otherwise make the prohibitions unconstitutional.
The majority of state laws have been enacted within the last few years, California being the first in 2013. Given the bills already waiting to be addressed when Congress returns, a federal law might not develop until every state already has some level of protection instituted.
