Paper
The Constitution and Revenge Porn
Published Mar 16, 2015 · J. A. Humbach
Pace Law Review
16
Citations
4
Influential Citations
Abstract
Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.
Revenge porn laws can be written with careful attention to constitutional precedents, potentially surviving constitutional scrutiny and addressing primary harms without content discrimination.
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