Federal Revenge Porn Bill Not As Bad As It Could Have Been, Still Probably Unconstitutional

Legal Issues

from the just-saying dept

For the last two and half years or so, my Congressional Representative, Jackie Speier, has insisted that she was just about to introduce a federal law outlawing revenge porn. And then it wouldn’t come. There would be an article saying it was almost ready… and then nothing. Months would go by, another article would appear… and then nothing. Finally, on Thursday, Speier introduced the bill, insisting that the delay was in convincing Silicon Valley companies to sign on to it. Of course, that leaves out the fact that the reason many refused to sign on was because previous iterations of the bill were incredibly problematic and almost certainly unconstitutional. With two and half years to work on it, however, the finally introduced bill, called the Intimate Privacy Protection Act of 2016, or IPPA, is not nearly as bad as it could have been, nor as bad as some of the suggestions passed around by those who “consulted” on drafting the bill.

But that doesn’t mean the bill isn’t unconstitutional.

Let’s be clear: revenge porn is horrific. The creeps who put up revenge porn sites deserve to be shamed and mocked. The people who actually upload images to such sites or visit them are complete losers who need to get a life. But there are really important legal issues that come up when you try to outlaw such things, starting with the First Amendment. Yes, yes, as everyone will say, there are some exceptions to the First Amendment (though if you claim that shouting fire in a crowded theater is one of them, you’re going to be mocked as well). But the exceptions to the first First Amendment are very narrowly prescribed by the Supreme Court, and they’re much more narrow than most armchair lawyers believe. Looking over the list, it’s pretty difficult to see how revenge porn fits.

Next up, context matters a lot, and while the bill tries to take some of that into account, it’s unclear if it actually succeeds. The bill has a vague and nearly totally undefined “public interest” exception — but what does that actually include? That’s left unclear. Remember last year when Lenny Kravitz accidentally exposed himself at a concert. Was everyone who passed around videos of images of that violating this new revenge porn bill? It would seem so. That would be “knowingly” using an “interactive computer service… to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image… of the naked genitals… of a person, with reckless disregard for the person’s lack of consent to the distribution.”

Remember, tons of people were passing around that image and video last year. Should all of them face five years in prison plus fines? That seems… extreme. And extremely problematic.

The ACLU has a rather simple request to fix this problem with the law: add an intent requirement, such that it only applies to those who “maliciously and intentionally invade another person’s privacy.” Even that may have some First Amendment issues, but supporters of the law refused to add an intent standard, claiming that such a standard would be too limiting, and wouldn’t cover those who weren’t motivated by “malice” but by money or fame. But, that’s ridiculous. Any court would likely decide that setting up a revenge porn site for money was a form of malice.

Thankfully, this version of the law says that it does not apply to online platforms, as defined by Section 230 of the Communications Decency Act, which is a big jump from where some of the crafters of this bill were a few years ago, in which they openly discussed undermining CDA 230 as a way to attack revenge porn.

In the end, two and a half years of effort means that the bill isn’t as horrible as some of the earliest suggestions, but it’s still not clear that it’s constitutional. It seems likely that the ACLU, and possibly others, will likely challenge this law should it pass and then I guess we’ll find out what the courts actually think of it.

Filed Under: first amendment, free speech, jackie speier, revenge porn