Here’s what Marc Randazza said to an academic about her proposed revenge-porn statute:

While you’re sitting on your ass “teaching people how to think like a lawyer,” I’m actually out front on this issue, *litigating* these kinds of cases.

I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.

Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.

I’m neither part of the academic circle-jerk nor a vote-starved legislator, and I think that criminalizing some publication of photographs is tolerable (as some publication—obscenity, child porn—is already criminalized) as long as it doesn’t narrow First Amendment protections. ((I hope Marco, who fights revenge-porn publishers in civil court, will tell me why I’m wrong.))

Single-issue advocates usually write bad laws. So we can probably do better than the true believers at drafting a criminal revenge-porn statute that might pass First Amendment muster. Our advantage is the ability to look at both sides of the issue and meet the arguments against constitutionality. Not having our chances of tenure dependent on our success, we are not paralyzed by fear of failure. Not paralyzed by fear of failure, we can avoid the activists’ six major mistakes: Over­state your case. Mis­state the law. Make hand­wav­ing gen­er­al­iza­tions. Demo­nize dis­agree­ment. Use false analo­gies. Lie.

Let’s take a crack at it, shall we?

The evil that we’re trying to eliminate is people posting nude or explicit images of former lovers online without the former lovers’ consent. At the very least, when Lucrezia shares a nude selfie with Giovanni, we want Giovanni to risk conviction if he posts the image on a revenge porn website with Lucrezia’s address and phone number to humiliate Lucrezia.

The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.

While UH law prof Josh Blackman has said that “Invariably, the court will balance interests in First Amendment jurisprudence” and UCLA law prof Eugene Volokh has suggested that the current definition of obscenity might be expanded to encompass revenge porn, we want our statute to be constitutional here and now, rather than in some speculative world in which the Supreme Court retreats from U.S. v. Stevens or rewrites the test for obscenity.

A scattershot approach will not work. The categories of unprotected speech that the Supreme Court has recognized are narrowly drawn. If a criminal statute arguably forbids both fighting words and obscenity, then it likely forbids a great deal of speech that is neither, and therefore fails constitutional muster. We want our statute to cover only speech that fits in one of the already-recognized categories of unprotected speech. Let’s pick a category, and go to work.

I pick obscenity. While the proposed statute that I was analyzing here would not survive a First Amendment challenge, and its author’s justifications for it are undeveloped and petulant, my analysis of the idea that sexual or nude images published nonconsensually could ipso facto be obscenity was incomplete and, I suspect, ultimately wrong. At the heart of obscenity are community standards, and a community might well find a particular revenge-porn publication obscene.

For a work to be obscene, it must: appeal to prurient interests; depict sexual conduct in a patently offensive way; and lack serious value. The test refers to “a work,” so you might assume that the test for obscenity relates to inherent qualities of the work. But what is obscene when distributed to children is not necessarily obscene when distributed to adults; what is obscene in Ogden is not necessarily obscene in San Francisco; and as the Court said in 1996 in Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C.:

[W]hat is “patently offensive” depends in part on context (the kind of program on which it appears), degree (not “an occasional expletive”), and time of broadcast (a “pig” is offensive in “the parlor” but not the “barnyard”).

Since obscenity is context-sensitive, an image that is not obscene when Lucrezia publishes it to Giovanni might well be part of an obscene publication when Giovanni distributes it in a different context.

For example, publishing Lucrezia’s selfie next to her employer’s name and phone number might be more offensive to the community ((Which community?)) than just publishing the picture but not identifying her.

It might be argued that if Giovanni’s republication of Lucrezia’s image is obscene, current obscenity law (for example, Texas Penal Code Section 43.23) already forbids it. But if we’re attacking revenge porn as the particular evil that it is, we might not want to simply rely on obscenity laws. Since Lucrezia’s image cannot be presumed to be inherently obscene, we want the jury to consider at least the lack of consent, how Giovanni distributed, and perhaps even why Giovanni distributed it in deciding whether it is patently offensive.

If we want our statute upheld as a constitutional restriction on obscenity, we can’t simply stamp our feet and declare:

Dis­clos­ing pic­tures and videos that expose an individual’s gen­i­tals or reveal an indi­vid­ual engag­ing in a sex­ual act with­out that individual’s con­sent eas­ily qual­i­fies as a “patently offen­sive rep­re­sen­ta­tion” of sex­ual con­duct. Such mate­r­ial more­over offers no “seri­ous lit­er­ary, artis­tic, polit­i­cal, or sci­en­tific value.”

Whether the publication is patently offensive, and whether it has serious value, are questions that will have to be left to the jury if our statute is to be upheld on obscenity grounds.

A challenge to our statute will be an “as written” challenge, so the appellate courts will not be outraged by a record of Giovanni’s bad acts and the harm he caused Lucrezia. To meet that challenge, we have to define the crime so that there is little chance that someone whose distribution of images was not obscene will be convicted.

Here we necessarily run into community standards: while the whole idea of revenge porn is offensive to us, a jury of twelve might not find a particular publication patently offensive. This is a risk that we have to take—for our statute to be upheld under anything resembling current obscenity law, we have to be willing to bow to the standards of the community, which means making the image’s violation of those standards an element of the offense.

So our proposed statute might have a basic framework something like this:

A person who intentionally distributes a photograph of another without the other’s express consent commits an offense if:

1. The average person, applying contemporary community standards, would find, taking into account the manner of its distribution and the lack of consent, that taken as a whole the image appeals to the prurient interest in sex;
2. Taking into account the manner of its distribution and the lack of consent, the image depicts or describes:
   1. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality;  or
   2. Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs;  and
3. Taking into account the manner of its distribution and the lack of consent, the image, taken as a whole, lacks serious literary, artistic, political, and scientific value.

[The definition of sexual conduct in (A) and (B), I’ve lifted from Texas’s obscenity statute. It could be better written, but that’s not necessary for our purposes.]

Nathaniel Burney may well have something to say about the required culpable mental states—intent for the posting, but strict liability for the lack of express consent.

In the First Amendment arena, we may run into the problem of the statute overturned by the Court in R.A.V. v. City of St. Paul: the State is not permitted to select, based on its content, some unprotected speech to forbid and some to permit. We could resolve this by removing the non-obscenity content criterion, that is, by forbidding the obscenely nonconsensual distribution of any material, rather than only of an image of another.

The lack of consent would, I think, be a manner-and-means restriction, rather than a content restriction, but the problem, if the statute is not content-based, is whose consent? We could remove the consent element, but then what we would have is an obscenity statute, with “manner of distribution” specified as a factor in the statute. I don’t see any obvious problems with this—a legislature could direct juries to take into account particular details of the context when deciding whether a work is patently offensive, provided that it left the decision up to the jury.

But if lack of consent is an important element of our criminalization of revenge porn—and it is, for we are trying to protect Lucrezia from Giovanni, not to protect Lucrezia from herself—we may have a patently problem.

In English “patently” means “clearly; without doubt,” but in law “patently” (pronounced pay’-tent-ly) means “appearing on its face,” the opposite of “latently.”

If “patently” in “patently offensive” has its common meaning, then the lack of consent (which is not necessarily shown on the face of the publication—Giovanni might even claim when distributing the image that Lucrezia asked him to share it) may be considered by the jury in determining whether the publication is patently offensive.

But if the “patently” in “patently offensive” has its legal meaning, then unless Lucrezia’s lack of consent appears on the face of the publication it is not a factor that a jury should consider in deciding whether the publication is obscene.

The Supreme Court hasn’t given any explicit guidance on which meaning “patently” has. On the one hand, the Supreme Court, being crowded with law geeks, generally uses terms in their legal sense; on the other, the Supreme Court has approved laws that allow juries of laypeople to decide what is “patently offensive” without defining “patently.”

The Supreme Court has described the thing that must be patently offensive as “a work” (rather than “an act of publication”), but it has made it clear that circumstances extraneous to the work (context and time of broadcast) are relevant to the determination.

So this statute has the advantage over others proposed of fitting into the current framework of First Amendment law. An appellate court finding it constitutional might be misguessing what the Supreme Court means by “patently,” but it wouldn’t be discovering a new category of unprotected speech, nor even expanding a currently recognized category.
The downside, from the eliminate-revenge-porn perspective, is that treating revenge porn as obscenity requires that the State prove much that is non-trivial to prove, and gives Giovanni lots of room to defend himself—for example, he could bring in an expert to explain to the jury why his republication of Lucrezia’s image has serious artistic value.

That the State’s burden would be non-trivial is an upside from the defend-free-speech perspective. The harder we make it for Giovanni to be convicted, the more likely it is that our statute will pass muster. We cannot eliminate the “no serious value” element (for example) without rewriting obscenity law, and it is a premise of this post that we want our statute to be constitutional under the current First Amendment regime.

It may not be possible to convict everyone who is caught republishing paramours’ sex pictures without their consent (never mind the difficulty in catching everyone who does so). A constitutional revenge-porn statute, even if it doesn’t make conviction of every publisher inevitable, will dissuade some people from publishing revenge porn; an unconstitutional revenge-porn statute, on the other hand (like those statutes passed in California and New Jersey), will be a joke, setting back the fight against revenge porn by five or ten years. If we want our statute to be constitutional, we may have to face the fact that it is not possible both to eliminate revenge porn and to defend free speech; we may have to settle for discouraging and disrupting revenge porn rather than eliminating it.

Unlike some who have proposed revenge-porn statutes, I welcome dissent. My self-image doesn’t depend on my being right. I love to be shown that I’m wrong, even publicly, because then I can stop being wrong. So, please, tell me how I’m wrong.