A prosecutor asked me recently whether I might be willing to work with legislators to write a revenge-porn statute that would pass First Amendment muster. I replied that I would, but that I didn’t think  it could be done.

The United State’s Supreme Court’s modern approach to First Amendment challenges to content-based penal restrictions of speech, as applied in U.S. v. Stevens and U.S. v. Alvarez, is a categorical one:

• If a penal statute restricts a substantial amount of protected speech based on its content, it is invalid.
• All speech is constitutionally protected unless it falls in one of a very few narrowly defined categories of historically unprotected speech.
• Among those categories ((The list is not exclusive because it is possible that other categories will be recognized in the future.)) are:
  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. [Distribution of] obscenity;
  3. Defamation;
  4. Speech integral to [non-speech] criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent. ((“…although a restriction under the last category is most difficult to sustain.”))

For a revenge-porn statute to be constitutional, it would have to either:

• Not be content-based;
• Restrict speech only in one of the nine recognized categories of unprotected speech; or
• Restrict speech only in a newly recognized category of unprotected speech.

A restriction on speech is content-based if the content of the speech matters. By definition, a revenge-porn statute will be content-based: posting sexual images of a person will be restricted, but posting grumpy-cat pictures will not be.

Revenge porn does not fall into one of the nine recognized categories of unprotected speech.

Advocates of revenge porn criminalization have latched gleefully onto Eugene Volokh’s suggestion that “Historically and traditionally, such depictions would likely have been seen as unprotected obscenity” without considering the endgame of the parenthetical that follows: “(likely alongside many consensual depictions of nudity).”

The zealots—Mary Anne Franks and Danielle Citron chief among them—would throw out the baby (consensual depictions of nudity) with the bathwater (nonconsensual depictions of nudity). If the image is obscene when Jane takes it of Joe, it is obscene whether Joe has consented or not.

Franks and Citron have also proposed that revenge porn, being of purely private concern, is less protected than other speech. Adoption of this rule would allow the state to outlaw all erotica, as well as family photos and personal correspondence. Such is the way of zealots.

Publication of revenge porn is an invasion of privacy. The amateur understanding of the First Amendment is that violations of privacy are not protected speech. But “speech that violates privacy” is not one of the categories of speech that can be criminalized. Nor is “embarrassing speech” or “harmful speech.”

Here’s the text of one of Texas’s proposed new revenge-porn bills (HB 101):

Sec. 21.16. UNLAWFUL DISCLOSURE OF CERTAIN VISUAL MATERIAL.
(a) In this section:
(1) “Sexual conduct” has the meaning assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.
(c) It is a defense to prosecution under this section that:
(1) the disclosure is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure was permitted or required by law;
(2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.
(d) An offense under this section is a state jail felony.

The restricted speech is:

• Disclosure of visual material (other than by cops, doctors, snitches, lawyers in court, or online services);
• Depicting another person engaged in sexual conduct (unless exposed voluntarily in public or commercial setting);
• Knowing (or should-knowing) that the person has not consented to disclosure.

That does not fall into any recognized category of unprotected speech.

For this or any other revenge-porn statute to pass constitutional muster, the Supreme Court would have to recognize another category of historically unprotected speech.

The thing about these categories of unprotected speech is that everything in them is unprotected. There is not some obscenity that may be distributed, and some obscenity that may not be; nor is there some protected and some unprotected defamation. If speech falls into a category of unprotected speech, then it is unprotected and the government can punish it. So before approving a new category of unprotected speech, we had better see if there is a baby in the bathwater.

So how would we define the category of unprotected speech?

We could recognize a really narrow category of unprotected speech, essentially sui generis—disclosure of visual material depicting another person engaged in sexual conduct knowing that the person has not consented, if none of the exceptions apply.

The Supreme Court has not shown an inclination to micromanage categories of unprotected speech in that way. The narrowest recognized category—child pornography—is arguably a subcategory of speech integral to criminal conduct.

But if it did, even such a microcategory would allow the criminalization of (and this statute would in fact criminalize) the publication of Congressman Weiner’s dick pics. Any broadening of the category (for example, “disclosure of visual material depicting another person engaged in sexual conduct” or “disclosure of visual material depicting another person, knowing that the person has not consented,” or “violations of privacy”) would create vast holes in the First Amendment—we must be able to violate people’s privacy sometimes without fear of imprisonment.

Even if we don’t see it, the wise thing to do, before tossing out a part of our freedom of speech that we would never want to use anyway, is to ask whether there might be a baby hiding in the bathwater that we’re just not seeing. People who are more concerned about the government intruding into our lives than about vindictive ex-girlfriends doing so should oppose this and any other effort to attach a criminal penalty to something that is currently constitutionally protected.

But they won’t. Do-gooders will support the criminalization of bad conduct without consideration of its effect on good conduct. We’ll wind up with another revenge-porn penal statute that can’t be justified under current constitutional law.

Fortunately, getting the U.S. Supreme Court to recognize a new category of unprotected speech is not an easy proposition. Unfortunately, people will be arrested and prosecuted, timid do-gooder trial and appellate courts will uphold the bad statute, and the government will destroy more lives before the issue hits the U.S. Supreme Court, or even the Texas Court of Criminal Appeals.