There Are Already Laws Revenge Porn Victims Can Use To Fight Back
Cathy Reisenwitz writes at TPM that revenge porn is awful, but the First Amendment-violating law against it is worse:
The only California state senator to vote against SB 255, Leland Yee, voiced concerns about the law. "First Amendment protections are fundamental to our free society," he said in a statement to NBC News. "While I appreciate the intent of this legislation, I feel it was too broadly drawn and could potentially be used inappropriately to censor free speech."While many would argue that there exists speech so egregious that banning it warrants violating the First Amendment, most would also agree on the extreme importance of keeping that bar very high. Banning revenge porn undoubtedly lowers that bar, and comes with some consequences which are problematic for freedom of the press.
As the ACLU has discussed, such laws can be used to censor photos with political importance. As Jess Rem pointed out for Reason magazine, people such as Jeff Hermes, Director of the Digital Media Law Project at Harvard, share this concern about the law. Hermes has stated that revenge porn laws could have kept former New York Rep. Anthony Weiner's (D) nude selfies legally suppressed.
...In talking with Katie Couric, Rebecca Wells discusses trying to work with law enforcement to get the photos taken down. As she describes it, nothing could be done because, up until now, distributing an uncopyrighted photo wasn't illegal.
But this isn't entirely true. Civil lawsuits have always been available to victims. Late last year a Texas judge ordered an 'indefinite' lock on revenge porn site PinkMeth.com as Shelby Conklin sought "punitive damages of more than $1 million for intrusion on seclusion, public disclosure of private facts, appropriation of her name and likeness and intentional infliction of emotional distress."
The case was eventually settled, and the offenders paid restitution instead of serving time in jail. This is just one example of the many successful lawsuits by victims of revenge porn.
Before the law, there were already at least seven different kinds of laws revenge porn could have violated, depending on the circumstances. They include but are not limited to laws dealing with extortion and blackmail, child pornography, invasion of privacy, copyright infringement, voyeurism, intent and violation of the Consumer Protection Act.
Lawsuits benefit the victims through compensation, cost the state less than imprisonment, and only go to trial in a case of serious harm. In addition, allowing the courts to deal with these individual cases poses far less threat to the First Amendment than more legislation.
Lawsuits benefit the victims through compensation, cost the state less than imprisonment, and only go to trial in a case of serious harm. In addition, allowing the courts to deal with these individual cases poses far less threat to the First Amendment than more legislation.
Which is why Gov. Brown will sign the legislation when it reaches his desk. And he will encourage the AG to vigorously defend the law when it gets challenged.
I mean, California is so totally rolling in dough that they can afford to defend the law...what? they're not? oh.
Also: digital pictures may wind up on the internet at any time, for any reason. The tech at Best Buy might post them after the computer they're on comes in for service. No actual malice involved.
I R A Darth Aggie at October 16, 2013 9:44 AM
"Hermes has stated that revenge porn laws could have kept former New York Rep. Anthony Weiner's (D) nude selfies legally suppressed."
*shudder*
I could have lived with that. Anyway, why can't the statement that he made nude selfies been used? Do you really need to see it.
In a word....eewww.
wtf at October 16, 2013 10:49 AM
As a more earthy Judge Judy might say:
"Don't let someone take a picture of your snizz and you won't have this problem! I'M SPEAKING, MADAM! The parties are excused. I SAID, THE PARTIES ARE EXCUSED!"
And I would agree with her.
Kevin at October 16, 2013 11:20 AM
Make of this what you want, but Senator Leland Yee, arguing for free speech here (and good for him!) wrote the 2005 bill criminalizing sale of violent video games to kids -- and that bill was tossed out by the Supreme Court declaring games to be protected speech.
http://kotaku.com/5978958/leland-yee-who-wrote-unconstitutional-anti+game-law-tells-gamers-quiet-down
jerry at October 16, 2013 12:07 PM
I humbly apologize to all for proving a gawker link.
jerry at October 16, 2013 12:08 PM
I had a colorful youth and I am sure somewhere there is some photographic evidence of something ridiculous that one of my stellar ex's may post sometime. That being said I am not running for public office and to be honest sitting here pregnant I would love to see a pic of me looking amazing and hot! My point is if you do not want them ever ever posted dont ever ever have them taken its that simple! Personal responsibility people!
Lrj at October 16, 2013 1:47 PM
Pictures!!? Hey, I was young, I needed the money.
Oh, you're talking about something else. Never mind.
Jay at October 16, 2013 1:55 PM
I think Judge Judy would toss in one more thing.
"Don't let someone take a picture of your snizz and don't act in a way they would want revenge for."
Joe J at October 16, 2013 4:47 PM
I don't know. I saw a lawyer make a present on one of these cases and he went through a bunch of arguments and showed how in that particular case they victim had little legal recourse.
There was no demands made so no black mail or anything like that. Based on the content of the tape both parties were clearly aware it was being made. Copyright - well the poster had at least half ownership and probably could claim all of it. The only likely violation according to the lawyer was around the lack of model release -- which he noted based on the circumstances would not be much of a liability.
And what happens if the poster has no money? You can't get damages from them so they get off scott free.
The Former Banker at October 16, 2013 8:15 PM
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