Revenge porn, also known as nonconsensual pornography or cyberexploitation, has been with us for a while, but only recently — with the hack of celebrities’ iCloud accounts — has it captured the public’s attention. What the exposure of Jennifer Lawrence’s and others’ photos made clear is that the powerful and the powerless are equally vulnerable to the exploitation of their nude photos. And the law is finally starting to protect these victims. In the past two weeks, the Federal Trade Commission has taken down a major revenge porn website, and a California jury convicted a revenge porn site operator on multiple charges of extortion and identity theft.
Many legal experts — us included — have called for better regulation of this real and important problem. Such calls would appear to represent a straightforward case of protecting people against harms ranging from harassment tosex crimes. Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.
But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but whyand how.
Revenge porn and ordinary non–revenge porn are different and can be treated differently. Consider the kitchen knife, arguably the most important tool in the kitchen. You can use a knife to chop an onion but not to stab a fellow cook, no matter how irritating he may be. Guns are another example, different only because the Supreme Court has read the Second Amendment to protect an individual’s right to bear arms. Still, you can own a gun, but you can’t use it to harm people because they are irritating or because they dumped you.
Pornography — ordinary and nonconsensual — works the same way. Porn rightly enjoys First Amendment protection. Both the First Amendment and many existing laws limit the government’s legal and practical ability to regulate the creation, possession and distribution of consensually produced pornography. That’s a good thing, even if much porn is aesthetically unappealing, produced in unpleasant working conditions or has themes that many find offensive or disturbing.
Read the full piece at Al Jazeera America.
- Publication Type:Other Writing
- Publication Date:02/11/2015