Suppose you take naked pictures of yourself. Yes, I know – you would never do such a thing. Bear with me.
Suppose then you email that picture of your naked self to a friend. No, I don’t know why you would, either. But a lot of people you’d think would know better seem to do it nowadays. One of them happens to be running for mayor of New York City.
Now let’s say you get into a fight with your significant other. You break up. There are hard feelings. Suddenly, those nude pics pop up on a pornographic website, or hundreds of such websites and blogs. Without your consent.
Maybe that picture ends up in your boss’s email inbox, or on Breitbart.com, and you lose your job. Maybe strangers start calling and writing with lewd propositions – or threats.
It’s called “revenge porn,” and as with every other freakish niche perversion nowadays, there are whole sites dedicated to humiliating young women – and, let’s face it, this is almost exclusively about demeaning and victimizing young women, as opposed to married megalomaniacal New York pols.
Today in California and 48 other states, a victim under those circumstances would have very little legal recourse. A bill by state Sen. Anthony Cannella, R-Ceres, attempts to provide a remedy, but his legislation doesn’t go nearly far enough.
Outlawing revenge porn should be easy. Yet only one state – New Jersey – makes posting non-consensual “revenge porn” a felony. Florida legislators earlier this year tried and failed to pass a bill similar to New Jersey’s.
Cannella’s Senate Bill 255 would make it a misdemeanor offense if a person “photographs or records by any means the image of another, identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image with the intent to cause serious emotional distress.”
The bill awaits a vote from the Assembly after passing the Senate overwhelmingly. Sen. Leland Yee, D-San Francisco, provided the lone dissenting vote along with a useful example of how to miss the point of the First Amendment entirely.
“While I appreciate the intent of this legislation,” Yee explained after the vote last month, “I feel it was too broadly drawn and could potentially be used inappropriately to censor free speech.” The American Civil Liberties Union, which opposed SB255 until two weeks ago, claimed Cannella’s bill targeted “merely offensive” speech, which nevertheless remains free speech.
Nonsense. The two aren’t even in the same category.
“It’s like saying a threat is ‘just words,’” explains Mary Anne Franks, a professor at the University of Miami Law School. A specialist in the fledgling field of online harassment, Franks says she suggested several ways to improve Cannella’s bill. None made the cut.
Rarely do I find myself making common cause with feminist law professors, but Franks makes an uncomplicated case. “Revenge porn” isn’t a First Amendment problem any more than libel and slander – or obscenity, for that matter – are protected forms of speech. What is the point of posting nude pictures of someone without their consent, after all, if not to defame their character?
And contrary to Yee, the problem with SB255 isn’t that the bill is too broad. It’s actually much too narrow.
As written, the bill doesn’t even cover the scenario I posed above. A self-shot that’s subsequently posted without the consent of the person who took the picture would be beyond the law’s reach.
“The bill is a poor tool to address a real problem with profound harms,” says Danielle Keats Citron, a law professor at the University of Maryland. “Much of revenge porn is taken or shared consensually. The problem is that the victims do not, and would not, consent to posting their intimate pictures online.”
Beyond the phony First Amendment hand-wringing, this entire issue shows the extent of our cultural paralysis. Porn – not just the “revenge” variety – is everywhere now. And even if smut hasn’t quite lost the power to shock (thank you, Miley Cyrus) it’s become increasingly mainstream.
Yet even to suggest regulating pornography on straightforward moral grounds would be met with eye-rolling derision. Today, everyone lazily cites Justice Potter Stewart’s 50-year-old quip about knowing hardcore pornography when he sees it. That’s usually followed by John Marshall Harlan’s clichéd dictum, “one man’s vulgarity is another’s lyric.”
So we legislate euphemistically. Assemblyman Isadore Hall touts his bill to require porn actors to wear condoms as a “workplace safety measure” – and nothing more. Lawmakers can make “revenge porn” an offense against personal privacy, but they have little to say about public decency.
Revenge porn obviously should be a crime – and California needs a better bill than Cannella’s. But the prescription merely treats a symptom of a much deeper rot.
Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Reach him at firstname.lastname@example.org.