Revenge Pornography: An Analysis of Privacy, Obscenity, and
the First Amendment
Kamrin Baker
College of Communication, Fine Arts and Media, University of Nebraska at Omaha, Omaha, NE 68182
Recent Case Law Conclusions
ABSTRACT Elonis v. United States (2015)
An important issue in modern communication law and policy is the • Anthony Elonis posted violent “rap lyrics” about ex-wife and boss to Facebook • Looking at revenge pornography law with a sexual harassment outlook– rather
emergence of harassment via the Internet and social media. One • Ex-wife sought protection orders and the FBI investigated the lyrics than a digital communications issue– could be beneficial to victims
• Case brought to Supreme Court after multiple appeals
form of such harassment is revenge pornography, the sharing of • SCOTUS declared that while the lyrics were threatening in nature, Elonis’s intent could • Further, shifting the focus from the First Amendment reconciles the issue of
sexual images or videos without the consent of the individual not be proved developing criminal law without being unconstitutional
depicted, usually at the hands of an ex-lover. In punishing the Hoewischer v. White (2016)
• Would further zero in on the implications of all forms of sexual harassment
posters and purveyors of revenge pornography, perpetrators are • Plaintiff Hoewischer brought her debtor, White, to court after he posted nude photos of
often convicted of unrelated crimes such as identify theft or fraud, her on a specific revenge pornography website
• Judge reports in her opinion: “The fact that a debtor posts pictures to a website
Limitations
furthering the silence of revenge pornography. This new challenge
characterized as a ‘revenge porn’ website is evidence that the debtor possessed a • Constantly changing nature of social media and communication policies
in law raises some serious questions about the intersections of subjective motive to cause harm.”
obscenity, privacy and the First Amendment in the effort to most • Lack of prior literature on the subject
Packingham v. North Carolina (2017)
ethically take cases to court. To handle both the logistics and • Lack of reporting from victims, making it challenging for courts to even process
• Unconstitutional for registered sex offenders to be prohibited from social networking sites crimes of this nature
impact of persecuting revenge pornography, law students and • Justice Kennedy: “By prohibiting sex offenders from using those websites, North Carolina
professionals must consider our country’s history of gendered with one broad stroke bars access to what for many are the principal sources...of human
violence, the intent behind such pornographic posts, and the weight thought and knowledge.”
of modern communication as a vehicle for violence and invasion.
Future Research
Enacting federal law protecting victims of revenge pornography would Future research should consider:
have to be done under extreme caution, unless, perhaps, the issue is • The legal history of sexual harassment
looked at through a lens of sexual harassment. • Similar issues, such as cyber-bullying, that also take residence on social media
• The timely spread of revenge pornography content online– and the affects it has
Research Questions on, not only victims, but purveyors, as well.
RQ1: What are the intersections of obscenity, privacy, and the First
Amendment that would allow for solid criminal law in the world of revenge Law Review Analyses
pornography?
RQ2: Is that possible, or is it, in fact, technically legal for people to post
The Need to Criminalize Revenge Porn: How A Law Protecting Victims Can
Avoid Running Afoul of the First Amendment by Adrienne Kitchen
References
nonconsensual sensitive materials online?
• Privacy tort and copyright claims are insufficient Bloom S. (2015). No vengeance for ‘revenge porn’ victims: unraveling why this latest female-centric, intimate-partner
offense is still legal, and why we should criminalize it. Fordham Urban Law Journal, 42. 234-289.
• Litigation simplified with fines and demands to remove content, but crime is one
Brief Legal History of widespread and repeated damage Elonis v. United States, 135 S. Ct. 2001 (2015).
• 60-70% of victims are women Hoewischer v. White, 551 B.R. 814 (2016).
• Issue rose to prominence with Hunter Moore and IsAnyoneUp.com • Revenge porn can lead to even more gendered violent activity Kitchen, A. N. (2015). The need to criminalize revenge porn: how a law protecting victims can avoid running afoul of
• U.S. Supreme Court has yet to declare a stance on revenge pornography • Laws in place have drawbacks the First Amendment. Chicago-Kent Law Review 90(1). 247-293.
• Purveyors usually prosecuted through copyright or defamation of character Lipschultz, J. H. (2018). New Communication Technologies. In W. Wat Hopkins, Communication and the Law
No Vengeance for ‘Revenge Porn’ Victims: Unraveling Why This Latest (2018 ed., pp. 223-255). Northport, AL: Vision Press.
• About 9 states have criminal law in place (Nebraska is not one of them) Female-Centric, Intimate-Partner Offense is Still Legal and Why We Should Miller v. California, 413 U.S. 15. (1972-1973).
• History of pornography: made and distributed legally to Americans 18 years or Criminalize It by Sarah Bloom
Packingham v. North Carolina, 137 S. Ct., 1730 (2017).
older • Society historically ignores predominately female-felt crimes
Reno v. ACLU, 521 U.S. 844 (1997).
• Miller Test: The item must have “purient appeal,” must be “sufficiently • Categorize revenge pornography as sexual misconduct rather than an invasion
of privacy or cyber civil rights case Sanders, A. K. (2017). Obscenity, Revenge Pornography, and Cyberbullying. In Daxton R. Stewart, Social Media and
graphic,” or “lack serious literary, artistic, political or scientific the Law: A Guidebook for Communication Students and Professors. (2nd ed., pp. 182-202). New York, NY:
value” (Miller v. California, 1972). • Harassment statutes do not require plaintiff be physically touched– but Routledge. Szydlowski, J. (2018, July 27).
intentionally exposed
• Reno v. ACLU (1997) gives utmost First Amendment protections to Terril, S. A., Jr., & Splichal, S. (2018). Privacy Rights in an Open and Changing Society. In W. Wat
• Lawmakers must consider the loss of First Amendment liberty for victims– not Hopkins, Communication and the Law. (2018 ed., pp. 287-314). Northport, AL: Vision Press.
Internet users; we are all publishers just defendants
Watson, J. C. (2018). Regulating Pornography. In W. Wat Hopkins, Communication and the Law. 2018 ed., pp. 67-82).
Northport, AL: Vision Press.
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