The Constitution and Revenge Porn

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem to face some very tough sledding—if indeed they can be written in ways that are constitutionally permissible at all. At the end of this paper, I propose a possible approach to crafting a law that addresses the primary harms of revenge porn, but which seeks avoid the direct affront to the First Amendment of the revenge porn laws currently proposed and enacted. Whether this approach would actually work is a question that cannot be answered with certainty but, unless the Supreme Court changes the application of the First Amendment to accommodate revenge porn, I think its chances are at least better than the statutes, drafts and proposals to date