Are ‘Revenge Porn’ Postings Protected Free Speech?
On October 1, California Governor Jerry Brown signed a bill that would make it illegal for people to humiliate ex-lovers by posting indecent photos or videos online. California is the second U.S. state to criminalize the act of revenge porn, though as a misdemeanor. New Jersey considers it a felony.
Under the new California law targeting “revenge porn,” distributing sexual images “with the intent to cause serious emotional distress” would carry a fine of as much as $1,000 and as long as six months in jail -- even if the pictures were originally taken with consent. The law bans only images taken by the person posting them, meaning that self-photos aren’t protected. That’s good news for Anthony Weiner, I guess.
The posting of ‘revenge porn’ photos by a disgruntled ex of a past partner illustrates a new low in civility in our country. It seems as though all too many have lost their sense of right and wrong -- they act only in their own selfish interests. And, all too many have lost the ability to reason ethically, assuming they ever possessed that skill.
Whether it’s random and senseless violence against another, road rage, cyber-bullying, or other offensive acts that are occurring with increased frequency in our society, the U.S., as a country, has lost its moral compass.
Whether it’s gratuitous violence, sexually-charged images, hateful speech, and downright rudeness, the U.S. has morphed into a narcissistic country that values self-indulgence above common sense and common decency.
Some will say the generalized examples I cite are the exception to civil behavior and not the rule. I say it is becoming the norm with increasing frequency and the fact that we tolerate it as a society reflects our willingness to go along with declining ethics rather than fight the good fight. The fact that Hollywood and the social media continue to spark the flames of hedonistic behavior simply means that these institutions believe they are giving us, or being used, in ways that we want.
What about the First Amendment issues? The First Amendment guarantees you the right to post naked pictures of your exes on the Internet.
Here's exactly what the First Amendment of the Constitution says:
The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.
Despite this guarantee, courts have established exceptions to free speech, notably defamation and child pornography. Revenge porn could be held up as another exception, since it obviously wasn't considered by the framers of our Constitution (even if courts have ruled that some “speech” such as Facebook ‘Likes’ is protected by the Constitution.)
Victims of vindictive pornography distribution, aka revenge porn, are often women who originally shared naked pictures of themselves with their boyfriends. The distribution of the photos online can be thoroughly humiliating for the woman in those pictures.
The U.S. Supreme Court has upheld the right to some pretty offensive behavior including, in March 2011, that that noxious, highly offensive protests conducted outside solemn military funerals are protected by the First Amendment when the protests take place in public and address matters of public concern. In that decision, America's highest court ruled the Westboro Baptist Church has a Constitutional right to hold hateful protests outside military funerals.
In order to withstand Constitutional challenge, the ‘revenge porn’ law in California was narrowly construed to require the person who posted revenge porn to do so with the intent to “cause serious emotional distress.” The final law also says the other person had to actually experience emotional distress. Well that’s great news. More money for the lawyers to hash out in court exactly what these terms mean.
The bottom line is ethical behavior cannot be legislated. Our desire to act ethically comes from within and not because of an externally exposed measure of acceptable behavior. Each individual must monitor his or her behavior and always strive to act in accordance with societal norms.
No one is perfect. However, the ethical person constantly questions his or her own behavior and evaluates against the norms including honesty, integrity, fairness, respect, and responsibility.
As for our First Amendment right, there is a difference between what we have a right to do and what the right thing to do is.
Blog posted by Steven Mintz, aka Ethics Sage, on October 7, 2013