LIONEL PODCAST: Revenge Porn Statutes Are Per Se Unconstitutional

Tell me what you see.

What is this? Is it revenge porn? Is it someone posting the documentation of how proud he is to be associated with a sylph of this nubility? Is it sextortion? Is it a retweet of a picture sent from the lass contained therein? It’s the motivation of the poster that determines in great part the criminal exposure (pun intended) and therein lies the problem.

Hey, Stuart Smalley, butt out! Al Franken, the constitutional jack the Ripper, who decided that net neutrality was a great thing all of a sudden, wrote a letter to the FBI. “As technologies rapidly advance, it is our responsibility to ensure that our nation’s laws keep pace with those technologies. But it is also our responsibility to ensure that existing laws are strictly enforced.” Remember Lionel’s Law: the law always lags behind technology. Well, what this represents is yet another example of your government trying to claw back the jurisdiction it lost when the Internet got out of control after DARPA and ancillary institutions began its research in the early 60s. The government’s attacking the Internet on many fronts: net neutrality via Title II of the Communications Act, copyright and intellectual property statutes, decency, national security, perhaps licensing and the Fairness Doctrine and now revenge porn.

Here come the lawsuits . . . and it’s about time. In 2014 the ACLU and a broad coalition of bookstores, newspapers, photographers, publishers, and librarians filed a federal lawsuit challenging an Arizona law that criminalizes speech protected by the First Amendment.

[T]he law criminalizes far more than such offensive acts, and it is not limited to “revenge.” A prosecutor need not prove that the person publishing the photograph intended to harm the person depicted. Likewise, a person who shares a photograph can be convicted of a felony even if the person depicted had no expectation of privacy in the image and suffered no harm. The law applies even when the person in the picture is not recognizable, and the law is not limited to “porn” – it criminalizes publication of nude and sexual images that could not possibly be considered pornography, let alone obscene.

It’s all covered, Sparky. Think of what can qualify under revenge porn or even sextortion, both involving the dissemination of information without consent that proves “embarrassing.” Think about news stories and storied Congressmen who snap photos of their genitals and sext away. When the news media publish them, they are guilty under these most vague statutes. Reports and exposés of Abu Ghraib depicting detained Muslim men forced to simulate fellatio whilst nude or appearing nude. It’s the question of overbreadth that plagues so many issues of constitutional import not to mention the following statute of note.

Section 230 of the Communications Decency Act

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content. Though there are important exceptions for certain criminal and intellectual property-based claims, CDA 230 creates a broad protection that has allowed innovation and free speech online to flourish. [Source]

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