On Thursday, Colorado Governor John Hickenlooper signed into law a statute criminalizing "revenge porn." As professors with expertise in constitutional and criminal law, we commend the legislature and governor for their actions and hope other states will follow suit.
Revenge porn--more accurately known as "non-consensual pornography"--is the distribution of intimate pictures of another person without that person's consent. One common scenario involves an angry former partner who wishes to humiliate. But roommates, landlords, voyeurs, and hackers have likewise obtained and distributed intimate pictures without permission.
Victims of non-consensual pornography suffer devastating harm. Unwanted publication of one's intimate pictures can damage employment prospects, destroy relationships, and exact an immense psychological toll. Many victims experience intense harassment and threats to physical safety--both online and offline--as a direct result of the publication of the pictures. Several victims have committed suicide.
In recognition of these harms, twelve states, most recently including Colorado, have already criminalized non-consensual pornography. Legislation is pending in several others and at the federal level.
The new Colorado law creates two misdemeanors. One applies when an individual posts intimate pictures to harass the victim by causing severe emotional distress; the other when the pictures are posted for monetary gain. Both offenses apply only to posting on social media either without consent or when the perpetrator should have known that the person depicted reasonably expected that the pictures would remain private. Neither applies to pictures related to a newsworthy event or to events related to public figures.
Some have questioned whether criminalizing non-consensual pornography infringes on protected expression. While this is an important concern, we believe that Colorado's new law survives constitutional scrutiny. The First Amendment has never shielded all expression: the Supreme Court has held that the government can regulate certain unprotected categories of speech that, like non-consensual pornography, cause egregious harm and lack social value. Indeed, victims have already turned to civil remedies such as copyright law, which courts have repeatedly held constitutional. And the ACLU--typically critical of laws that infringe on expression--agrees that criminal laws can withstand constitutional scrutiny if they comply with requirements that the Colorado law meets.
It's true that the Supreme Court has never explicitly addressed non-consensual pornography. But the Supreme Court had also never addressed obscenity until it addressed obscenity, nor had it addressed child pornography until it addressed child pornography. Technological developments enable both inspiring new forms of communication and awful new mechanisms of abuse. The First Amendment is subject to ongoing interpretation as the world it regulates continues to evolve. Non-consensual pornography closely resembles other forms of unprotected expression and should be categorized with them.
Others might object that non-consensual pornography--while repugnant--should not be criminalized because civil law provides adequate remedies. For example, copyright law allows some victims to sue for damages and have their pictures removed, and tort law permits suits for invasion of privacy, intentional infliction of emotional distress, and similar claims. Such lawsuits play an important role, but they provide an incomplete remedy. Civil litigation is expensive, and not everyone can afford a lawyer. Copyright law only provides a remedy when the victim owns the copyright to the picture, which is often not the case if someone else took the picture. Some perpetrators of non-consensual pornography are insolvent, so victims would recover little or nothing. Most importantly, even large civil damages awards won't solve the real problem. Once published online, non-consensual pornography is often downloaded and reposted innumerable times. Preventing initial posting is critical, and criminalization supplies an important deterrent.
The new Colorado crimes will be Class 1 misdemeanors, punishable by a maximum $10,000 fine and a year imprisonment. This category also includes such offenses as unlawful telemarketing practices, late payment of gambling taxes, and failure to present evidence of car insurance. The serious harm caused by publishing intimate pictures without permission deserves punishment at least as severe as these acts. Indeed, some states have made non-consensual pornography a felony.
The law is legally sound and good policy. We are glad to have it on the books in our state.