THE BLOG

California's Attempt to Avenge Revenge Porn

09/09/2013 11:21 am ET | Updated Nov 09, 2013

So your boyfriend or girlfriend broke up with you? Maybe they cheated on you or worse yet, told you that you weren't the "one." Now, in order to make them feel some semblance of the pain you felt, you think it's a good idea to post sexual pictures you two shared with each other on the web. This might certainly accomplish the objective but be careful if you live in California, because you may have just committed a misdemeanor punishable by up to one year in jail.

California legislatures are currently discussing a bill that would make so-called "revenge porn" a crime. "Revenge Porn" is the act of posting or distributing nude/semi nude pictures of an individual without their consent. While it's obvious that this type of posting and distributing causes emotional harm, it also has other consequences, like making it difficult to find a job. To make matters worse, the effects of revenge porn are amplified by websites dedicated solely to these kinds of posts! Talk about a bad breakup -- now they go viral.

The problem is big enough that it's starting to get noticed. California has drafted a bill in order to tackle the problem after New Jersey and Florida attempted to address the issue as well. The California version of the bill criminalizes the taking of a photograph of another "identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation or privacy, and subsequently distributing the image taken, with the intent to cause serious emotional distress." In layman's terms: You can't distribute a revealing photo if the subject hasn't given you permission. Although a good attempt at addressing a serious problem, the California statute goes too far and also doesn't go far enough, leaving it open to criticisms that it is too strong, as First Amendment protectors will claim, and that it is too weak, as potential victims of revenge porn will argue.

The California statute as it stands has problematic First Amendment implications. In particular, many would argue that this type of "speech" is protected, and they could point some support from the Supreme Court, which gets pretty touchy (rightfully so) about free speech. In a very public case Snyder v. Phelps, the Supreme Court dismissed a lawsuit brought against the Westboro Baptist Church for anti-gay demonstrations at the funeral of an American veteran. Upholding the group's right to protest, Chief Justice John Roberts wrote that although speech can "inflict great pain," "we cannot react to that pain by punishing the speaker." Similarly, it may argue that although posting revenge porn causes emotional distress, this is not enough of a reason to limit the speech.

There are also some serious practical problems with the language in the proposed bill, which may "chill" valuable speech -- another red flag for our highest justices. Fear of legal ramification may stop someone from distributing media that could have a positive effect, such as revealing that a crime or impropriety has been committed (think adulterous behavior, a la Anthony Weiner). Although this type of dissemination wouldn't be done in order to cause emotional distress, we can imagine someone being hesitant to distribute important photos for fear of breaking the law. Take another potential spillover effect: an actor or actress consents to having a pornographic video taken by a producer and then later decides they don't want the video to be distributed. Then when the video is distributed, the victim can claim it was done to cause them emotional distress. Regardless of how much you are concerned about the chilling effect on the porn and tabloid industries, the Supreme Court will be.

Where the statue may go too far in one direction, it also ironically doesn't go far enough in the other. For one, the statute only contemplates photos taken by the perpetrator. If someone were to send a significant other a personal pornographic photo, which was subsequently distributed, perhaps multiple times, was the law violated? I suspect this would be a gray area, as it would be difficult to place liability on the person who distributes the photo as the photo becomes more and more displaced from the original transmission. For example if Jake sends a photo to his girlfriend Bella who then forwards it to her best friend Ed without telling him the background, should Ed be held liable for distributing the picture?

And then there's the problem of motive. There are many reasons, other than inflicting emotional distress that may lead someone to post a pornographic photo: bragging rights, compensation, or as a joke even. Distribution for these motives would not constitute a crime because the intent may not have been "to cause serious emotional distress," but it could certainly still create similar emotional effects on a victim.

Lastly, the criterion of "emotional distress" does not take into consideration other kinds of harm that revenge porn may cause. A victim can be severely disadvantaged in getting a job after pornographic pictures have been distributed. Revenge porn may also have adverse reputational effects or even constitute harassment. Such repercussions may very well follow a victim for years.

We do, thankfully, have several torts (civil as opposed to criminal remedies) that could cover these kinds of effects. You can sue someone and recoup damages for "tortious interference of contract," "infliction of emotional distress", and even the tort of "false light" (defamation for a non-public figure). While it is tempting then to leave it to the civil system, that just won't do either. Although victims of revenge porn can seek justice through the tort system, it requires money, time, and can be quite embarrassing. I suspect this is the reason that CA and NJ have contemplated making revenge porn a crime in the first place. Unfortunately, they have potentially overreached, exposing themselves to First Amendment infringement, and at the same time not reached far enough by creating loopholes around origin, motive, and effect.

I applaud California for attempting to criminalize a very real problem and something that honestly has no place in our society. However, this attempt is not good enough; we need to go back to the drawing board.

Suneal Bedi is a graduate of Harvard Law School.