“But, I Didn’t Mean to Hurt You”: Why the First Amendment Does Not Require Intent-to-Harm Provisions in Criminal “Revenge Porn” Laws

Abstract

Free speech protection under the First Amendment to the U.S. Constitution is arguably one of the most essential rights that U.S. citizens hold. Since the founding of this country, a tension has existed between the government’s protection of free speech and an individual’s right to privacy. The Internet exacerbated this tension by providing an accessible avenue for the dissemination of private images for all to see. Nonconsensual pornography and “revenge porn” are at the epicenter of this issue. Today, one in twelve adults in the United States will become a victim of nonconsensual pornography during their lifetime. Despite the pervasive role of nonconsensual pornography in modern society, most existing state criminal laws are narrowly drawn and, as a result, fail to protect most victims from these devastating attacks. State efforts to pass statutes that provide more comprehensive protections to victims’ privacy are routinely frustrated by constitutional challenges under the First Amendment. This Note discusses the two most prominent types of criminal nonconsensual pornography laws—harassment-based statutes and privacy-based statutes— and explores the intersection between these laws and the First Amendment. This Note argues that, to sufficiently protect all victims of nonconsensual pornography, states must adopt privacy-based laws with no intent-to-harm provisions. Finally, this Note argues that these privacy-based statutes do not violate the Constitution, because they make permissible content-neutral restrictions on speech that should survive intermediate scrutiny when challenged under the First Amendment.