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The First Amendment must curb cyberbullying and revenge porn laws

Oct 21, 2013 The First Amendment must curb cyberbullying and revenge porn laws

If we do not protect people’s right to engage in despicable expression, our own rights to engage in what we consider to be legitimate expression is threatened. Therefore, I am a free expression zealot, supporting free expression protection far beyond what the courts have yet been willing to do. As a free expression zealot, I havedefended the Westboro Baptist Church’sright to free expression, numerous libel defendants, members of the adult entertainment industry, and numerous political activists from many wide ranges of the political spectrum.    Criminalizing speech is more onerous than making speech actionable in civil court. Some states have criminal libel laws, which kicks the First Amendment in the groin more than do civil libel laws. Recently, California Governor Jerry Brown — likely to be followed by other states, if we do not put the brakes on it — signed into law a bill makin jailabe so-called "revenge porn", the practice of making public the nude images of people — even bared breasts, which one sees widely in such places as the beaches in France and Italy — who let themselves be photographed without expecting distribution of the images. In California, the following "revenge porn" violation constitutes the misdemeanor of disorderly conduct: "Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress… As used in this paragraph, intimate body part means any portion of the genitals, and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or visible through less than fully opaque clothing." Cal.Penal Code § 647.

Clearly, it is distressing to see or learn of Internet or other public display of one’s nude or semi-nude photos that were intended for such purposes as preserving images of one’s youth, to share with one’s significant other, or to be part of Skype communications between significant others who are separated by long distances. However, the First Amendment means little without substantial teeth. We must err on the side of giving too much rather than too little protection of free speech. Furthermore, what happens when a person agrees to model nude or seminude for a photographer’s artistic purposes, where the photographer obviously is going to share the photos, but then has a change of heart? Why must the photographer have to prove that the model had agreed to be so photographed?

In any event, as a practical note, beware taking photographs of people’s unclothed (and sometimes even clothed, in so-called crotch shots) genitals without getting sufficient documentary and signed proof that the model is at least eighteen years, lest you get snagged in the child pornography laws. 18 U.S. Code  § 2257. In such states as Maryland where the age of consent for sex is under eighteen, it is truly ironic that live lega sexual activity with a seventeen year old does not prevent a prosecution for consensually taking nude photos of the same seventeen year old.

Back to the First Amendment and free expression, social media has provided an additional outlet not only for beneficial communications, but also for harassing and badmouthing communications, also called cyberbullying. When the victim of such communications harms or kills himself or herself, we see calls to punish the people communicating such harassing and badmouthing speech. As awful as such speech can be, the strength of First Amendment and free expression protection is seriously compromised by a default reliance on prosecuting those making such communications. If legal action cannot be taken for such communications, what is the solution? I do not claim any easy answer. I will try to blog on that later. However, a strong First Amendment often comes at a high price. That price is worth it.

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