Revenge porn: With Arizona, 10 states now outlaw such postings

Arizona, which on Wednesday became the 10th state to outlaw so-called “revenge porn,” has one of the strongest such laws in the US, making it a felony to post online images of people who are nude or that are sexually explicit, without getting their consent.

The momentum has gathered quickly, with 27 state legislatures considering – and, in some cases, approving – bills this year to crack down on a phenomenon that often involves photographs or videos taken with consent but then misused after the relationship turns sour.

Advocates for revenge-porn laws say they are glad to see state lawmakers paying attention to the issue, but they also caution that it’s important to craft the wording carefully to ensure that the new laws will be effective and also withstand free-speech and freedom-of-the-press challenges. Not all state lawmakers are doing that well, they say.

At the same time, enough victims must be willing to share their stories as bills are being considered to maintain momentum.

“They’re terrified of having more eyes on their material [posted online without their consent], but unless they show there’s a need for these laws, these bills are going to be dying left and right,” says Holly Jacobs, founder of the End Revenge Porn campaign and the nonprofit Cyber Civil Rights Initiative (CCRI), based in Miami.

Most of the laws are so new that it’s too soon to tell how effectively they will deter revenge porn or enable successful prosecutions. But at least three nonconsensual pornography convictions have resulted from a 2004 New Jersey privacy law, says Mary Anne Franks, a law professor at the University of Miami who has helped draft some of the state statutes in conjunction with CCRI.

Alaska and Texas, along with New Jersey, have laws that can be applied in such cases but haven’t received much publicity, because they weren’t promoted as revenge-porn laws. With such anti-harassment, anti-stalking, and privacy laws, specific revenge-porn laws aren't necessary, say some commentators. 

In addition, California, Idaho, Utah, Virginia, Georgia, and Wisconsin have passed revenge-porn laws since the start of 2013, according to the National Conference of State Legislatures.

Another law is awaiting the governor’s signature in Maryland. And one moving forward in Illinois would make the offense a felony, as do Arizona and Idaho (the other laws typically make the offense a misdemeanor or allow only for civil claims, not criminal charges).

Felony charges are important, Ms. Jacobs says, because, as she learned from her own revenge-porn victimization in Florida, misdemeanor charges sometimes don’t give prosecutors enough authority to gather the type of evidence needed to prove who posted the images.

To keep them narrowly tailored, such laws should have some exceptions, Franks says. For instance, the penalty shouldn’t apply to images that are posted out of concern for the public interest (remember the Anthony Weiner texting scandal?), for law-enforcement reasons, or sent via e-mail to seek help for an individual who may be a victim, she says.

“All of these laws are going to be challenged under the First Amendment,” says Neil Richards, a law professor at Washington University in St. Louis. “The great problem legislatures are facing is that they really want to do good here … and are under pressure to act sweepingly and broadly, but the best thing to do is to act carefully, because you can regulate revenge porn in a way … that respects the ability of major [news outlets] to report the news.”

Arizona’s law does not include a public-interest exception, but does include exceptions for law enforcement, medical treatment, or “images involving voluntary exposure in a public or commercial setting.”

One feature that makes Arizona’s law “conceptually different” and important, Professor Franks says, is that it classifies nonconsensual pornography as a sex offense, while many of the states classify it as disorderly conduct, privacy invasion, or harassment.

Unlike some of the other laws, Arizona’s also does not require proof that the defendant intended to cause emotional distress. That’s good, Franks says, because some people post nonconsensual pornography not out of revenge, but out of a desire to make money or to seek popularity. The fact that the images are out there, “that’s the harm. There shouldn’t have to be an additional motive,” Franks says.

On the federal level, Franks is helping Rep. Jackie Speier (D) of California to draft a bill. They are still getting feedback from major social-media websites about the best way to write rules for the removal of nonconsensual sexual content.

Currently, websites that host revenge-porn content can try to defend themselves under Section 230 of the federal Communications Decency Act, which gives immunity to sites for content created by third parties, as long as it doesn’t infringe intellectual property law or federal criminal law.