Over the past decade, forty-six states and the District of Columbia have passed revenge porn laws, which specifically prohibit the “non-consensual dissemination of private sexual images.”
In May 2016, Bethany Austin discovered that her fiance had been unfaithful, so she ended the seven-year relationship and called off their wedding. Her ex-fiance started telling people that she was “crazy.” In response, Austin sent their families a four-page letter containing text messages between her ex-fiance and his mistress, including nude photos of the mistress.
Austin was charged with a felony for violating Illinois’s revenge porn law. In return, she argued that the law was an unconstitutional restriction of her freedom of speech. While the Constitution does indeed protect freedom of speech even when it is “offensive or disagreeable,” there are very clear exceptions to that rule such as threats, incitement of violence and public disclosure of private information.
Two years after Austin was arrested, the Illinois trial court dismissed the charge, but the Illinois Supreme Court reversed its decision and ruled that distributing sexual images without permission was not constitutionally protected free speech.
“Viewed as a privacy regulation, it’s similar to laws prohibiting the unauthorized disclosure of other forms of private information, such as medical records, biometric data, or Social Security numbers,” the court said.
In stark contrast, a Minnesota court of appeals ruled this week that the revenge porn law was unconstitutional and violated First Amendment rights. Asserting that intent of harm is required for punishment.
Mary Anne Franks, president of the Cyber Civil Rights Initiative who backed the revenge porn law called the Minnesota ruling a “very serious mistake” that “fundamentally misunderstands the nature of the abuse” because most non-consensual porn cases do not involve someone trying to harm the victim.
“Sometimes it is an ex-boyfriend trying to destroy the life of his former partner, but the vast majority of cases is because people want to make money or engage in voyeurism or for a number of reasons that don’t involve harassing the victim,” she said. “You need a non-consensual pornography law to cover the gap between harassment and privacy violations.”
