By Marc Emden, Esq.

The non-consensual sharing of nude photographs of an ex romantic partner on the Internet is commonly known as revenge pornography, and is a terrible tactic resorted to by spurned ex-lovers. Legislatures across the country are now attempting to address this growing problem by enacting “revenge porn” laws. In 2004, New Jersey became the first state to enact a law that criminalized the non-consensual dissemination of private nude images and videos. Today, 26 states have a “revenge porn” law on the books; Maryland’s statute went into effect on October 1, 2014.

Pictured: An angry woman staring. This represents someone involved with the Revenge Pornography Statute in Maryland.

While these much-need laws seek to prevent and remedy the damaging act of non-consensual dissemination of nude images, the laws have many pitfalls. From a practical standpoint, many victims may find that these laws are too narrow because they cover only very specific situations. Many states will prosecute cases only if, for example, the perpetrator acted with the express desire to cause emotional distress to the victim, which can be difficult to prove. Such narrowly-written statutes, including Maryland’s, will leave the perpetrators unpunished in many cases.

But while victims may find “revenge porn” laws to be under-inclusive, the laws are already too broad from a legal standpoint. Few, if any, of the states’ “revenge porn” laws as currently written would withstand a First Amendment challenge in court. The law treats photography as speech; thus these “revenge porn” laws regulate speech by outlawing the publication of certain nude images. Outlawing speech based on its content is unconstitutional, even when that speech is offensive.

The debate continues and so far there has not been a resolution in the tension between protecting the freedom of speech and protecting victims from non-consensual dissemination of their personal intimate photographs on the Internet. Read our full article about revenge porn laws here.