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Problems with Maryland’s “Revenge Porn” Law

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By Maya Kushner, Esq.

Taking nude photographs and sharing them with your partner may be a fun way to express yourself or add variety to your relationship, but when these photographs remain in the hands of an ex-lover, it may have dire consequences. An ex-boyfriend or ex-girlfriend angry with the fact that the relationship has ended, may post these private photographs online for the world to see known as “Revenge Porn.” A 2013 study, which included over 1,000 people ages 18-54, revealed that 1 in 10 ex-partners have threatened that they would expose risqué photos of their ex online, with nearly 60% of these threats actually carried out.

Non-consensual dissemination of nude images and videos may take many forms. Cases where images are obtained unlawfully, such as by hacking into one’s computer, are covered by federal and states laws prohibiting theft and unauthorized access to computer files. But what about cases where you gave someone a photo voluntarily, but didn’t expect it to be plastered all over the Internet later? Legislatures across the country are now attempting to address this growing problem by enacting “revenge porn” laws.

Revenge Porn Law: Md. Code § 3-809

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, and other states have introduced bills to follow suit. Maryland’s statute, codified in Md. Code § 3-809 went into effect on October 1, 2014.

Revenge PornBut while these much-needed laws seek to prevent and remedy the heinous act of non-consensual dissemination of nude images, the laws have many pitfalls. From a pragmatic standpoint, victims may find that these laws are too narrow, and cover only very specific situations. While some states have fairly broad laws, many will prosecute cases only if, for example, the victim and perpetrator were previously involved in an intimate relationship, or if the perpetrator acted with the express desire to cause emotional distress to the victim.

Such narrowly-written statutes, including Maryland’s, will leave the perpetrators in the following examples unpunished:

  • Fraternity members who take indecent photos of intoxicated unconscious women in their “frat house” and post those images on the Internet for their own entertainment or entertainment of others.
  • A police officer who obtains “naked selfies” from the phone of an arrestee and then forwards these photos to colleagues or posts them on the Internet because of a fetish, or to gain a certain reputation among his colleagues.
  • When for purposes of financial gain, a man sells nude photos of his ex-girlfriend to a website that collects such images.

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 state “revenge porn” laws as currently written will withstand court challenges, because they violate the Constitution’s prohibition against curtailing the freedom of speech under the First Amendment. In essence, such laws regulate speech by outlawing specific content, and content-based prohibitions on speech are seldom found legal, even when the type of speech that is prohibited is offensive. For example, the Supreme Court has struck down as unconstitutional laws that prohibited: burning American flags (Texas v. Johnson, 1989), burning crosses in front of houses occupied by African Americans (R.A.V. v. St. Paul, 1992), and creating and viewing simulated child pornography (Ashcroft v. Free Speech Coalition, 2002), because the laws infringed upon the freedom of speech.

Revenge Porn and the First Amendment

The Court’s reasoning is always the same: “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). “Speech remains protected even when it may ‘stir people to action,’ ‘move them to tears,’ or ‘inflict great pain.'” Snyder v. Phillips, 131 S. Ct. 1207, 1220 (2011).

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. Emdenlaw is at the forefront of this new area of law and is currently litigating the constitutionality of the Maryland “revenge porn” law.

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