First Amendment 101

Danielle Citron compensates for her ignorance of First Amendment law with her certainty:

Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Slate, All States Should Outlaw Revenge Porn.

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law:

  1. Speech is presumptively protected.
  2. Content-based restrictions on speech are presumptively void.
  3. For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:
    1. Advocacy intended, and likely, to incite imminent lawless action;
    2. Obscenity;
    3. Defamation;
    4. Speech integral to criminal conduct;
    5. So-called “fighting words”;
    6. Child pornography;
    7. Fraud;
    8. True threats; and
    9. Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. ((In fact they are redundant—child pornography is unprotected because it is speech integral to criminal conduct.)) So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category

In her law review article with Mary Anne Franks Citron argues (from Supreme Court dicta and other courts’ opinions) that the Supreme Court might recognize such a category, for example, as Eugene Volokh goofily proposes, by redefining obscenity to eliminate the requirement that the material be of prurient interest, as well as the requirement that the material be utterly without redeeming social interest. ((Citron and Franks cite Volokh’s proposal approvingly even though Volokh notes that his notion of obscenity would render unprotected “many consensual depictions of nudity.” They would cut down every tree in England….))

Indeed the Court might some day recognize a category of unprotected speech that includes revenge porn. ((And perhaps it should. But it’s hard for this First Amendment lawyer to see how an exception could be crafted to exclude from protection revenge porn but not exclude socially desirable communications, such as Volokh’s consensual depictions of nudity.)) How the Supreme Court responds to private images may depend on how the case arrives at the Supreme Court. I can see the court treating the disclosure of consensually made images differently than the nonconsensual making of images. But we’re a long way from there, and while Citron’s certainty may affect the lawmakers whom she is trying to convince to pass revenge porn statutes, it won’t convince the courts that will be hearing the inevitable challenges to those statutes. Those courts are bound by Supreme Court precedent, which contra Citron, does not put revenge porn into any unprotected category.
(See also Scott Greenfield.)

21 responses to “First Amendment 101”

  1. I’m having a hard time reconciling fn1 with what I take is your position on the constitutionality of proposed/enacted revenge porn statutes. CP is speech integral to criminal conduct, therefore refusing constitutional protections for both CP and speech intergral to criminal conduct is redundant. Sensible – but say a statute criminalizes broadcasting, to a public audience, immodest photographs given to you in confidence by the subject of those photographs? Surely this public broadcasting constitutes speech intergral to criminal conduct?

    • Raping children is criminal conduct. If nobody possessed CP, there would be no market for CP and fewer kids would be raped for the camera. That’s why possessing CP is integral to the criminal conduct.

      By contrast, taking or giving immodest photographs is not criminal conduct. You can’t tautologically define the publication of revenge porn as criminal conduct and then justify its criminalization as incident to that criminal conduct.

      • Publication is intergral to the violation of the circumstances confidence under which the photograph was shared, in other words a crime against property similar theft. Compare 18 USC 1832.

  2. Mark,

    There has been at least one instance where SCOTUS faced a false light tort case – Time, Inc. v. Hill 385 U. S. 374 (1967). Being that it is from 1967 I could understand you arguing that it is of only modest relevance under more recent first amendment law, even though that particular case was reversed on lack of actual malice rather than constitutional infirmities of the tort itself.

    However, if false light is in fact still a relevant tort I would think revenge porn would in fact fit in that framework, even if the photos were originally taken with consent.

  3. “If nobody possessed CP, there would be no market for CP and fewer kids would be raped for the camera. ”

    There’s a market for CP???! Evidence in support of that claim is….?

  4. Hulk Hogan’s case against Gawker seems to have depended in part on whether posting the sex tape was protected by the First Amendment because it was considered “newsworthy.” I understand how *reporting* that Hogan had sex with someone else’s wife, and reporting that a tape exists, might be construed as newsworthy, but I fail to see how posting the tape itself can be construed as newsworthy. Do you see a distinction, or are both *reporting* the tape and *showing* the tape protected speech? Thank you, by the way, for your First Amendment 101 explanation of unprotected speech.

    • Hi, Stephen. I apologize for the delayed response. I don’t see a newsworthiness test for the finder of fact to be any sort of protection for free speech. You can find a jury somewhere that thinks that everything is not newsworthy. Aside from “newsworthiness” I see no meaningful First Amendment distinction between describing the tape and showing the tape.

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