Christian Nisttáhuz, Volume 50 Comment Editor
Volume 50, Book 2
As the rise of social media facilitates the spread of nonconsensual pornography—most commonly known as revenge porn—states have proactively passed laws to address it. But is criminalizing revenge porn the correct approach to overcome it? I argue that, although these laws are essential to protect revenge-porn victims, legislatures should carefully draft legislation to avoid violating citizens’ constitutional rights. In concluding so, I analyze Texas’s Relationship Privacy Act and compare it to the laws that other states have promulgated throughout the years.
Laws addressing revenge porn are important because civil remedies, specifically in Texas, may be inadequate to fully redress victims who have suffered reputational and emotional damages. Nonetheless, a paramount constitutional right comes into play as states draft these statutes: The First Amendment. While the First Amendment does not protect all speech, revenge porn does not fall neatly into one of the traditional categories of unprotected speech. For that reason, when drafting criminal provisions, states should consider: 1) the base elements of the law; 2) the harm-requirement language in the law; 3) the statutory exceptions; and 4) the definitions that supplement the provision.