4 ms·

The first amendment wouldn't come into play here. Copyright and consent laws would.

Dracophoenix 5y ago
IANAL. Copyright and all associated rights of a photo/video by default belong to the photographer/videographer. (https://photofocus.com/business/photographer-or-model-who-owns-the-image/ https://photofocus.com/business/photographer-or-model-who-ow...) There are multiple factors that are involved, but generally speaking, consent laws end at the production of the photo/video. Distribution falls under copyright. Unless the subject was surreptitiously recorded with the intent of distribution or blackmail or was trespassed upon for the recording to be made, there is no copyright or consent violation. And yes, the First Amendment does apply. In fact, there have been cases where such laws have been struck down on the basis of the First Amendment (https://thehill.com/changing-america/respect/equality/475968-minnesota-strikes-down-revenge-porn-law https://thehill.com/changing-america/respect/equality/475968...).
- rectang 5y ago
  There has long been a debate in the judiciary about the extent to which there exists a privacy carveout in First Amendment rights against disclosure of private information. What this means is that depending on judicial philosophy, either any such law must be carefully tailored (which seems reasonable and desirable), or any such law is inherently unconstitutional (which seems to me to offend common sense): https://mtsu.edu/first-amendment/article/1532/revenge-pornography https://mtsu.edu/first-amendment/article/1532/revenge-pornog... > Under current First Amendment guidelines, any laws regulating revenge pornography would have to be narrowly drawn and made in pursuit of a “compelling state interest.” Unfortunately, I agree with tiahura that there's little question how the current SCOTUS majority would rule — it's unlikely that they will find a "compelling state interest" in protecting the victims of revenge porn. The result will be that any victim without the resources and circumstances to bring and win a civil suit will be SOL.
  - Dracophoenix 5y ago
    Whether there is a debate or not is not what I was addressing. I'm simply pointing out that, under current Federal law, that's not the case. But If you want my opinion as an individual, I wouldn't agree with a privacy carveout. Firstly, because "revenge porn" doesn't qualify under currently prescribed limitations (defamation, incitement to imminent lawless action, obscenity, "fighting words", etc.) and I'm skeptical of adding any more. Secondly, most "revenge porn" legislation is overbroad and does not require a mens rea to prosecute. They are strict liability laws in all but name. They amount to prior restraint and violate the requirements of content neutrality and strict scrutiny towards limiting speech. Thirdly, these laws can be used to silence journalists reporting on relevant events (such as the Katie Hill debacle). "Revenge porn" laws do nothing but coerce individuals into becoming bearers of secrets. Even if they had no interest in doing so to begin with. I would also like to add that not every person charged under "revenge porn" laws is the stereotypical ex-boyfriend uploading sex tapes to Pornhub. It's in situation like Bethany Austin's where rights are needed most. https://www.cato.org/blog/picture-worth-thousand-words-prison-sentence https://www.cato.org/blog/picture-worth-thousand-words-priso...
    - rectang 5y ago
      Do you support any consequences for revenge porn?
      - Dracophoenix 5y ago
        Before one can answer that, one would have to know what a proper legal definition of "revenge porn" is. If you're referring to today's overbroad interpretation that has swept legislatures across the country, then I would say there should be no legal consequences at all. I'm firmly convinced those laws should be repealed and the cases involved reheard. However, if you're referring to something much narrower and applicable with in the framework of the First Amendment as it is currently, then I could consider a limited and proportionate civil fine appropriate.
        rectang 5y ago
- etchalon 5y ago
  I'm not sure how you reached the conclusion the first amendment applied. The MA SC ruled, not that Casillas had a first amendment right to post "revenge porn", but that the law, as drafted, was too broad. We have insanely well established laws and precedent regarding expectations of privacy, and laws regarding two party consent. Other states have successfully narrow laws (see CA). The First Amendment thing is red herring nonsense, sadly boosted by one zealous and incompetent legislature.

IANAL. Copyright and all associated rights of a photo/video by default belong to the photographer/videographer. (https://photofocus.com/business/photographer-or-model-who-owns-the-image/ https://photofocus.com/business/photographer-or-model-who-ow...) There are multiple factors that are involved, but generally speaking, consent laws end at the production of the photo/video. Distribution falls under copyright. Unless the subject was surreptitiously recorded with the intent of distribution or blackmail or was trespassed upon for the recording to be made, there is no copyright or consent violation. And yes, the First Amendment does apply. In fact, there have been cases where such laws have been struck down on the basis of the First Amendment (https://thehill.com/changing-america/respect/equality/475968-minnesota-strikes-down-revenge-porn-law https://thehill.com/changing-america/respect/equality/475968...).

rectang 5y ago
There has long been a debate in the judiciary about the extent to which there exists a privacy carveout in First Amendment rights against disclosure of private information. What this means is that depending on judicial philosophy, either any such law must be carefully tailored (which seems reasonable and desirable), or any such law is inherently unconstitutional (which seems to me to offend common sense): https://mtsu.edu/first-amendment/article/1532/revenge-pornography https://mtsu.edu/first-amendment/article/1532/revenge-pornog... > Under current First Amendment guidelines, any laws regulating revenge pornography would have to be narrowly drawn and made in pursuit of a “compelling state interest.” Unfortunately, I agree with tiahura that there's little question how the current SCOTUS majority would rule — it's unlikely that they will find a "compelling state interest" in protecting the victims of revenge porn. The result will be that any victim without the resources and circumstances to bring and win a civil suit will be SOL.
- Dracophoenix 5y ago
  Whether there is a debate or not is not what I was addressing. I'm simply pointing out that, under current Federal law, that's not the case. But If you want my opinion as an individual, I wouldn't agree with a privacy carveout. Firstly, because "revenge porn" doesn't qualify under currently prescribed limitations (defamation, incitement to imminent lawless action, obscenity, "fighting words", etc.) and I'm skeptical of adding any more. Secondly, most "revenge porn" legislation is overbroad and does not require a mens rea to prosecute. They are strict liability laws in all but name. They amount to prior restraint and violate the requirements of content neutrality and strict scrutiny towards limiting speech. Thirdly, these laws can be used to silence journalists reporting on relevant events (such as the Katie Hill debacle). "Revenge porn" laws do nothing but coerce individuals into becoming bearers of secrets. Even if they had no interest in doing so to begin with. I would also like to add that not every person charged under "revenge porn" laws is the stereotypical ex-boyfriend uploading sex tapes to Pornhub. It's in situation like Bethany Austin's where rights are needed most. https://www.cato.org/blog/picture-worth-thousand-words-prison-sentence https://www.cato.org/blog/picture-worth-thousand-words-priso...
  - rectang 5y ago
    Do you support any consequences for revenge porn?
    - Dracophoenix 5y ago
      Before one can answer that, one would have to know what a proper legal definition of "revenge porn" is. If you're referring to today's overbroad interpretation that has swept legislatures across the country, then I would say there should be no legal consequences at all. I'm firmly convinced those laws should be repealed and the cases involved reheard. However, if you're referring to something much narrower and applicable with in the framework of the First Amendment as it is currently, then I could consider a limited and proportionate civil fine appropriate.
      - rectang 5y ago
etchalon 5y ago
I'm not sure how you reached the conclusion the first amendment applied. The MA SC ruled, not that Casillas had a first amendment right to post "revenge porn", but that the law, as drafted, was too broad. We have insanely well established laws and precedent regarding expectations of privacy, and laws regarding two party consent. Other states have successfully narrow laws (see CA). The First Amendment thing is red herring nonsense, sadly boosted by one zealous and incompetent legislature.