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Is ‘Revenge Porn’ Protected Free Speech?

by Countable | 12.13.18

What’s the story?

  • The Texas Court of Criminal Appeals will decide whether “revenge porn” should be punishable by law in the Lone Star State.
  • “Revenge porn” is sharing sexually explicit images or videos of a person without their consent, typically by a former partner.
  • 40 states and Washington D.C. currently have revenge porn laws.

What is the legal challenge in Texas?

  • Three years ago, Texas passed – with rare bipartisan support – a bill that criminalized revenge porn. But a state appeals court ruled in April that the law was unconstitutional, writing:
“It violates rights of too many third parties by restricting more speech than the [U.S.] Constitution permits.”

What are both sides saying?

  • Congresswoman-elect Sylvia Garcia (D), who authored the bill as a state senator, defended its importance:
“The law is about a horrific practice that is about victimization, not speech,” Garcia said. “The law was crafted carefully to focus on only the worst and verifiable behavior that sexually defames its victims.”
  • Attorney Mark Bennett, who is defending a man charged with violating the law after posting a nude photo of an ex, said the statue is a clear violation of free speech rights.
“We engage in lots of harmful speech, and it’s constitutionally protected,” Bennett said. “If a statute restricts a real and substantial amount of protected speech, then it’s void.”
  • The Office of the State Prosecuting Attorney, which is defending the law, disagrees.
  • “There is no ‘core political speech’ at risk here. Common sense dictates that the conduct prohibited by the statute — violations of privacy of the most intimate kind — is not necessary or even helpful to a vibrant democracy,” said John Messinger, an attorney for the state.
“The Legislature determined that ‘revenge porn’ and the like leads to emotional trauma, threats of violence, and even suicide, and it passed a law to comprehensively address this serious problem. By any standard, the statute is a constitutional act of representative democracy.”

What do you think?

Is revenge porn protected free speech? Take action above, then share your thoughts below.

—Josh Herman

(Photo Credit: iStockphoto.com / scyther5)

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