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- Title
CRIMINALIZATION IN CONTEXT: INVOLUNTARINESS, OBSCENITY, AND THE FIRST AMENDMENT.
- Authors
Barmore, Cynthia
- Abstract
"Revenge porn," referring to the distribution of sexually explicit images without the consent of those featured, is a growing problem in the United States. New Jersey and California were the first states to criminalize the practice, but state legislatures around the country have been passing and considering similar laws in recent months. Proponents of legislation, however, are confronting critics who protest that the First Amendment precludes criminal liability for distributing lawfully acquired true material. This Note provides the first in-depth analysis of how obscenity law can and should be used to criminalize revenge porn within the boundaries of the First Amendment. While no state legislature has characterized revenge porn as obscenity, this Note argues they should because the obscenity context provides the greatest insulation from a First Amendment challenge. If drafted to prohibit obscenity, such laws would enable states to robustly and constitutionally criminalize revenge porn, even when the photographer is the person objecting to distribution or the distributor acts without intent to cause serious emotional distress. The hope is this Note will guide legislatures to draft constitutionally responsible legislation to combat revenge porn.
- Subjects
UNITED States; CRIMINAL law; REVENGE; PORNOGRAPHY laws; UNITED States. Constitution. 1st Amendment; CONSENT (Law); OBSCENITY (Law); STATE laws; CHILD pornography; U.S. states; LAW
- Publication
Stanford Law Review, 2015, Vol 67, Issue 2, p447
- ISSN
0038-9765
- Publication type
Article