Nonconsensual Pornography and the First Amendment: A Case for a New Unprotected Category of Speech

Abstract

Nonconsensual pornography, or the distribution of sexually graphic images of individuals without their consent, is not illegal at the federal level, nor is it illegal in the majority of states. Failure to pass laws prohibiting nonconsensual pornography, commonly referred to as “revenge porn,” leaves many victims without recourse. Opponents of legislation regulating revenge porn claim that it cannot be banned because it constitutes speech that is protected by the First Amendment. This Comment argues that nonconsensual pornography should be considered an unprotected category of speech, which would enable it to be prohibited without triggering First Amendment concerns. The method of regulating revenge porn (i.e., through particular torts or criminal prohibitions) is beyond the scope of this Comment; instead, it focuses on why this speech should be unprotected, opening the door for legislatures to regulate it as they see fit. Nonconsensual pornography should not be protected by the First Amendment because of its similarities to existing unprotected categories of speech: namely, public disclosure of private fact, defamation, and child pornography. Part I presents the three theories often articulated for why the First Amendment protects speech: to create a marketplace of ideas, facilitate participatory democracy, and promote individual autonomy. Part II explains why certain types of speech are unprotected: because their minimal value towards advancing these free speech goals is outweighed by the significant harm they cause. Part III discusses three current unprotected categories: public disclosure of private fact, defamation, and child pornography. For each, it explains why they have been found to be unprotected – balancing their contribution to promoting free speech values against the harms they cause. Part IV argues for revenge porn as a new unprotected category, first defining the parameters of the category, discussing what the category should encompass in order to ensure it is not overbroad. It then highlights nonconsensual pornography’s low free speech value and analogous harms to the existing three categories— showing it is indistinguishable from speech that has already been deemed unprotected