Introduction

In our increasingly technological society, it seems inevitable that “revenge pornography” – posting of sexually explicit photographs on the internet without the subject’s consent – would become an issue. Sexually explicit images obtained without the depicted person’s consent as well as images consensually obtained within the context of an intimate relationship form the mainstay of “revenge porn.”[1] Posting explicit images without the consent of the person depicted transforms unwilling individuals into sexual entertainment for strangers. Typically, “revenge porn” consists of a vengeful or opportunistic individual uploading an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it.[2]  Given the vicissitudes of the Internet, image can dominate the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers.[3] 

Victims, most of whom are female, often find themselves subjected to harassment, stalking, and threats of sexual assault.[4]  Revenge pornography has resulted in victims losing jobs, being forced to change schools, being passed over for hiring or promotion and experiencing difficulties in personal relationships.[5]

Some scholars have suggested enacting criminal legislation that would criminalize the publication of “any statement concerning the private life or affairs of another, after being requested in writing . . . not to publish such statement” provided the statement does not concern someone’s qualifications for public office or profession or involve a matter of public interest. [6]

Definition of Revenge Porn

Revenge porn, or more accurately nonconsensual pornography, involves the distribution of sexually graphic images of individuals without their consent.[7] This includes images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential relationship (e.g., images consensually given to an intimate partner who later distributes them without consent. [8]

Because the term “revenge porn” is used so frequently as shorthand for all forms of nonconsensual pornography, we will use it interchangeably with nonconsensual porn.[9]

Scope of the Problem

An online study of 3044 adults conducted in 2017 found 12.8% of all participants reported having had a sexually-explicit image of themselves shared without their consent or having been threatened with the same.[10] Of those who reported being threatened with or having had a sexually-explicit image of themselves shared without their consent at some point in their lives, 62.5% were merely threatened and 37.5% were victims of non-consensual pornography.[11] Even more telling, in the same study, 5.2% of all participants reported having shared a sexually-explicit image of someone without their consent at some point in their lives[12]

Progress has been made towards gender equality, however, domestic violence, sexual assault, and sexual harassment remain serious issues and there is a tendency to tolerate, trivialize, or dismiss these harms.[13] Interestingly, men are more likely than women to report being victims of revenge porn. [14]

A study by McAffee, Inc. found that 13% of adults have had their personal content leaked to others without their permission. [15]Additionally, 1 in 10 ex-partners have threatened that they would expose risqué photos of their ex online and these threats have been carried out nearly 60% of the time.[16]

New York’s Proposed Remedy

In 2017, Governor Andrew Cuomo proposed changes to New York law to address “revenge porn.” New York’s proposed law appears to be inspired by the federal Video Voyeurism Prevention Act of 2004 that bans intentionally recording or broadcasting an image of another person in a state of undress without that person’s consent when the person enjoys a reasonable expectation of privacy.[17] In addition, many state voyeurism laws criminalize the viewing or recording of a person’s intimate parts without permission. [18]

In New York, a place and time when a person has a reasonable expectation of privacy means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy. [19]

The governor has proposed four laws. [20] One criminalizes the unlawful publication of sexual images (proposed NY PL § 250.61) and the other three deals with sexual extortion in three degrees (proposed §§ 250.62, 250.63, and 250.64).[21]

The sexual extortion provisions mirror much of the language of New York’s existing extortion law. The proposed definition of Sexual Extortion in the Third Degree (proposed PL § 250.62) is:

“A person is guilty of sexual extortion in the third degree when he or she, with the intent to satisfy, in whole or substantial part his or her own sexual gratification, compels or induces another person to expose his or her sexual or intimate parts or engage in sexual conduct by instilling a fear in him or her that, if the demand is not complied with, the actor will perform an act intended to harm another person with respect to his or her health, safety, business, career, financial condition, reputation or personal relationships.”[22]

This language closely mirrors current New York Laws on extortion[23] and the other degrees vary only due to the age of the victim

The proposal to criminalize the publication of “revenge porn” is contained in the proposed PL § 250.61 (Unlawful publication of sexual images.)

“A person is guilty of unlawful publication of sexual images when he or she, with the intent to harm or cause serious emotional distress to another: (a) publishes, broadcasts, or in any other way disseminates images of the sexual or other intimate parts of a person personally known to them; or (b) compels another to engage in conduct by means of instilling fear that if the demand to engage in such conduct is not complied with, he or she will publish, broadcast, or in any other way disseminate images of the sexual or other intimate parts of another person personally known to them, and the depicted person suffers serious emotional distress as a result of the publication, broadcast or dissemination, or the compulsion thereof, and the publication or broadcast was done without consent of the person.” [24]

The proposed § 250.61 is most open to challenge, however, there are strong defenses for the proposal.

Objections to the Proposed Law

The objection to the proposed law centers on two key prohibitions, namely, the prohibition on publications of images that show sexual exposure or contact, and the dissemination without consent of persons depicted.

Unfortunately, these two key prohibitions arguably implicate the free speech and press guarantees of the First Amendment.[25] These two prohibitions are open to attack as unconstitutional content discrimination, viewpoint discrimination, speaker discrimination, and prior restraint.

Content Based Restriction

A restriction on expression based on the content of that expression (e.g., sexual exposure) is presumptively unconstitutional.[26] Nevertheless, outside of sexually explicit images, many regulations of speech and expression proceed without any strident First Amendment objections, including fraud, trade secrets, and product labeling.[27]

Unless a law can be shown to fit into one of the several historically established exceptions to First Amendment protection, its chances of surviving constitutional objection are slim.[28] “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”[29] “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”^[30]

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits … Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document ‘prescribing limits and declaring that those limits may be passed at pleasure.’”^[31]

The state must show a “long-settled tradition of subjecting that speech to regulation.” ^[32] In Stevens v. United States, there was no tradition of regulating dogfighting videos, laws criminalizing them were invalid.^[33] The Court will likely also refuse to regulate other forms of communications without a tradition of regulation – such as, presumably, internet postings of revenge porn.^[34] The argument is that the statute in Stevens, the New York proposed prohibition of revenge pornography is “presumptively invalid” because it “explicitly regulates expression based on content.”^[35]

“Maybe there are some categories of speech that have been historically unprotected but have not yet been specifically identified or discussed as such in our case law. . .. We need not foreclose the future recognition of such additional categories.”^[36] The New York proposal, however, is still problematic because it specifies the content of the speech as the thing restricted. However, a “G-rated” photo of the target combined with a truthful account would not be violative of the proposed statute. Such posting would not fall under libel because truth is an absolute defense to a libel charge.

The “point of all speech protection … is to shield speech that in someone’s eyes [is] misguided, or even hurtful.”[37] Of course, “the right of free speech is not absolute at all times and under all circumstances.” [38] Content discrimination is permissible when aimed only at the “secondary effects” of the speech. [39]

Fighting words, for example, are categorically excluded from the protection of the First not because their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey.[40]

The New York proposal has singled out an especially offensive mode of expression. [41] The New York Statute has selected for prohibition only a mode of expression that communicate ideas via publication of intimate images obtained under circumstances where one as a reasonable expectation of privacy or are akin to extortion. [42]

The Supreme Court established a test to determine if the legislation is regulating conduct or expression. The regulation (1) must be within the constitutional powers of the government, (2) it must further an important or substantial governmental interest, (3) the government interest must be unrelated to the suppression of free expression, and (4) if the regulation incidentally regulates free expression, then it must not be greater than necessary to further the governmental interest.[43] In other words, it is will not be permitted if it captures otherwise protected speech and or expression.

The Court has made clear that an incidental restriction, unlike a content-based restriction, “need not be the least restrictive or least intrusive means” of furthering a governmental interest. Rather, the restriction must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.’”[44]

An incidental restriction, unlike a content-based restriction, “need not be the least restrictive or least intrusive means” of furthering a governmental interest.[45] Rather, the restriction must be “narrowly tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the . . . regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.'”[46]

In the case of the New York proposed law, the restriction is not on revealing sexually explicit information or allegations about a former romantic partner (or one who has rebuffed the poster’s advances.) Instead, the law only restricts a specific manner of expression. In this case, the sharing of an image to which the poster does not have copyright (e.g. one taken by the person depicted) or one taken under circumstances where has a reasonable expectation of privacy. The law further limits the restriction to cases where the poster has an intent to cause emotional distress to the person depicted be “person personally known” to poster[47] and the depicted person suffers serious emotional distress because of the publication, broadcast or dissemination, or the compulsion thereof,[48] and the publication or broadcast was done without consent of the person.[49]

The Government has a police power to protect the copyrights and privacy rights of the citizenry.[50] Privacy rights and property rights in one’s own image are long recognized and protecting them represents a substantive governmental interest. The interest here is in protecting the privacy right, not preventing the speech which can still occur absent the protected image. [51] The restriction on speech is incidental and narrowed because the proposed law also requires the depicted person to be “personally known” to the poster, the poster intend to inflict emotional distress on the person depicted, and the posting occur without consent of the depicted person.[52]

Viewpoint Restriction

A restriction designed to suppress the publication of negative or unflattering personal information (a “viewpoint”) is presumptively unconstitutional. [53]

Revenge porn, however, might fall within an as-yet undiscovered “historic and traditional” category of speech that is excluded from protection because it does not relate to a matter of public concern. [54] The Supreme Court seems reluctant to find such a new category. [55] The Court has, however, held “where matters of purely private significance are at issue, First Amendment protections are often less rigorous.” [56]

In the case of revenge porn, “privacy concerns might suffice to justify narrow restrictions on clearly defined kinds of speech that very rarely have value – public or private,” such as nude photos or privately created sex videos. [57]

Consent is generally acknowledged to context-specific. Privacy regulation and best practices make clear that permitting an entity to use information in one context does not confer consent to use it in another context without the subject’s permission.[58] For example, consumers routinely voluntarily give private information to banks, creditors and other entities who have a legitimate need for that information. No court has held that such entities can therefore give that information to the public via the internet. Likewise, a person who gives a lover sexually explicit pictures has not given away the right for said lover to use that picture any way they wish, including uploading it to porn sites and distributing it to the original sharer’s family and friends.

In its recent report, “Protecting Consumer Privacy in an Era of Rapid Change,” the Federal Trade Commission (“FTC”) laid out best privacy practices principles for private entities.[59] A key recommendation was the recognition that a consumer’s consent to share information in one context does not translate into consent to share that information in other contexts and where  consumers would not expect their information to be shared with third parties, companies should ask consumers for their permission for such sharing.[60]

The federal Video Voyeurism Prevention Act of 2004 bans intentionally recording or broadcasting an image of another person in a state of undress without that person’s consent when the person enjoys a reasonable expectation of privacy.[61]

Defenses of the Proposed Law

Image as property

The First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer’s entire act without his consent, nor does the Constitution prevent a State from requiring broadcasters to compensate performers.^[62] At the very least, the victims of “revenge porn are not compensated for their “performance.” The law, therefore, recognizes a property right in a “performance.” Criminalization of distribution of images of a performance or the invasion of any other property right is permissible even where there are incidental restrictions on free speech.[63]

The Supreme Court has said that an incidental restriction on speech is constitutional if it is not “greater than necessary to further a substantial governmental interest.”^[64] A regulation may be permitted if it is aimed at ensuring a reasonable time, place and manner restriction, but it cannot silence entirely. If the regulation contains a reasonable time, place and manner restriction, it must be 1) narrow and not restrain otherwise protected speech 2) it must not constitute a total ban. In other words, the speaker must have the opportunity to express themselves somewhere.^[65]

In the instance of the New York proposal one might express themselves without the use of the explicit image, or by obtaining a model release, or by doing so with the reasonable belief that the party depicted would not suffer emotional distress. The restriction is not against saying bad or hurtful things about the depicted party – it is doing so in a specific manner, specifically publishing an intimately revealing image without the consent of the person depicted.^[66]

To this point, a case can be made that this is not regulation based on content but rather a protection of a privacy right. New York’s privacy laws make it a misdemeanor to use, for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.^[67] In the modern, digital age it term “purposes of trade” include using an image to attract Internet traffic or gain views on one’s Tumblr or other “blog” feed or notoriety among one’s social media circle.

In addition to and independent of that right of privacy (which in New York derives from statute), one has a right in the publicity value of one’s image (the right to grant or withhold the exclusive privilege of publishing one’s picture). Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniary worth.[68]

A common law right of publicity cause of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. [69]

In White v. Samsung, the 9^th circuit held that the right of publicity has developed to protect the commercial interest of celebrities in their identities – in effect, a property right in their likeness.[70]  The theory of the right is that a celebrity’s identity has marketplace value and the celebrity has an protectable interest in their identity.[71]  If said identity is commercially exploited, there has been an invasion of a property right (specifically whether or not the celebrity’s “name or likeness” is used.)[72] The definition of “celebrity” is “one who is widely known and of great popular interest.”[73] The act of posting the images in question to the Internet intends to, and in fact does, make the depicted party a “celebrity” as the dictionary defines the term. The depicted party, therefore, has had a definable property right – namely the economic value of their identity – appropriated for the benefit of the poster. The law has long recognized that the criminalization of the uncompensated appropriation of another’s property is properly definable as a criminal offense.

If §§50-51 of the New York Civil Rights law recognize a living person’s image as something that can be “commercially appropriated” then that image must, by definition, be property. If New York were to enact the proposed §§ 250.62-64, recognizing an image as something that can be extorted – this would further raise the implication of a property interest in one’s image.

Indeed, the proposed New York law can be defended on copyright grounds – that the unauthorized distribution of images owned by the depicted party constitute an infringing use case.^[74] Copyright law protects a property interest a creator has in their own work and certainly would apply to a case where one takes a “selfie,” copyright is in the depicted party. In California, a court awarded $450,000 on a copyright infringement claim filed by a woman who shared self-photographs with an ex-lover who then used them to create “revenge porn.”^[75] Here, again, one’s identity has been identified as property. The protection of property from nonconsensual appropriation by another is well within recognized police power of the state and does not violate a First Amendment protection of free speech. By framing the discussion as a protection of a property right in one’s image and identity rather than restricting the right of free expression the New York statute could avoid the primary objection to revenge porn restrictions. The police power of the States is “the authority to provide for the public health, safety, and morals.” ^[76] This “traditional police power of the States” has been “upheld [as] a basis for legislation”^[77]

Privacy Rights

The right to privacy has been recognized by statute in New York for more than a century.[78]  There is no common law right to privacy or publicity in New York, and thus The New York legislature enacted sections 50 and 51 to provide a remedy for such claims.[79] 

The New York legislature enacted sections 50 and 51 of the Civil Rights Law to protect against “nonconsensual commercial appropriations of the name, portrait or picture of a living person.”[80]  This same standard is applied to sexually explicit images in the proposed revenge porn law – it simply expands it to include noncommercial distribution and criminalizes the distribution.

Although New York does not recognize a common law privacy right, it has enacted laws to protect those same rights by statute.[81] The proposed law would, in effect, enact that remainder of the common law right of publicity as applied to internet postings or other distribution of a living person’s sexually explicit likeness.

While not aimed specifically at intimate partners, New York law does recognize privacy rights – even in public settings. For example, employers may not make a video recording of an employee in a restroom, locker room, or room designated by an employer for employees to change their clothes, unless authorized by court order.[82]

Recently, a state appellate court in Tyler, Texas, in its consideration of an appeal by defendant Jordan Bartlett Jones, accused in a civil complaint last year of revealing an explicit image of a woman without consent found the Texas revenge porn law too broadly drawn. The court concluded that the Texas “revenge porn law” is an overbroad protection of privacy because it violates expressive rights of too many third parties.[83] The New York proposal, however, avoids such challenges because it exempts those not personally acquainted with the depicted party.

Striking a Balance between Privacy and Free Speech

New York could sidestep the entire First Amendment objection by enacting the common law right of publicity[84] with exceptions being made for news reports and other reportage of the acts of public figures or for matters of public concern.

Although the common law right of publicity was originally conceived of for celebrities to retain a commercial interest in their public personas, the privacy rights of ordinary, private, citizens should be no less well protected. Of course, such a right as applied to public figures is bounded by constitutional guarantees such that a public official or public figure is prohibited from recovering damages for a defamatory falsehood relating to his official or public conduct unless he proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[85]

Private individuals, however, have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Thus, state interest in compensating injury to the reputation of private individuals is greater than for public officials and public figures, and States may constitutionally allow private individuals to recover damages for defamation based on any standard of care except liability without fault.[86]

Recommendations

If I were to make specific recommendations to the legislature, I would propose the following wording for a potential §250.61:

§ 250.61 Unlawful publication of sexual images.

A person is guilty of unlawful publication of sexual images when he or she: (a) publishes, broadcasts, or in any other way disseminates images of the sexual or other intimate parts of a person personally known to them when the image was created under circumstances where the person depicted had a reasonable expectation of privacy without consent of the person depicted; or (b) publishes, broadcasts, or in any other way disseminates images of the sexual or other intimate parts of a person personally known to them to which they do not hold copyright without consent of the copyright holder; or (c) compels another to engage in conduct by means of instilling fear that if the demand to engage in such conduct is not complied with, he or she will publish, broadcast, or in any other way disseminate images of the sexual or other intimate parts of another person personally known to them and the publication or broadcast is to be done without consent of the person depicted.

Unlawful publication of a sexual image is a class A misdemeanor.

– Proposed § 250.61

The proposed legislation strikes language referring to “emotional distress.” It is irrelevant whether the victim is distressed, a privacy and property protection is not dependent one’s emotional state over the intrusion. Furthermore, striking the language forecloses objections that the restriction is about the content the message conveyed. The reworded proposal deals strictly with protecting privacy and property.

Proposed §250.61(a) recognizes that most “revenge porn” is created in situations where the person depicted had a reasonable expectation of privacy. In criminalizing the invasion of that privacy, the law simply extends the civil recognition of a property right in one’s image[87] to an interest the criminal law also protects.

Proposed §250.61(b) recognizes in the case of a “selfie” the photographer’s property right in the image and the model’s privacy rights are vested in the same individual. Copyrights are long recognized as property – they can be sold, given way or retained for profit – insofar as the state has the right to criminalize the unlawful appropriation of one’s property by another, any alleged intrusion on free speech would be “incidental” at best.

Proposed §250.61(c) essentially applies the extortion law to initiate image distribution and deals with the coercive nature of the threat rather than the message the would-be publisher is attempting to express.

Conclusion

The Governor’s proposed New York Revenge Porn law can be framed as a protection of legitimate property and privacy rights that fall well within the recognized police powers of the State. New York’s proposed revenge porn law will, therefore, likely withstand challenges despite the strong constitutional presumption against viewpoint restrictions because existing law and the nature of the modern digital age imply some property right and commercial value in one’s image (this is explicit as copyright where the person depicted is also the image creator.) The law protects the one’s sole right to exploit this value whether the one achieved fame out of ability, dumb luck, or a combination thereof. The right of publicity developed to protect the commercial interest of individuals in their identities. The theory of the right is that a one’s identity can be valuable in for commercial purpose, and the one has an interest that may be protected from the unauthorized commercial exploitation of that identity, and the common law right of publicity cause of action may be pleaded by alleging: (1) Defendant’s use of Plaintiff’s identity; (2) the appropriation of Plaintiff’s name or likeness to Defendant’s advantage; (3) lack of consent; and (4) resulting injury.

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[1] Frequently Asked Questions – Cyber Civil Rights Initiative, Cyber Civil Rights Initiative (2018), https://www.cybercivilrights.org/faqs/ (last visited Apr 19, 2018).

[2] Id.

[3] Id.

[4] Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 350–54 (2014).

[5] Id.

[6] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 219 (1890).

[7] Keats, supra note 4. at 346

[8] Keats, supra note 4. at 346

[9] Nonconsensual pornography is also sometimes referred to as “revenge porn,” “cyber rape,” or “involuntary porn.” Id.

[10] Cyber Civil Rights Initiative, 2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration 1-9 (2017).

[11] Id.

[12] Id.

[13] Danielle Keats Citron, Law’s Expressive Value in Combating Cyber Gender Harassment, 108 MICH. L. REV. 373, 392–95 (2009); Mary Anne Franks, How to Feel like a Woman, or Why Punishment Is a Drag, 61 UCLA L. REV. 566, 569–72, 580–84 (2014)

[14] McAffee Inc., Lovers Beware: Scorned Exes May Share Intimate Data and Images Online (2013), https://www.mcafee.com/us/about/news/2013/q1/20130204-01.aspx (last visited Apr 19, 2018).

[15] MSI International conducted a total of 1,182 online interviews in the U.S. among adults ages 18-54. Interviews among respondents were split evenly by age and gender and achieved geographic distribution according to the US census. The interviews were conducted from December 14 through December 30, 2012. Id.

[16] Id.

[17][17] 18 U.S.C. § 1801. This statute’s definition of “capture” includes “broadcasting,” which suggests that it could be used to apply to the nonconsensual disclosure of such images. However, the statute’s jurisdiction is very limited, confined to the “the special maritime and territorial jurisdiction of the United States.” Id.

[18] New York Penal Law §§ 250.45, 250.50, 250.55 and 250.60 criminalizes intentionally using or installing, or permitting the utilization or installation of an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a  place and time when such person has a reasonable expectation  of  privacy, without such person’s knowledge or consent.

 See, e.g., Daniel J. Solove & Paul M. Schwartz, Privacy Law Fundamentals (2d ed. 2013)

[19] New York Penal Law §250.40 Unlawful surveillance; definitions.

[20] New York State Executive Budget proposal, Sec. 7, Part F (2018).

[21] Id.

[22] Higher degrees of Sexual Extortion are differentiated solely by the age of the victim. Sexual Extortion in the Second Degree (proposed PL § 250.63) applies to victims less than seventeen (17) years of age. Sexual Extortion in the First Degree (proposed PL § 250.64) applies to victims less than fifteen (15) years of age. Id.

[23] A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will perform any other act which would not in itself materially benefit the actor but which is calculated to harm another person materially with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships. NY PL §155.05(e)(ix)

[24] New York State Executive Budget proposal, supra note 20 at 38

[25] U.S. Const. amend. I.

[26] See, e.g., United States v. Playboy Entm’t Grp., 529 U.S. 803, 811-12 (2000); Sable Commc’ns v. FCC, 492 U.S. 115, 118 (1989); see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”).

[27] Danielle Keats Citron* and Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 349; See also Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1767?74 (2004); Neil Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L. Rev. 1149, 1171 (2005).

[28] See, e.g., United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012); United States v. Stevens, 559 U.S. 460, 468 (2010); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)

[29]  Stevens, 559 U.S. at 470.

[30] Stevens, 559 U.S. at 468 (citing Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002))

[31] Stevens, 559 U.S. at 470 (quoting Marbury v. Madison, 1 Cranch 137, 178 (1803)).

[32] Id. at 469–72.

[33] Id. at 482.

[34]Id The Court relied on the same logic (and cited Stevens) in invalidating a ban on sale of violent video games to minors in Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2732, 2734, 2742 (2011).

[35] Stevens, 559 U.S. at 468.

[36] Id. at 472

[37] Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (quoting Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995)).

[38] Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

[39] R. A. V. v. St. Paul, 505 U.S. 377, 394, 112 S. Ct. 2538, 2549 (1992) (citing see Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986)

[40] R. A. V., 505 U.S. at 393

[41] Id.

[42] See NY PL §155.05(e)

[43] United States v. O’Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 1678-79 (1968)

[44] Id.

[45]Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). 

[46] Id. Ward makes clear that, although both “strict scrutiny” and the “O’Brien test” for incidental restrictions require “narrow tailoring,” “the same degree of tailoring is not required” under the two; under the “O’Brien test,” “least-restrictive-alternative analysis is wholly out of place.” Id. at 798-99 n.6. It is also out of place in applying the Central Hudson commercial speech test.

[47] Proposed §250.61(a)-(b)

[48] Id.

[49] Id.

[50] Barnes v. Glen Theatre, 501 U.S. 560, 569, 111 S. Ct. 2456, 2462 (1991)

[51] Proposed §250.61(a)-(b)

[52] Id.

[53] The consent requirement is arguably viewpoint discrimination because it limits communication to selected viewpoints while criminalizing the rest; in effect permitting positive personal information to be communicated by approved speakers while suppressing disapproved negative private information. See, e.g., Rosenberger, 515 U.S. at 828; see also Wood v. Moss, 134 S. Ct. 2056, 2069 (2014)

[54] John A. Humbach, The Constitution and Revenge Porn, 35 Pace L. Rev. 215, 241

[55] Connick v. Myers, 461 U.S. 138, 147 (1983) (“We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity … .”).

[56] Snyder, 131 S. Ct. at 1215 (2011).

[57] Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws and Cyberstalking, 107 Nw. U. L. Rev. 731, 762 (2013).

[58] Danielle Keats Citron, Law’s Expressive Value in Combating Cyber Gender Harassment, 108 Mich. L. Rev. 373, 392-95 (2009); Mary Anne Franks, How to Feel like a Woman, or Why Punishment Is a Drag, 61 UCLA L. Rev. 566, 569-72, 580-84 (2014).

[59] Fed. Trade Comm’n, Protecting Consumer Privacy in an Era of Rapid Change (2010), available at http://www.ftc.gov/sites/default/files/documents/reports/federal-trade-commission-bureau-consumer-protection-preliminary-ftc-staff-report-protecting- consumer/101201privacyreport.pdf.

[60] Fed. Trade Comm’n, supra not 57 at 55

[61] 18 U.S.C. § 1801. This statute’s definition of “capture” includes “broadcasting,” which suggests that it could be used to apply to the nonconsensual disclosure of such images. However, the statute’s jurisdiction is very limited, confined to the “the special maritime and territorial jurisdiction of the United States.”

[62] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977); O’Brien, 391 U.S. at 382

[63] San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 537 (1987); O’Brien, 391 U.S. at 382

[64] Id.

[65] Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984).

[66] “[T]he validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.” United States v. Edge Broadcast. Co., 509 U.S. 418, 430 (1993).

[67] NY Civ Rights L § 50

[68] Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953) (See, e.g., Wood v. Lucy, Lady Duff Gordon, 222 N.Y. 88, 118 N.E. 214; Madison Square Garden Corp. v. Universal Pictures Co., 255 App.Div. 459, 465, 7 N.Y.S.2d 845; Cf. Liebig’s Extract of Meat Co. v. Liebig Extract Co., 2 Cir., 180 F. 688.)

[69] White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1397 (9th Cir. 1992) (quoting Prosser, Law of Torts (4th ed. 1971) § 117, pp. 804-807)

[70] White, 971 F.2d at 1398

[71] Id.

[72] Id.

[73] Celebrity, The American Heritage Dictionaries of the English Language (5 ed. 2016).

[74] Ann Bartow, Copyright Law and Pornography, 91 OR. L. REV. 1, 44 (2012) (See Blackman v. Hustler Mag., Inc., 800 F.2d 1160, 1161 (D.C. Cir. 1986); Flava Works, Inc. v. Wyche, No. 10 CV 0748, 2010 U.S. Dist. LEXIS 64165, at 1 (N.D. Ill. June 28, 2010); Io Group, Inc. v. Veoh Networks, Inc., No. C06-03926, 2007 U.S. Dist. LEXIS 31639, at 3 (N.D. Cal. Apr. 13, 2007); Nova Prods., Inc. v. Kisma Video, Inc., No. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 U.S. Dist. LEXIS 24171, at 3 (S.D.N.Y. Dec. 1, 2004); Sefton v. Webbworld, Inc., No. 3:00- CV-0042-AH, 2003 U.S. Dist. LEXIS 6431, at 8-9 (N.D. Tex. Apr. 16, 2003); Sefton v. Jew, 204 F.R.D. 104, 107 n.3 (W.D. Tex. 2000); Playboy Enters., Inc. v. Russ Hardenburgh, Inc., 982 F. Supp. 503, 515 (N.D. Ohio 1997). Cf. United States v. Gottesman, 724 F.2d 1517, 1519 (11th Cir. 1984); Brush Creek Media, Inc. v. Boujaklian, No. C-02-3491 EDL, 2002 U.S. Dist. LEXIS 15321, at 16 (N.D. Cal. Aug. 19, 2002))

[75] Jane Doe v. David K. Elam II, No. 2:14-CV-9788 (CD California, 2015)

[76] Barnes, 501 U.S. at 569 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973))

[77] Barnes, 501 U.S. at 569

[78] Burck v. Mars, Inc., 571 F. Supp. 2d 446, 450 (S.D.N.Y. 2008) (See Groden v. Random House, Inc., 61 F.3d 1045, 1048 (2d Cir. 1995).

[79] Groden, 61 F.3d at 1049.

[80] Burck, 571 F. Supp. 2d at 450 (citing Finger v. Omni Publ’ns. Int’l, Ltd., 77 N.Y.2d 138, 141, 566 N.E.2d 141, 564 N.Y.S.2d 1014 (1990); see also Arrington v. New York Times Co., 55 N.Y.2d 433, 439, 434 N.E.2d 1319, 449 N.Y.S.2d 941 (1982))

[81] NY CRL §§50-51

[82] NY Labor Law § 203-c

[83] Ex Parte: Jordan Jones, 12-17-00346-CV (Tex. App. 2017)

[84] See Prosser, Law of Torts (4th ed. 1971) § 117, pp. 804-807

[85] New York Times Co. v. Sullivan, 1964 U.S. LEXIS 1500, 376 U.S. 967, 84 S. Ct. 1130, 12 L. Ed. 2d 83 (1964)

[86] Robert Welch, Inc. v. Gertz, 459 U.S. 1226, 103 S. Ct. 1233, 75 L. Ed. 2d 467, 51 U.S.L.W. 3613 (1983)

[87] NY CRL §§50-51