The Misguided Crusade Against Revenge Porn

Recently, a New York Jets linebacker was busted for spreading "revenge porn." But in fighting this heinous trend, are states trampling our inalienable rights?
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Recently, a New York Jets linebacker was busted for spreading "revenge porn." But in fighting this heinous trend, are states trampling our inalienable rights?
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When New York Jets linebacker Jermaine Cunningham was arrested in late December after police responded to a domestic dispute at his home in New Jersey, he was hit with three charges: criminal mischief, illegal transport of a gun, and spreading sexual images. It’s that last charge that has made headlines, because Cunningham had just become the first professional athlete to be nailed for possessing “Revenge Porn,” images taken of a sexual partner consensually, but then distributed to others without their knowledge.

New Jersey is one of the 16 states that have laws against revenge porn, with several larger states like California adopting legislation that specifically addresses cases where a hacker or former partner distributes naked photos of someone who was photographed consensually. But while these laws protect individuals from former lovers (or worse, hackers) who want to harm them in some way, many have been written in a way that might discourage free speech and the dissemination of nude photos. After a revenge porn law was passed in Arizona, the American Civil Liberties Union launched a lawsuit against the state, alleging that the law was too broad for its own good.

“In states like Arizona, the law is so broad that it might be applied to newspapers or media outlets. The Phoenix New Times published work by an artist that featured nudity, and under the Arizona law, that kind of free speech would not be protected,” said Lee Rowland, a staff attorney at the ACLU who is working on the lawsuit against the state. “States should make laws that are clear about when a malicious invasion of privacy is occurring, and not just anyone who shares a nude image.”

For example, under the Arizona law, when disgraced politician Anthony Weiner sent pictures of his penis to Sydney Leathers in 2013, Leathers would have been found guilty of engaging in revenge porn by distributing the photos. But the ACLU contends that Weiner should have had no reasonable expectation of privacy.

“If you send someone you don’t know or barely know a photo of your penis, you shouldn’t have the reasonable expectation that the photo will be kept private,” contends Rowland.

The laws even go so far as to possibly criminalize photos of prisoners in Abu Ghraib or news photography that involves nudity.

Sites like the defunct IsAnyoneUp? clearly violated the rights of individuals by posting naked photos obtained from exes (along with personal information), spurring the intervention by states to create laws that criminalize this type of behavior. But in their rush to punish those that cause serious harm, states could end up seriously curtailing our first amendment right to publish nudity, a right that Maxim holds sacrosanct.  In the case of the Jets’ Cunningham, the prosecutor has yet to release any information about how exactly he violated the law. The specifics of what he did will be important to know – Cunningham might be the first high-profile defendant in a revenge porn case, but he most certainly will not be the last.

Photos by Fabrice Lerouge / Getty Images