Hell Hath No Fury: Why First Amendment Scrutiny Has Led to Ineffective Revenge Porn Laws, and How to Change the Analytical Argument to Overcome This Issue
Volume 88, No. 1, Fall 2015
By Joseph J. Pangaro, J.D. Candidate, Temple University Beasley School of Law, 2016 [PDF]

“Revenge porn,” a subset of nonconsensual pornography, occurs when one party distributes sexually explicit pictures or videos of another in a public forum without the subject’s consent. This Comment argues that the primary problem with revenge porn is the emotional, mental, and physical harm that posting such content causes to the individuals depicted. Statutes drafted and analyzed based on an idea that the content itself is somehow “more obscene” than other forms of pornography miss the mark and are not likely to survive First Amendment scrutiny. Based on the nature of the harm resulting from posting these images, statutes should instead qualify revenge porn as unprotected speech within the broad category of “fighting words,” and more specifically, as “true threats.” This categorization would allow statutes to be written in broader language that would more effectively address the proliferation of revenge porn.