Friday, September 27, 2013

When the Law Doesn't Keep Up with Life

Legislators can't anticipate everything; in fact, society's best hope sometimes is that legislators are responsive. Often that best hope just isn't enough for the people experiencing the harm caused by the unregulated actions of others.

Such is the case with "revenge porn." According to, "[i]t’s the term for posting sexual photos of people without their consent (often women, often exes)."

California recently passed a bill making "it a misdemeanor offense to post revenge porn only if a prosecutor shows that the poster intended to inflict emotional distress, rather than treating the act of posting a sexual photo without consent as an objectively harmful invasion of privacy." Legislators are attempting to strike a balance between preventing (or perhaps merely punishing) the act and permitting wide exercise of free speech.

Consider, however, the position of a University of Miami law professor:
Consenting to the photo within a private relationship doesn’t meaning consenting to public disclosure. The author, University of Miami law professor Mary Anne Franks, says that when people tell her they oppose it, they often start “waving their hands about free speech. But when you ask them how this violates the First Amendment, they can’t tell you why.”
If your interest in legislation is piqued or you're outraged at the pace of the debate, consider the legislative clinic to sharpen your skills.

Also check out the New York Times article and the ABA Journal article on criminalizing revenge porn.