Fueled by the pandemic, the nonconsensual distribution of sexual images requires federal regulatory solutions.
In late 2020, New York Attorney General Letitia James urged New Yorkers to “protect themselves” against a silent threat escalating across the United States. James was not referencing COVID-19, but another danger exacerbated by pandemic conditions: the nonconsensual distribution of sexually graphic imagery.
As COVID-19 drove people out of public spaces and onto their phones and social media sites, cases of nonconsensual image sharing—also referred to as cyber sexual abuse or revenge porn—“skyrocketed” alongside other forms of domestic abuse. As a result, regulatory gaps in addressing revenge porn have grown more glaring.
Only in the past month has federal law moved toward prohibiting the distribution of revenge porn. Meanwhile, over the last decade, the American Civil Liberties Union (ACLU) has fought to narrow the scope of state statutes that criminalize such imagery. The ACLU has argued that laws aimed at stopping revenge porn tend to have a “chilling effect on free speech rights” protected by the First Amendment of the U.S. Constitution.
Although most states have now passed legislation against sharing revenge porn, the ACLU’s prior litigation has led some states to limit the scope of their protective statutes. Today, state judiciaries remain split as to what level of judicial scrutiny should be applied to test the constitutionality of these laws.
Given the variation between state laws, the recent creation of a federal cause of action for revenge porn victims through the Violence Against Women Reauthorization Act (VAWA) is a promising step forward. But the VAWA is limited in scope, and raises as many questions as it does answers—emphasizing the need for further legal reform and regulatory guidance.
Although nonconsensual sharing of explicit imagery on tech platforms exploded during the pandemic, the problem was already well-entrenched before COVID-19. Over 10.4 million Americans have been threatened or exploited by revenge porn. One out of every twenty-five Americans falls victim to “threats or posts of nearly nude or nude images without their permission.”
And such violations are gendered, with 90 percent of victims identifying as women. Young women are particularly targeted, with about 10 percent of American women under the age of 30 reporting “threats of nonconsensual image sharing.”
Such suffering may motivate some victims to file reports with law enforcement or to sue their abusers—but without a federal statute in place, their existing options to do so are limited.
In 1996, the U.S. Congress attempted to regulate pornographic material on internet platforms through the Communications Decency Act. But the U.S. Supreme Court quickly struck down the Act’s anti-decency provisions as violations of free speech rights.
Still worse, a surviving section of the Act, Section 230, protects websites and service providers from liability for content from users. Platforms have no legal obligation to monitor or remove nonconsensual pornography, unless a separate violation of federal criminal law is also present.
From out of this gap in federal oversight, states have moved to provide victims with ways to legally fight revenge porn exploitation. Forty-six states and the District of Columbia now have statutes “prohibiting the distribution or production on nonconsensual pornography.”
But these laws often face limitations in scope due to previous challenges from an unexpected litigant: the ACLU.
From about 2014 to 2019, the ACLU pushed states to narrow their newly passed revenge porn statutes, potentially creating a high burden of proof for victims. For example, litigation from the ACLU may have prompted Arizona to alter its 2015 revenge porn statute—shifting the state from merely requiring proof that someone intentionally published or shared material, to instead requiring proof of wrongful intent.
Soon afterwards, the ACLU similarly challenged a Rhode Island statute, arguing that even the state’s careful efforts to protect sexual imagery that could serve “the public interest,” such as artistic expression, was not enough to vindicate First Amendment concerns.
Although subsequent state litigation has upheld these narrower statutes as lawful, courts remain divided as to the proper degree of judicial scrutiny for assessing statutes’ constitutionality—with potentially serious implications for victims.
To start, none of the state courts that have examined revenge porn laws have reached a conclusion as to whether or not nonconsensual sexual imagery is protected speech under the First Amendment. This ambiguity has created a fractured landscape for victims’ effective rights. Some state courts recognize a strong, compelling government duty to protect revenge porn victims from the harm imposed by the publicization of any nonconsensual sexual imagery. But other states courts are left free to burden victims with the task of proving their abusers’ malicious intentions.
In applying strict scrutiny to such statutes, state courts in Vermont, Minnesota, and Texas have emphasized the harm imposed by nonconsensual sexual imagery on victims. In doing so, they have recognized that revenge porn statutes lie within a state’s definitive duty to “protect the health and safety of their citizens”—even if such a restriction would normally be precluded by First Amendment protections.
In contrast, the Illinois Supreme Court has applied intermediate scrutiny, based on its holding that revenge porn is a “purely private” matter and not the sort of public concern that justifies an imposition on First Amendment protections. The court also held that the state’s revenge porn statute was “content neutral”—focusing on a person’s intent in disseminating nonconsensual sexual content, rather than the content itself.
The court upheld the statute, in the end—but in doing so, it appeared to avoid grappling with the devastating societal impacts of revenge porn. As a result, victim-litigants in states such as Illinois are burdened with proving that their abusers knew that they did not consent to the distribution of imagery.
In a landmark development earlier this month, Congress reauthorized the Violence Against Women Reauthorization Act (VAWA) of 2021 and added one pathway by which revenge porn victims may seek justice. Under an amendment to VAWA, victims can now sue perpetrators in civil court for knowingly distributing any “intimate visual depiction” of an “identifiable individual.”
But only time will tell if the amendment goes far enough toward combating cyber sexual abuse. Although the amendment does not bar the U.S. Department of Justice or other prosecutors from pursuing enforcement actions, the onus remains on victims to pursue their own costly legal battles. And communication platforms are only potentially liable if they solicit nonconsensual sexual imagery or primarily peddle revenge porn. This standard may exempt larger platforms that often traffic exploitative sexual imagery, but also engage in many other functions.
Finally, the interaction between the VAWA amendment, state laws, and judicial standards remains unclear. If victims were to bring a federal civil action, federal courts may be lenient toward First Amendment defenses. Similar to the state courts, federal court may also split and apply different degrees of scrutiny to the law itself.
Considering the continued escalation of cyber sexual abuse during COVID and the lack of cohesive, compassionate protection for revenge porn victims, comprehensive legal reform and more regulatory guidance remains more crucial than ever.