The
Supreme Court has recently declared that speech is protected by the
First Amendment unless it is a type of communication that has
traditionally been unprotected. If this is the law, then harms will
accumulate and the law will be helpless to remedy them. A recent
illustration is the new phenomenon of “revenge pornography,” which some
states have attempted to prohibit.
These prohibitions restrict
speech on the basis of its content. Content-based restrictions (unless
they fall within one of the categories of unprotected speech) are
invalid unless necessary to a compelling state interest. The state’s
interest in prohibiting revenge pornography, so far from being
compelling, may not even be one that the state is permitted to pursue.
The central harm that such a prohibition aims to prevent is the
acceptance, by the audience of the speech, of the message that this
person is degraded and appropriately humiliated because she once
displayed her naked body to a camera. The harm, in other words,
consists in the acceptance of a viewpoint. Viewpoint-based restrictions
on speech are absolutely forbidden.
Free speech is a complex
cultural formation that aims at a distinctive set of goods. Its rules
must be formulated and reformulated with those specific goods in mind.
Pertinently here, one of those goods is a citizenry with the confidence
to participate in public discussion. Traumatized, stigmatized women are
not the kind of people that a free speech regime aims to create.
Revenge pornography threatens to create a class chronically dogged by a
spoiled social identity, and a much larger class of people who know that
they could be subjected to such treatment without hope of redress.
That state of affairs is directly contrary to the ideal of a regime in
which everyone is empowered to participate in public discourse.
I elaborate in a paper forthcoming in the Emory Law Review, available on SSRN here.