Bennett's Flawed Criticism of Citron's Proposed Revenge Porn Restrictions

Over at Slate, Danielle Citron has this article excerpting her recent book, Hate Crimes in Cyberspace. In the article, Citron argues for laws that would criminalize revenge porn -- the nonconsensual sharing of another person's nude images online. Citron points out that these restrictions should only apply in particular circumstances:

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.

Citron continues, providing language for a revenge porn restriction and confronting objections. One possible objection she notes is that there may be First Amendment challenges to the law. Citron argues that these challenges are unlikely to succeed:

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Over at his blog, Defending People, Mark Bennett responds to Citron's article, arguing that she is wrong to dismiss the First Amendment challenges. Here is Bennett's unpleasantly dismissive reply to Citron's argument that revenge porn restrictions will survive First Amendment scrutiny:

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law: 

               1.      Speech is presumptively protected.

               2.      Content-based restrictions on speech are presumptively void.

               3.      For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:

a.       Advocacy intended, and likely, to incite imminent lawless action;

b.      Obscenity;

c.       Defamation;

d.      Speech integral to criminal conduct;

e.       So-called “fighting words”;

f.       Child pornography;

g.      Fraud;

h.      True threats; and

i.        Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category. (Footnote omitted)

Bennett's statement of First Amendment doctrine is a concise outline of some of the law, but it is misleadingly incomplete. While Bennett has accurately described categories of speech that the Supreme Court has deemed "unprotected," there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that "speech on matters of purely private concern" receives "less stringent" protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks's article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

Bennett's criticism misses the mark because he assumes that Citron bears the burden of arguing that revenge porn is unprotected speech. Instead, Citron is arguing is that revenge porn is simply a lesser-protected form of speech. From what I have read in the article (and hope to read in the book), it looks like Citron makes a fairly strong argument that revenge porn fits into the category of speech on matters of purely private concern, and her proposed revenge porn restriction may indeed stand up to First Amendment scrutiny as a result.