What Comes Off, Comes Back to Burn: Revenge Pornography as the Hot New Flame and How it Applies to the First Amendment and Privacy Law

I. INTRODUCTIONTwenty-one percent of teenage girls and thirty-nine percent of teenage boys have sent sexually suggestive content to someone they wanted to have a sexual relationship with or wanted to date.1 Moreover, eighty-three percent of young adult women and seventy-five percent of young adult men have sent such material to a boyfriend or girlfriend.2 With the breadth of Internet-enabled technology available today, widespread dissemination of words and pictures has never been faster or easier.3 As technology makes it increasingly easier to send and receive information-via smartphones, online businesses, and social media-it has also become easier to distribute sexually explicit photographs of an individual without his or her consent.4Although the First Amendment to the United States Constitution protects an individual citizen's right to exercise free speech, the Supreme Court has ruled that obscenity is not protected speech and, subsequently, has established a test to classify obscene material.5 Despite this ruling, legal ramifications for revenge pornography-a form of sexual assault involving the unauthorized distribution on the Internet of intimate photographs and videos of a nude individual posing or engaging in various sexual activities-are absent from federal law, such that the First Amendment currently clothes perpetrators of revenge pornography with impunity.6 However, the common law right to privacy encompasses potential causes of action for victims of revenge pornography.7This Comment argues that revenge pornography is not protected by the First Amendment and, further, is subject to privacy laws.8 Part II of this Comment summarizes the history of the First Amendment and its obscenity doctrine, as well as privacy laws that pertain to revenge pornography on the Internet.9 Part III argues that revenge pornography, unlike permissible forms of pornography, is a form of obscenity under Miller v. California and therefore is not entitled to First Amendment protection.10 Additionally, Part III contends that there are several common law causes of action for revenge pornography under right to privacy claims.11 Part IV urges the interpretation of revenge pornography as obscene under the current First Amendment obscenity doctrine and recommends the enactment of state and federal laws banning revenge pornography because of its injurious effects on individuals and society.12 Part V concludes that because revenge pornography satisfies the Miller obscenity test and postings on the Internet are considered interstate commerce, Congress and state legislatures should revise current obscenity statutes or create new ones; further, the federal and state courts should interpret these laws so as to provide sufficient remedies for the harm caused by the dissemination of revenge pornography and to make clear that such speech is not encapsulated in the right to free speech.13II. BACKGROUNDA. The First Amendment to the United States Constitution1. Obscenity and the Right to Free SpeechThe First Amendment to the United States Constitution provides that citizens, not the government, have the absolute right to propagate a multitude of ideas, regardless of whether these ideas are contrary to the government's beliefs.14 However, in Breard v. City of Alexandria, the Court held that all types and all forms of speech are not necessarily protected under the First Amendment.15 For example, the Court in Miller v. California held that obscenity and obscene speech are exceptions to constitutional protection.16 Obscenity tests serve as a method of determining whether certain materials involving sexual conduct, as forms of expression and speech, are permissible and, thus, protected by the Constitution's right to free speech guarantee.17 Notwithstanding, the Supreme Court has struggled to formulate and apply concrete standards when addressing "the intractable obscenity problem."18Still, the Court in Roth v. …