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48 Loy. L. A. L. Rev. 57 (2014-2015)
Revenge Porn, State Law, and Free Speech

handle is hein.journals/lla48 and id is 63 raw text is: REVENGE PORN, STATE LAW, AND FREE SPEECH Paul J Larkin, Jr.* The ease of access to the Internet, coupled with the modern practice of sharing intimate digital photos between lovers, has given rise to a disturbing new trend known colloquially as revenge porn - that is, the nonconsensual posting of images that were originally given to another with the implied expectation of confidentiality. That act involves a deep personal betrayal and can inflict serious emotional damage on the person whose image has been shared, sometimes resulting in grave consequences to the victim. And once those images reach the Internet, they are often circulated widely; the victims retain no control over who may view or share them. This Article explores the types of laws that victims could use to seek justice, and it identifies relevant hurdles to relief Several state tort laws, such as invasion of privacy, false light portrayal, defamation, and intentional infliction of emotional distress, could be used to combat revenge porn. Contract law may also provide a remedy through breach- of-implied-agreement claims or the collateral doctrine of promissory estoppel. Some states have recently gone so far as to enact criminal statutes penalizing the practice of revenge porn, focusing on the victim's lack of consent. Of course, the mere existence of a criminal law does not guarantee its enforcement, and such laws do not offer victims the possibility of being awarded damages. Moreover, as of yet, there have been no successful prosecutions under these statutes, so we do not know how they will be construed or willfare in court. There are obstacles that a revenge porn victim must overcome. A defendant's likely defense of consent could nullify such claims. In addition, the First Amendment Free Speech Clause will be said to impose an obstacle if a revenge porn victim seeks civil relief or if the government initiates a criminal prosecution. In fact, some would * Senior Legal Research Fellow, The Heritage Foundation; M.P.P. 2010 The George Washington University; J.D. 1980 Stanford Law School; B.A. 1977 Washington & Lee University. The views expressed in this article are the author's own and should not be construed as representing any official position of The Heritage Foundation. Tom Buchanan, Paul Cassell, and Andrew Kloster offered helpful suggestions on an earlier version of this article. Any errors are mine alone.

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