When Revenge Porn and the First Amendment Collide

Sometimes referred to as “revenge porn” or “nonconsensual pornography,” the act of sharing intimate images of another without their consent has the potential to create both criminal and civil penalties in California.

Civil claims, governed by California Civil Code section 1708.85, may be sought when a photograph or video exposes any portion of the genitals, any portion of the female breast below the top of the areola, or shows an individual engaged in a sex act. The potential for liability arises when the intimate images are shared without consent, there is a reasonable expectation the material would remain private, and the victim suffers general or special damages as outlined in the statute.

However, the law also contains affirmative defenses that protect against liability for the publication of intimate images that otherwise meet the requirements of the statute. One such exception is where “the distributed material constitutes a matter of public concern.” Civ. Code §1708.85(c)(4).But why did the legislature include such an exception, and when would an intimate image be held to be “of public concern”?

Revenge Porn and the First Amendment

The roots of this exception can be found in First Amendment jurisprudence. “Paintings, photographs, prints and sculptures always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.”

White v. City of Sparks (2007) 500 F.3d 953, 956 (cleaned up). Laws restricting the publication of photographs may infringe on First Amendment activity, and, therefore, must “be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of the press and the press.” Gionfriddo v. Major League Baseball, (2001) 94 Cal. App. 4th 400, 409 (quoting Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228). These First Amendment concerns serve as the backdrop for California Civil Code section 1708.85(c)(4)’s protection for images that are matters of public concern.

Non Consensual Pornography and the First Amendment

This is not the first time this conflict has appeared in the law. California has long allowed a cause of action for invasion of privacy by public disclosure of private facts, but as with the “revenge porn statute,” this cause of action only pertains to matters “not of legitimate public concern.” Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.

The California Supreme Court recognized in this context that whether something is newsworthy and thus of legitimate public concern “inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment of the United States Constitution.” Id. at 215. And where the news is involved, that something could have been edited to exclude private facts or made less intrusive while still conveying the same information “is not determinative.” Id. at 229. “The courts do not, and constitutionally could not, sit as superior editors of the press.” Id.

Revenge Porn Legislation and the First Amendment

So when does an intimate image become newsworthy, and preclude revenge porn liability for the publisher? Must the image depict a celebrity or public figure, or merely subject matter in which the public is interested? What about if it shows an illegal act? What if it shows an affair by a person in power? What if it demonstrates an abuse of public office? California courts are currently considering these issue on a variety of fronts, and more answers should emerge in the coming months and years, as revenge porn cases are litigated.

If you are considering filing a non consensual pornography lawsuit, make sure you consult with an first amendment attorney California who has the experience necessary to flag all potential First Amendment concerns and possible defenses, prior to taking action.

Our first amendment lawyer at Dhillon Law Group would welcome the opportunity to discuss your “revenge porn” or First Amendment claims with you.

Karin Sweigart handles First Amendment and defamation matters as Counsel at Dhillon Law Group.  


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