ANOTHER DAY, Another Proposed Revenge-Porn Statute.

A prosecutor asked me recently whether I might be willing to work with legislators to write a revenge-porn statute that would pass First Amendment muster. I replied that I would, but that I didn’t think it could be done. . . .

Advocates of revenge porn criminalization have latched gleefully onto Eugene Volokh’s suggestion that “Historically and traditionally, such depictions would likely have been seen as unprotected obscenity” without considering the endgame of the parenthetical that follows: “(likely alongside many consensual depictions of nudity).”

The zealots—Mary Anne Franks and Danielle Citron chief among them—would throw out the baby (consensual depictions of nudity) with the bathwater (nonconsensual depictions of nudity). If the image is obscene when Jane takes it of Joe, it is obscene whether Joe has consented or not.