Nakedness and Publicity

By Candeub, Adam | Iowa Law Review, May 2019 | Go to article overview

Nakedness and Publicity


Candeub, Adam, Iowa Law Review


I. Introduction

In the late 1800s, Kodak introduced the handheld camera, the first capable of taking "action shots."1 Freed from cumbersome tripod-mounted studio cameras designed for portraiture, photographers could use handheld cameras to capture spontaneous, un-posed events hitherto impossible to record. The contemporaneous development of halftone printing plates allowed newspapers to reproduce and distribute these photographs. Together, these technologies transformed society's sense of physical privacy as reporters began to shadow the everyday lives of the rich, famous, and socially prominent-and newspapers propagated their images across the country.2 This disruption of privacy norms inspired Samuel Warren and Louis Brandeis to propose the first privacy torts,3 or so the story goes.4

In today's world, the smart phone, along with the Internet, disrupts private spaces to a far greater degree than the handheld camera and halftone newspaper printing plate. Smartphones take naked pictures of hospital patients, showering and dressing athletes, and former lovers. The web can distribute these pictures with a speed and efficiency that-to put the matter mildly-surpasses the old Kodak and broadsheet newspaper.

Distributing intimate pictures of former sexual partners without their permission, a problem known as "revenge porn", has received significant attention from legal academics.5 The vast majority of states have outlawed the practice.6 Revenge porn typically includes distribution of intimate self-portraits ("selfies") by those to whom they are given and consensual intimate photography distributed by the individual who takes the picture.7 But, laws criminalizing revenge porn offer victims an expensive, privacy-destroying, and arguably ineffective remedy.

A prominent model law8 contains numerous difficult-to-prove mens rea requirements, suggesting that prosecution will be hard and time-consuming. These mens rea elements are not simply a legislative choice but also can be constitutionally required. For instance, the Vermont Supreme Court has ruled the First Amendment requires that, in order to be constitutional, these statutes' "intent requirement [must] require knowledge of both the fact of disclosing, and the fact of nonconsent."9 Thus, the prosecution must prove knowledge of nonconsent, which often involves difficult evidentiary problems.

More important, this intent requirement allows people to legally reproduce these images if they don't know about the lack of consent when the pictures were taken, especially as section 230 of the Communications Decency Act protects third party distributors. Revenge porn statutes are useless in combatting images that have already "escaped" out into the Internet. In short, these statutes give victims a weak promise of delayed justice, creating piles of embarrassing public records and frustrating any hope for a quick, low-profile resolution-and fail to protect privacy.10

Even more troubling, current First Amendment precedent does not justify revenge pornography laws.11 While some have argued for changes to Supreme Court precedent to expand the non-protected speech categories to include revenge porn,12 these arguments cast too wide a net-a net that will limit expression to which the First Amendment gives undoubted protection. Last, the Vermont Supreme Court, the only top state appellate court to review a revenge porn law, upheld Vermont's law, ruling that it met strict scrutiny.13 This position conflicts with precedent, as discussed below.

This Article is the first to argue for the right of publicity as a remedy to revenge porn and its superiority over other remedies such as criminal law or copyright.14 Publicity rights typically attach to personal attributes, like Greta Garbo's face or Michael Jackson's voice, which have market value.15 While some states extend the right of publicity to non-celebrities, state law tends to do so only in instances in which non-celebrity images are used for commercial gain, such as advertising. …

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