P. Henry Revenge Pornography Capstone

Should the Federal Government Adopt Legislation Similar to Texas’s Relationship Privacy Act?

Prepared By: Perdita Henry Submitted To: Elizabeth Eakman Re CAPS: 4360.20 Fall 2015

ABSTRACT: Revenge porn has been creeping around the fringe of society since Hustler’s 1980 pictorial called ‘Beaver Hunt,’ but since the dawning of the internet it has become a widespread problem affecting many women and men. In order to combat this problem several states have drafted criminal and/or civil laws to protect and empower those facing this invasion of privacy, and in Texas Senator Sylvia Garcia introduced and helped ratify S.B. 1135, The Relationship Privacy Act. However, some opponents argue that any criminal law addressing non-consensual pornography impedes on first amendment rights, while others argue that current civil laws are enough to address this problem. Through research, interviews, and expert analysis I will examine each argument and determine whether or not the federal government should adopt The Relationship Privacy Act.

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Contents

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My air conditioner was broken. That was the only reason that the windows of my apartment were open. I didn’t feel all that secure even with my trusty noise maker, my dog, taking her fifth siesta of the evening nearby. I was anxious because earlier in the day I had emailed Paul Elam, the nation’s most-prominent Men’s Rights Activist about a possible interview on the topic of revenge porn. After his reply stating that he would be happy to speak with me, I did some internet digging and came across a profile on him. What had I just done? This is a man that states “fuck feminists” on his twitter page, has been said to have numerous problems with women, a rabid following of men that feel the same way, and have been said to have harassed women writers just because they did not agree with them.

How had my college capstone paper suddenly become an issue that made me concerned about my own privacy and safety?

Revenge porn, or nonconsensual pornography as activists prefer, is a term that is still fairly new to the English lexicon; however, this is not a new concept. In 1980 “Hustler’s ‘Beaver Hunt’ published nude photos of an unwilling and unknown woman,” and by 2008 blogs and websites began to appear pledging their allegiance to the genre. Since then revenge porn has popped up over and over again on news and magazine websites like Jezebel, The Atlantic, and ABC News. Revenge porn is the distribution of nude/sexually explicit photos and/or videos of an individual without their consent. Typically, what happens is that once a relationship ends, and one party is unhappy with their ex-lover, they decide that the best way to make their dissatisfaction known is to distribute explicit images online. For victims, it is all downhill from there. There are conversations and debates about why this was happening to them, the issues they faced when they found out that their privacy invaded, and the horror of having their images posted all over the internet, and the idea of having awkward conversations with employers, family, significant others. Reaching out to law enforcement only to be met with baffled looks, superior smirks and amused titillation, to be told that what is happening to them is not a crime and there is nothing that they can do to help. Meanwhile, their images are being examined by faceless men, their bodies being ridiculed, their personhood being reduced to ashes with every additional keystroke. Helplessness and anxiety wrap their blunted and meaty fingers around the necks 3

of these women, as they realize that their images are accompanied by addresses, phone numbers, places of employment, and social media links. The threats roll in via phone and social media. Nowhere is safe.

At some point victims think that if the police can’t help them maybe lawyers can, and this is where things get even more interesting. Out of all 50 states only 25 of them have revenge porn legislation. So everything that happens from this point forward in the victims’ journey is dependent on what legal recourse is available to her. In the 25 states without legislation that addresses revenge porn, a lawyer may suggest that she pursue a civil case against the person who posted the intimate images. Civil court means she would have the opportunity to win monetary damages against the person, but the actual removal of the images from various websites is uncertain. Another option is to file a copyright infringement claim. Of course she would have to apply for a federal copyright, pay the associated fees, send all of the images in – which will not be returned – and wait to see if the Library of Congress will accept her claim. If they do, she then can demand that all websites posting her copyrighted images remove them immediately. But since we are dealing with the internet nothing every really goes away, so this would be a fight for the long haul, once the images are removed from one site they are likely to pop up again somewhere else, meaning that, again, she must have her lawyer send out cease and desist notices. Oh, and did I mention that all copyrighted material is logged into the Library of Congress? This is the place that every copyrighted book, manuscript, recording, photograph, and more, are kept on file forever. Just imagine the things that this library holds, the original script to The Godfather, the famous photograph of JFK Jr. saluting his father’s casket, and now the nude photographs of women who have been victimized by their shitty significant others.

Several states have seen the need for criminal legislation regarding this issue.

Criminal legislation across the 25 states that have decided to take a stand against this type of harassment varies, some classify non-consensual pornography as a misdemeanor, some as a felony, and some like Texas, classify it as both a civil and criminal violation, with varying degrees of punishment. The issue that many legal scholars dispute is that criminal legislation violates the first amendment. This stance gained momentum within the 4

problem of revenge porn when senior staff attorney at the ACLU focusing on First Amendment rights, Lee Rowland, stated publicly that “Just passing a law that says it’s illegal to publish a nude image without consent, that’s not going to pass the courts[.] The terms are so broad it risks making venerable institutions like libraries and photography collectives into criminals for sharing an images of torture at Abu Ghraib or the child being napalmed in Vietnam. Nobody says privacy issues don’t exist — they absolutely do. But there are many places where public interest outweighs harm done” (Inverse). Rowland makes a striking point, but is making the photographic evidence of crimes and historical events the same as using intimate photos as an act of intimidation against someone? The photos taken by soldiers in the scandal of Abu Ghraib were of prisoners that they were torturing and humiliating – in case you forgot America, for the most part, frowns on torture.

Additionally, these photos led to the prosecution of the soldiers who were participating in treating prisoners inhumanly. The photos taken during the Vietnam War, they showed the reality of modern warfare, and gave faces to civilians who were often ignored in government’s war rhetoric. Rowland’s quote strips the context of her examples and has absolutely no relevance to the problem of nonconsensual pornography. Using photographs to create a narrative — in the case of historical events — or as evidence of wrongdoing would not be affected by criminal legislation for the act of taking, stealing, and/or reappropriating intimate photos for the act of harassment, extortion, and stalking.

Essentially, her argument implies that the act of using personal knowledge and evidence of intimate moments is the same as taking photos of historical relevance and should be protected in the same way. That is bullshit. The purpose of publishing photos from the horrors of war is to enlighten the masses to what is happening, while posting nude photos of an ex-lover is to shame a person for whatever the perpetrator believes the victim deserving of. One is completely separate from the other. Last time I checked Time Magazine was not in the business of publishing revenge pornography.

So what exactly is free speech? The first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to 5

assemble, and to petition the government for a redress of grievances.”i However, freedom of speech is about protecting speech, and not all speech is protected. I asked noted professor of law at The University of Miami, Dr. Mary Anne Franks about first amendment concerns, “many critics of revenge porn laws don't understand the First Amendment very well - they seem to think it means that all regulation of expression is ‘censorship.’ Many laws regulate expression in some way: laws relating to fraud, insider trading, conspiracy, threats, voyeurism, identity theft, trade secrets, HIPAA, extortion, child pornography, copyright, just to name a few.” The first amendment concerns seem to stem from the idea that people who participate in revenge porn have the right to say whatever they please about the ex-lovers that they want to humiliate. Additionally, opponents agree that we already have laws that address revenge porn — civil laws — and that these laws are perfectly acceptable. The problem with civil legislation however is that they are not created to address this specific issue, they fail to provide structure that allows victims to have images removed from websites that specialize in this type of content.

This is an especially important aspect of the revenge porn discussion because many of these websites charge victims fees to have their pictures removed. Within many of the academic articles that I read proposing to utilize copyright and tort laws — both forms of civil legislation — there seemed to be an underlying-belief that civil law was serious, but not as serious, as criminal legislation, which led me to wonder, is the civil means of justice just a fall back for things that the criminal courts don’t want to deal with? Franks argues that “Civil remedies often include the possibility of preventing the abuser from distributing the material further and obtaining compensation for the harm they've [inflicted]. What people sometimes forget is that many wrongful acts can be pursued using both criminal and civil approaches - the two are not mutually exclusive. It's odd that some people think that the theoretical availability of civil remedies for nonconsensual pornography means there is no need for criminal laws. That's like saying that wrongful death actions eliminate the need for murder prosecutions.”ii Several of the academic law papers that I read to become more informed on this problem implied that victims simply were not taking full advantage of the

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civil laws available to them, and that these laws could stop the “should we or shouldn’t we conversation” within the law community about this problem.

So there are a lot of questions about the best suited legal means to address this problem, but the underlying problem of revenge porn is rhetoric and society’s insistence that women do not participate in having sexual autonomy. The more information I pursued the more I was bombarded with the fact that women are overwhelmingly targeted by this type of crime. The common narrative is about a women who was in a relationship with someone, typically a boyfriend that she thought she could trust. During the relationship there was a point in which she was asked, or offered to provide nude photos of herself, perhaps they had been apart for some time, or they were sexting each other. After taking the photos and sending them to her lover, they continued on with their relationship, and at some point things turned sour. Eventually, the relationship was broken off and the two go their separate ways. But ultimately, the naughty photos and/or video were made public by the ex-boyfriend. At the end of each article I took a look at the comments section. There were always men and women stating how dumb the women were to share images of themselves. How foolish to believe that their boyfriend wouldn’t share these images. How stupid could they be to think that in today’s world that they could trust someone to extend them privacy? There is the perception that women who participate in sexting got what was coming to them. Never mind the fact that people have been participating in this type of behavior long before the internet was in every home and smartphones were in every hand.

Sociologist Dr. Chauntelle Tibbals explains that “Sexting is an evolution of a collection human behaviors that’ve always been present – the pursuit of physical sexual interaction. Before people were sexting, maybe they were emailing, calling on the phone, visiting on the porch while parents peeked through the curtains, writing letters, sending messages by carrier pigeon, etc etc. What we are seeing is simply a modern, tech-evolved behavior that’s always been present.”iii So the anger and dismissal that I was witnessing seemed more about punishing these women for being sexual, and getting caught, than noting that this type of intimate behaviors have always been around and simply evolved 7

with the times and technology. And that pesky expectation of privacy? Well, everyone is so public now: they share their meal choices, on Instagram, they share their opinions on Twitter, and they post their relationship status on Facebook. No part of your life is private when the saying goes “if there is not photo it didn’t happen.” So why would they be surprised that their explicit pics ended up online? If our courtship behaviors have evolved with technology than I suppose it was only a matter of time that the most private aspects of our sexuality and sexual relationships evolved along with it.

With the dawning of the technology, pornography made the leap from being limited to black and white photos stuffed in a hidey-hole, to a surplus of old Playboy magazines delivered in brown wrapping, to the dusty VHS tapes hidden in the back of a closet, to being at the tips of everyone’s fingertips. Gone are the days of men skulking about in sunglasses and trench coats to attend their local smut dispensary; now every sexual scenario anyone could ever dream of is just a tube site away. With the intersection of pornography and technology we have witnessed porn stars become household names — Jenna Jameson, to Sasha Grey, to James Deen — on to the subsequent celebrity sex tape — Pam and Tommy Lee — and finally, the quest for infamy via sex tape — Kim Kardashian. Of course there is a trickle-down effect in all this, photographs and video technology right there in the palm of a user’s hand makes it easier to for anyone to get in on the action.

Feminist have long disagreed about pornography. Can women who participate in porn actually consent to this form of sex work? Or, are women practicing their right of sexual autonomy by participating in pornography? The answers to these questions depends on who you ask, but I was curious about the terminology of revenge porn, which is mainly used as a vernacular term, while non-consensual pornography is a term preferred by activist.

Both terms signal a problem, but the pornography part bothered me. I pursued several sources to define the term pornography. Google provided the definition “printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate erotic rather than aesthetic or emotional feelings,” while Merriam-Webster describes “the depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction.” The legal definition adds that it is “The representation in books, 8

magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest.” Ok, great. People have numerous ways to get off now with all the ways in which that pornography is available to them. But, the terms used to describe sex crimes are typically misnomers. If pornography is all the things described above, but is being used to label any and all exposed genitalia, revenge porn covertly denies and diminishes the criminal aspect of the act. It’s like calling a child victim of sex trafficking a child prostitute. Children cannot consent to sex, yet the media will often refer to children in these situation as prostitutes. Child pornography is another instance of the crime being made a hazy. We are outraged at the act of child pornography because clearly the child is not a willing participant of their own molestation and repeated abuse as their images are shared like trading cards on the internet. No one thinks that when speaking about pornographic actors that they are participating in an illegal transaction against their will. But there is a benefit to linking an illegal act to the word pornography, as Dr. Tibbals explains, “There is no such thing as “non-consensual porn” or “revenge porn.” Porn is a legal enterprise and a labor negotiation between consenting adults. When people/media use “porn” in conjunction with a[n] illegal enterprise related to privacy violations, entrapment/coercion, sex-related crimes against minors, etc […]; they are muddying the issues and augmenting the harm experienced by survivors of illegal activity, as well as enhancing the stigma and marginalization experienced by sex workers in the adult entertainment industry.”iv Porn, and the women who perform in it, are often seen as downtrodden souls without the wherewithal to hone other talents to make a substantial amount of money. Dr. Franks admits the issue of terminology is “[…] complicated. First, it's not clear that the term does or should imply consent (it certainly doesn't in the context of child porn). Second, and more importantly, it's difficult to find another word that conveys how the material is being distributed for the purpose of sexual entertainment. “Revenge porn" sites directly and explicitly present the most private and intimate moments of a person's life as masturbation material.” The problem with focusing on the alleged masturbatory aspect of this problem is that it intertwines the issues that some feminists have with pornography, along with the idea that revenge porn is actually about sex. Crimes of a sexual nature, specifically rape, are often regarded and widely accepted as a crimes 9

based on power. Why should revenge porn be any different? It may not be based in the physical realm as rape is, but it still uses many of the same themes of power to diminish, and degrade a victim. The war is still being waged over the bodies of women, it’s just gotten technologically advanced.

There is detachment in our society when it comes to sex, and pornography. Porn is not sex. People often confuse the sexual acts that they witness on the screens of their computers, smartphones, and tablets, with sex. There is a vast difference from the sexual acts performed as a job function, and the sex someone has when they are interested in experiencing intimacy. Since sex is not openly spoken about in our culture, pornography seems to have become a euphemism for sex. Dr. Tibbals points out, “I do see as a problem though is a lack of sex education (or even the ability to speak about sex) in our culture contributing to a massive tendency to misappropriate porn as educational. Porn is NOT a sex ed tool, […] it’s [often] the easiest option in a world that can’t speak about sex frankly.

And when people copy what they think they see in porn, especially without having a conversation with their partner first, all sorts of problems can emerge.”

Copy what they see in porn. Is that why we have seen men use the results of sexting as a tool to exert sexual power over women? “You don’t want to be with me anymore. I’ll show you bitch.” With all the conversations being had about revenge porn there was a side that seemed awfully quiet: meninist. There were several instances of men talking about how despicable the act of extorting women or seeking revenge against them by way of shaming them publicly, but what about these men that feel emasculated by the feminist movement and have decided to counter feminist conversation? What do men’s rights activist have to say about revenge porn? Enter Paul Elam, Founder and CEO of prominent men’s rights blog A Voice for Men. I was vaguely aware of the “men’s rights movement,” and from what I understood they sounded like a bunch of whiny-ass men complaining about the fact that women have the right to opt out of motherhood, while they (men) do not have the right to opt out of fatherhood. That lame ass argument was not interesting enough for me to pay much attention to those who consider themselves “meninist.” I had been made specifically aware of Elam during my research of revenge porn, and looked into his website to see if I 10

could find a statement regarding men who already feel disenfranchised by society viewed revenge porn. It was that day that my air conditioner broke down that I sent off an email to him requesting an interview. Honestly, I did not expect a reply, but I had begun the process of vetting him further to find out more about his beliefs. Within eight hours of introducing myself and requesting his comments on the topic of non-consensual pornography, he replied. It wasn’t until after his reply that I finished the Buzzfeed article How Men’s Rights Leader Paul Elam Turned Being A Deadbeat Dad Into A Moneymaking Movementv where I learned about his rise to prominence as a men’s rights blogger, and his deep hatred of feminist. My anxiety was at a maximum and I couldn’t close my damn windows. I didn’t want my womanist/feminist sensibilities to hinder my abilities to write this paper from various points of view. But what women wants to have a conversation with a man who writes things like: “I'd like to make it the objective for the remainder of this month, and all the Octobers that follow, for men who are being attacked and physically abused by women—to beat the living shit out of them. I don't mean subdue them, or deliver an open handed pop on the face to get them to settle down. I mean literally to grab them by the hair and smack their face against the wall till the smugness of beating on someone because you know they won't fight back drains from their nose with a few million red corpuscles.” vi The answer to that question is no woman. No woman in her right mind, wants to go through — let alone consider the possibility of facing — the threats and harassment that have become common place for women online when they write things that certain types of men don’t agree with. There seems to be a war on women and if what I read about Mr. Elam was true, then I had just contacted its leader. How does a womanist/feminist, such as myself, talk to someone who may decide that he dislikes my moxie and sends up the smoke signal to his followers? I am a Black woman, living in a world filled with Ashley’s, Amy’s, and Abby’s. My name is Perdita. I have never met anyone else with that name. There is exactly one actress who shares that name with me, and most of the time people scream out Pongo(!) when I tell them what my name is. Now, there are other women with my name, but we seem to be ladies who are few and far between. The closest I have ever gotten to 11

meeting someone with a name as unusual as mine was a girl name Antigone who was also named after a Shakespearean character. My name makes me easy to find. I had to ask myself was I ready to step into this? After research and contacting people who are used to interviewing people with, shall we say, undesirable views and tactics, I replied to the email and set up the interview with Elam. As the days passed and the interview time crept closer, I resolved to stay away from all of his social media platforms and any articles that had anything to do with him. I wanted answers to my question.

I prepared myself for the possibility that he would be mean to me — if he had done any research on me he might be able to glean where I stood — but, prepared my questions as a journalist should, without bias. I genuinely wanted to know how men felt about this issue, not only because they are often the perpetrators of this crime, but because as quiet as it’s kept they do find themselves victims of this crime as well (how many times have you had a discussion of about dick pics?).

I tried my best not to think of Elam as a boogie man that would find me through cyberspace after our conversation. So I called him. I wish I could say I wasn’t shocked at how our conversation went. The man that I spoke with was pleasant, articulate, and completely forthcoming when answering my questions. Was this the man that wrote about beating the tar out of women? Where was the angry, foaming-at-the-mouth He-Man womanhater? I listened to his comments about how men had come to be victimized by society and seen as scapegoats for women who abused their position in society as the consummate victims. On revenge porn, what Elam said confused me. “I am certainly a men’s rights activist […]. [However,] I am not an advocate for guys being jerk-offs. I don’t think it’s appropriate to take something that is personal and intimate and use it as an act of revenge. […] I wouldn’t hang out with a guy that did that, or with a women.” As our conversation progressed, he made many valid points about how men are victimized and socialized to fit some ideal that allows them to be viewed and blamed for things like domestic violence and sexual assault. How men are automatically punished by the court system when it comes to parental rights and when they are accused of sexual assault. As I listened I could easily make noises of agreement: men are victims of domestic violence, men are socialized not to 12

show feelings, and sometimes men are accused of rape and other crimes they did not commit. So I asked, do you think that revenge porn is a way for men to act out on their feelings of vulnerability in society? “Absolutely, [although] I have to say that I think it is an inappropriate acting out […]. Men are really good at [acting out] in dysfunctional ways, because the healthy ways for [acting out] their anger is not allowed.” But here is the rub, in order to truly agree and join the bandwagon of men’s rights you must — in a metaphor that Elam likes to use ripped from The Matrix — take the red pill and disregard the societal history of patriarchy, the statistical evidence regarding women overwhelmingly being the victims sexual crimes, and as Dr. Franks reminds us, “men dominate lawmaking, law enforcement, the judicial process, and politics, as well as business and technology industries, so their interests dictate what we take seriously as a society.” In reality it’s still a man’s world. But in Mr. Elam’s matrix, it’s a woman’s world and men just live in it.

Ultimately, I believe that revenge porn should be tried as a criminal act. In a society that has statistics that read that “every 9 seconds a woman in the U.S. is beaten or abused;” “that 19.3 million women […] have been stalked in [her] lifetime,” and “1 in 5 women has been raped in [her] lifetime.” The same starling elements of abuse are expanding with the help of technology. I agree completely with Dr. Franks that “victims of nonconsensual pornography benefit from having more, not fewer options, [and] that civil remedies [should be] used wherever possible.” But I disagree with the label of revenge/non-consensual pornography, because naming something pornographic implies consent, and packs ideological beliefs that are often associated with the legal enterprise that is pornography, and should not be associated with criminal acts.

It is wonderful that many states are taking steps to protect citizens of any gender who find themselves in the midst of a devastating breach of privacy. However, there are many questions to be raised when a victim resides in a state that has criminal and civil laws, while the perpetrator lives in a state that does not have any such laws on the books. The federal government must step in to create legislation and protection of victim’s rights nationally, not just the people that are fortunate enough to live in a state that has already thought of a contingency plan. The problem of revenge porn is not a first amendment 13

rights problem, or as simple as the use of existing civil legislation to find justice, it is an argument about privacy and sexual autonomy. Do you have the right to be sexual and the right to privacy after the end of an affair?

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Previous Submissions

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Submission One

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Bibliographic Essay: Revenge Porn

Bennett, Kevin B. "Revenge Pornography: Exploring Tortious Remedies In Texas." St. Mary's Law Journal 46.4 (2015): 521-572. Academic Search Complete. Web. 18 Sept. 2015.

Kevin Bennett is a law clerk. St. Mary’s Law Journal is an academic journal including contributions from law students wishing to provide judiciary and legal communities with relevant scholarship. This article was written to make a case for using laws already on the books, “Publicity Given to Private Life” and “Intrusion upon Seclusion” (525). Bennett’s ideas are tort laws and would only provide victims with the ability to pursue civil action against the perpetrator, but these laws do not face the scrutiny that usually comes with the discussion of criminalizing revenge pornography and first amendment challenges. Additionally, he breaks down how the situations that commonly end in a person’s private life being made public and how these torts can be used to bring civil recourse against the perpetrator. These torts actually cover for the two instances that a victim could have their pictures distributed—the pictures are taken without consent, or they were taken with consent specifically for the other party, but were later distributed without consent—and provides the specific requirements that a victim must answer yes in order to recover damages. Overall, I do think that this information would be beneficial to victims of revenge porn in what avenues would be available to them within the civil court system, but it leave much to be desired when it comes to seeking to have the culprit prosecuted through the criminal justice system, or having the pictured scrubbed from the internet as best as possible.

Bloom, Sarah. "No Vengeance For 'Revenge Porn' Victims: Unraveling Why This Latest FemaleCentric, Intimate-Partner Offense Is Still Legal, And Why We Should Criminalize It." Fordham Urban Law Journal 42.1 (2014): 233-289. Academic Search Complete. Web. 19 Sept.

2015.

Sarah Bloom is a law student at Fordham Law School. This article was published in the Fordham Urban Law Journal which focuses on law and urban studies. The audience for this journal is scholars. This particular article was written to examine the issues surround non-consensual pornography, the percepts that victims are to blame, – “just don’t take naked photos of yourself” observers often say – and how current stalking and harassment laws fail to cover victims in instances of revenge porn. Furthermore, Bloom takes the time to breakdown the public and private issues that victims face when their images are made public and how victims become more susceptible to suicide once these problems begin. Also once this house of cards begins to shake, it tumbles fast; culminating in women being threatened and/or blackmailed by the person who has stolen their images, and it is not long after the distribution of these photos that the online life supersedes the victim’s real life. Anonymity of those online who now have access to the woman’s images begin the process of slandering the women in 17

question, publicizing her personal information, and harassing her in tandem with her initial abuser. Bloom also strives to make sure that readers understand that often the women who find themselves in these terrible situations are often told by the police “that [they] had to wait until a crime has actually been committed in order to intervene,” (253) and sometimes are met with titillation and laughter by the very people that should be most willing to protect them. I think that this article is important to my research because it provides several instances of what and how these crimes take place, and provides evidence as to why laws already on the books still fail to address all the issues that a victim of nonconsensual porn faces.

Citron, Danielle Keats, and Mary Anne Franks. "Criminalizing Revenge Porn." Wake Forest Law Review 49.2 (2014): 345-391. Business Source Complete. Web. 18 Sept. 2015.

Professor Citron is the Lois K. Macht Research Professor, and Professor of Law, at the University of Maryland Francis King Carey School of Law, and Professor Franks is a law professor at the University of Miami School of Law. The Wake Forest Law Review is an academic journal. This journal’s audience is made up of the law community. Professor Citron and Franks look at a number of factors at why there are so few laws protecting victims of these types of crime, and how the misinterpretation of the first amendment aids in the foot-dragging resistance in creating laws that protect the public from this type of harassment. They also call revenge porn, nonconsensual porn, which would also help the audience recognize more quickly identifies the victims whereas the term revenge porn seems to focus more on the perpetrators. These professors do focus on how society’s lack of interest in women’s rights has a trickle-down effect that is apparent in the lack of laws to protect women, that are by far and largely more often, affected by this practice than men. Furthermore, they share how sexual harassment and sexual assault pathologies are apparent within this new “genre” of domination. All of these factors are important when viewing the issue of creating sound protection against these acts, and legal resources that are needed. The authors pull back the curtains on what needs to be done, what can be done—without diminishing the first amendment— why civil litigation is not a useful tool, and shows the deficits in current criminal law. Overall, I believed this will be a useful article in explaining why these laws have failed to keep up with the age of technology and what government bodies should be considering when putting these laws on the books, and why we need laws that specifically address the issues faced when a sex crime is perpetuated in the cyber world.

Calvert, Clay. "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction." Fordham Intellectual Property, Media & Entertainment Law Journal 24.3 (2014): 673. Supplemental Index. Web. 20 Sept. 2015.

Doctor Clay Calvert is the Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida. This article was published in the Fordham Intellectual Property, Media & Entertainment Law Journal an academic journal that focus on intellectual property and entertainment along with various other areas of law. The audience for this journal is for the professional and scholarly law community. Dr. 18

Calvert takes time to explain the various intertwining concepts of law, pornography, and consent. All of these factors have an effect on the other, and in turn causes reluctance and hesitancy for legislators to make sweeping laws that punish peddlers of this brand of content.

Although this article if full of information about the conversations surrounding this crime, the author in conclusion takes the route that many take when it comes to revenge porn, a stance that implies that this may be a horrible issue for the victims of said crime, had they not naively made these images, they would not be in the position they are in now. Dr. Calvert seems to believe that the reason why this issue has become an issue is mainly impart to the media interest in it and legislators desire to attach themselves to an issue that can provide them with camera time. I think this article is important because it provides the subtle nuances of how people who may argue that legally this is an issue that needs to be addressed that it still comes back to victim blaming. Had they not taken the pictures they wouldn’t be in this position. If you are a victim some of the very people who are supposed to be able to help you still find you to be at fault in your victimization.

Desai, Snehal. "Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality." Hastings Constitutional Law Quarterly 42. (2015): 443. LexisNexis Academic: Law Reviews. Web. 20 Sept. 2015.

Snehal Desai is a graduate of the University Of California Hastings College Of Law. This source was published in an academic journal, Hastings Constitutional Law Quarterly. The audience for this journal is not only for academics and professionals, but for social scientists, public officials, and other academic voices contributing to constitutional discourse. Desai tackles the first amendment concerns regarding laws created to protect victims of revenge porn, specifically examining the recent passage of California’s recent law to do just that, and how it can be improved. One of the most interesting points that is mentioned within this paper is that, again, there are already laws on the books that could be used to assist other states in the prosecution of revenge porn creators, and that this type of content is not protected speech under the first amendment. Desai writes “Courts may be able to distinguish revenge pornography as an unprotected form of speech under the fighting words doctrine and true threats doctrine” (444). Additionally, Desai goes on to cite several legal precedents about language and what types of language is not protected by the first amendment. Much of the mentioned unprotected speech, defamation and liable, true threats, and fighting words have all been established as non-protected speech and these are the same practices we see manifested in the cyber harassment of nonconsensual porn victims. I believe that this article is important to my research because it deeply examines the first amendment and what precedents that have already been set, and how this legislation could be applied the relatively new phenomenon of cyber harassment by way of revenge porn.

Franklin, Zak. "Justice For Revenge Porn Victims: Legal Theories To Overcome Claims Of Civil Immunity By Operators Of Revenge Porn Websites." California Law Review 102.5 (2014): 13031335. Business Source Complete. Web. 19 Sept. 2015.

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Franklin Zak received his Juris Degree from the University of California at Berkeley School of Law. This journal entry was published in the California Law Review, an academic publication specializing in articles and review commentary about legal issues for the legal profession.

Several of the articles that I have pursued have mention Section 230 of the Communications Decency Act of 1996 (CDA), this act was intended to provide websites recourse in being able to remove certain types of content from their site. Instead, revenge porn website operators have become accomplices in the victimization of women. Zak believes that victims could “persuade courts that many website operators are responsible for the harmful content on their sites, and therefore are liable as information content providers under Section 230” (1305).

This would entail “[…] where an operator has added original material, a victim-plaintiff can argue that the revenge porn website operator contributed to the illegality of the post. Second, a plaintiff can argue that the operator is responsible for the content because the operator solicited it. Under both theories, plaintiffs would argue that by fostering the creation or development of the harmful content, the operator of the site is ‘responsible, in whole or in part, for the creation or development’ of illegal information and thus is an information content provider ineligible for Section 230 immunity” (1305). This article provides several instances of information about how section 230 works and how victims could use this law, that currently is used by website operators to keep the content public, to have the images taken off the website. Considering the issues with obtaining a copyright of images that have already been spread across the internet and the various issues of having to re-expose oneself in order to legally own the images only then to have recourse in having the images removed from the predatory sites does more harm than good in the long run. I think this article is important to my research because it shows how a federal law that was meant for one thing is actually allowing unethical behavior to flourish in the sub communities online.

Folderauer, Kaitlan M. "Not All Is Fair (Use) In Love And War: Copyright Law And Revenge Porn." University Of Baltimore Law Review 44. (2015): 321. LexisNexis Academic: Law Reviews.

Web. 20 Sept. 2015.

Kaitlan Folderauer is a law student at the University Of Baltimore School Of Law. This article was published in an academic journal. The University of Baltimore Law Review which publishes articles for academic and professionals in the law community. Folderauer is interested in using copyright law not only to assist victims of revenge porn in obtaining recourse, but to discourage webmasters of sites that peddle this type of content. But, even after she obtained a copyright of the images there is still the problem of demonstrating damages. Folderauer explains the hardship of obtaining a copyright and the time limit that victims face when going through the copyrighting process. This article is important because she points out various issues regarding copyright and ultimately does not agree that copyright is the best way to provide recourse for victims. I think that this all provides another reason as to why copyright is a limited and lengthy process that does provide relief from a terrible situation.

Humbach, John A. "The Constitution And Revenge Porn." Pace Law Review 35.1 (2014): 215260. Legal Collection. Web. 18 Sept. 2015.

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John Humbach is a professor at Pace University School of Law. This article was submitted to an academic journal. Pace Law Review publishes scholarly articles for the professional and academic law community. The point of this article is show how the few passed laws regarding revenge porn actually are impeding on the first amendment, and that the prohibitions used in these laws, “images that show sexual exposure or contact, and dissemination without consent of persons depicted” (217), do exactly that. Humbach argues that “the two prohibitions constitute unconstitutional content discrimination, viewpoint discrimination and speaker discrimination, not to mention prior restraint. A restriction on speech that is limited to particular content, e.g., sexual exposure, is content discrimination” (217). If we are outlawing the ability for someone to share explicit pictures we are violating their rights simply because the person in the pictures does not like the ramifications of the shared content, or as Humach puts it, “revenge porn laws face a major First Amendment hurdle because their explicit and unabashed aim is to punish and suppress disfavored speech” (221). I believe this article will be important because it examines the ways in which current legislation is going against the first amendment.

Larkin, Jr., Paul J. "Revenge Porn, State Law, And Free Speech." Loyola Of Los Angeles Law Review 48.1 (2014): 57-118. Legal Collection. Web. 18 Sept. 2015.

Paul Larkin Jr. is a senior legal research fellow at The Heritage Foundation, who directs their project to counter the abuse of criminal law. This article was written for the Loyola of Los Angeles Law Review which is a publication focused on legal scholarship regarding all legal topics, this journal seeks to identify and advance legal research. The audience for this journal is law students, lawyers, judges, professors, and clerks. This article was written to identify recourse available to victims of revenge porn, identifies laws already in existence, and argues why first amendment arguments are not successful. The law must change along with the world. With our increasing interconnectivity, due to the internet it has become harder to leave ones the past where it is, in the past. With the invention of the internet and that anything uploaded to the internet is forever, women are disproportionately affected by the internets “forever effect.” And it is not just the fact that these images are now posted for the world to see often times the victims of revenge porn are subjected to “debilitating loss of self-esteem, crippling feelings of humiliation and shame, discharge from employment, verbal and physical harassment, and even stalking” (65). Once this act has occurred a victim has to enter the dense jungle that is law. Laws that were passed to empower websites in the ability to delete particular types of content, section 230 of the Communications Decency Act of 1996, actually are being used to protect websites desire to keep pornographic images on their site, leaving a victim of revenge porn with little to no legal action against the middle man that provides access to the images. Ultimately, this article provides an abundance of information on the legal precedents that have been set, how they have been used, and what a victim of this type of crime is facing.

Levendowski, Amanda. "Using Copyright To Combat Revenge Porn." Journal Of Intellectual Property & Entertainment Law 34.2 (2014): 422-446. Legal Collection. Web. 19 Sept. 2015.

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Amanda Levendowski is an associate Cooley LLP's Litigation Department working in the Firm's Trademark, Copyright & Advertising practice group. This article was published in the Journal of Intellectual Property & Entertainment Law an academic journal that focus on intellectual property and entertainment along with various other areas of law. The audience for this journal is for the professional and scholarly law community, and this particular article focuses on how established copyright law can be used in the instances of nonconsensual pornography victims. Levendowski makes several interesting points about standing laws and how they can help victims of revenge porn, such as The Communications Decency Act Section 230, and how it protects the websites that host this type of content. Additionally, she explains how tort laws fail to aid victims’ fight in seeking justice, writing, “To further complicate matters, victims are not looking solely for injunctive relief, civil penalties, or monetary damages, which are the remedies available under tort law. Instead, victims’ primary goal is to have the images removed as quickly as possible, with the tort remedies coming into play as threats for non-compliance with an order to remove the images in question” (425). Levendowski claims that the calls to creating additional laws to combat the revenge porn arena are for naught since we already have copyright laws that cover all areas of concern – “a uniform method for revenge porn victims to remove their images, target websites that refuse to comply with takedown notices and, in some cases, receive monetary damages” (426) – facing victims. This article is useful because it explains copyright law and how it can be used to assist victims in legal recourse to have their images removed from all content hubs, and have them regularly removed anytime they appear online since they own the copyright.

Linkous, Taylor. "It's Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn." Richmond Journal Of Law & Technology 20.

(2014): 14. LexisNexis Academic: Law Reviews. Web. 20 Sept. 2015.

Taylor Linkous is a writer associated with the Richmond Journal of Law & Technology. This is a scholarly periodical with submissions published entirely from the law students. The purpose of this journal is to examine the effects of technology and law targeting law professionals and students. Linkous examines the various intersections of technology and pornography and how this has led to revenge porn, examines the current legal methods, both civil and criminal, available to victims, analyzes the hardships of legislators in getting laws passed on a state level.

Additionally, he calls for a federal laws to be made to combat this form of harassment. I believed this article is important because the author examines how the rise of technology – from VHS and Polaroids, to smartphones and the internet – and how false senses of privacy has always played into the titillation of creating personal pornography.

Patton, Rachel Budde. "Taking The Sting Out Of Revenge Porn: Using Criminal Statutes To Safeguard Sexual Autonomy In The Digitalage." The Georgetown Journal Of Gender And The Law 16. (2015): 407. LexisNexis Academic: Law Reviews. Web. 19 Sept. 2015.

Rachel Patton is an Emory University School of Law graduate. This article was published in The Georgetown Journal of Gender and the Law. This is a peer reviewed journal that seek to examine 22

the intersections of race, gender, and sexuality on the practice of law. The intended audience is for scholars and professionals within the law community. Patton focuses on sexual autonomy and how the idea of women being fully in control of their sexuality manifests in the fight regarding nonconsensual pornography, and examines many of the already mentioned conclusions that are examined in several academic papers that are already mentioned throughout this essay. Patton examines several options, such as, torts/civil recourse, criminal recourse—and the issues facing the passing of criminal statutes—, and amending already passed laws that tackle crimes such as stalking, and extortion. Ultimately, Patton believes that using existing statutes are a better way to tackle the issues of revenge porn. This article is important to my research because she looks at existing laws that are used to protect victims of extortion, stalking, and harassment that would grant recourse to victims in a more timely fashion.

Name: Perdita P. Henry

I. Topic Question: Should revenge porn laws be passed in Texas and are they a violation of first amendment rights? Should revenge porn be criminalized in Texas? (I am still playing with the question)

II. Underlying Social Problems:

A. Revenge porn is a relatively new word in the English lexicon, but it has begun to become

common in discussion and worry that concerns most women. Story after story of women realizing that their privacy has been breached and that nude pictures that they took for a significant other are now posted for the world to see online.

B. The Pew Center states, “Cell owners ages 18-24 are the most likely to say they receive sexts (44%), while those in their mid-twenties through mid-thirties are more likely than older adults to say they send sexts (22%).” With these numbers it is more likely that people will find themselves in the position of being a victim nonconsensual pornography. Once a person realizes they have been exposed the next step is to find legal recourse and have the pictures removed from revenge porn sites, both goals are difficult to achieve. Many of the sources that I found question whether the best course of action, for victims, is it to pursue civil litigation, or copyright laws. Additionally, when it comes to legislative bodies there is the concern about the constitutionality of criminal laws when it comes to freedom of speech.

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III. Proponent Stakeholders A. Proponents’ Position B. General pro stakeholders (use qualifiers) 1. Victims 2. Lawyers 3. Advocates C. Specific pro stakeholders 1. Sarah Bloom 2. Warp (Women against revenge porn) 3. End Revenge Porn.org

IV. Proponents’ Issues, Arguments, Evidence, and Plans/Actions A. Issue 1: Cyber Harassment

1. Argument (Stakeholders answer your topic question YES because) Because victims often are blackmailed and threatened by their former significant other.

Issue 2: Police resistance to get involved 1. Argument: Police state that what is taking place is not a crime.

C. Issue 3: Stopping the publication of the pictures

1. Argument: There is no recourse to stop websites from posting the images.

D. Examples of Pro Plans/Actions

1. Making the spread of revenge porn a criminal offense would deter would be offenders 2. Police would actually have protocol to follow if they were contacted by a victim 3. Make it easier to pull the photos of websites

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V. Examples of Proponents’ Values (i.e. self-reliance, security, equality, liberty)

A. Pro Stakeholder:Values: privacy

B. Pro Stakeholder:Values: sexual autonomy

C. Pro Stakeholder:Values: justice

VI. Opponent Stakeholders A. Opponents’ Position: Revenge porn in another type of sexual violation B. General con stakeholders (use qualifiers) 1. Lawyers 2. Champions of the First amendment 3. Webmasters of revenge porn sites

C. Specific con stakeholders

1. Violating the first amendment 2. Not utilizing already existing laws 3. Forcing censorship

VII. Opponents’ Issues, Arguments, Evidence, and Plans/Actions A. Issue 1 (Label issues as 1-word nicknames arguments): First amendment 1. Argument: Any new legislation targeting revenge porn could limit free speech.

B. Issue 2: Civil laws that already provide recourse 1. Argument: We already have laws that provide legal recourse for this issue

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C. Issue 3: The victims 1. Argument: This wouldn’t be an issue if people did not take intimate photos of themselves

D. Examples of Opponents’ Plans/Actions 1. Using civil remedies to assist victims 2. Using the Communications Decency Act of 1996 to curb website operators 3. Encouraging women not to take these types of photos

VIII. Examples of Opponents’ Values (i.e. self-reliance, security, equality, liberty) A. Con Stakeholder: Values: Misuse of criminal proceedings B. Con Stakeholder: Values: First amendment C. Con Stakeholder: Values: Using already existing laws

IX. Definitions/Explanations: Nonconsensual pornography, revenge porn, financial blackmail, copyright, torts, sexual autonomy, the first amendment, protected speech, non-protected speech

X. Limits: Child pornography

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Submission Two

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Revenge Porn: Submission Two Dear Beth, With the invention of the internet and the progression of technology we now have the ability to capture images and post them to the internet in a matter of seconds. The ability to share memories via video and photographic images is great, and almost everyone takes advantage of it, but there is a dark side to this. Revenge porn is one of the unintended byproducts of technology, the internet, and sexuality intersecting. Disproportionally, the victims of revenge porn are women, and no matter their educational background, societal status, or age, they often share similar stories of becoming the victim of extortion from jilted ex-lovers. The nightmare quickly grows to horrific proportions when the victim reaches out to law enforcement they are quickly re-victimized when they are told that what is happening to them is not a crime. Legally, revenge porn is a criminal offense in only 14 states, and the legal community is divided on how this cybercrime should be handled.

Project Overview In this paper I will examine the various legal avenues available to the victims of revenge porn, some believe that it should be handled as a criminal offense just as harassment or other prohibited invasions of privacy would be, while others believe that we already have laws that would handle this issue citing civil tort and copyright laws. However, there is a greater concern circling the entire debate due to the concern of any new or existing laws hindering protected speech under the first amendment.

The issue of revenge porn is important. Women’s rights has always been in the American zeitgeist, with multiple waves of feminism and the latest specifically focusing on the language used when speaking about women we are able to track the manifestation of language in cyber interactions. Since the beginning of time women have had their bodies and sexuality policed by society and this trend continues in the victimization of women through revenge porn. Discarded lovers take it upon themselves to distribute intimate photos and encourage others to remark about the victim and her perceived lack of virtue. Words like slut, whore, and a whole lot worse, are thrown at the women, and the pictures are usually posted on websites associated with the victim’s employer, family, and any other public domain that would shame the victim.

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Of course the victimization and exploitation of women is nothing new and in the legal finagling surrounding revenge porn there are three sides to this particular issue; those who believe that nonconsensual pornography should be a criminal offense, those who believe that civil laws should applied to address the issue, and those who believe that any criminal law addressing nonconsensual pornography will impede first amendment rights.

The proponents for the criminalization of revenge porn believe that there need to be real deterrents for offenders. As it currently stands, offenders are able to harass, threaten, blackmail, and recruit others in participation of harassment through cyberspace. Not only are they able to get away with behaviors that would be considered a crime were it taking place “in real life,” but they are able to continue a systematic smear campaign that targets every aspect of the victims life.

The opponents are separated into two groups, for the clarity of this paper. On one side, we have those who believe that we already have laws on the books that will address this issue within civil law. Legal torts are defined as “civil wrongs recognized by law as grounds for a lawsuit,” and it is argued that it could be used in an instance of someone defaming a person online, which, if done successfully, would award the victim monetary damages. Additionally, there are is very strict criteria that a victim must meet when the question of consent is considered regarding the images, but if can answer yes to these questions than they stand a chance of being awarded damages. Of course, if they did win this would not provide any further assistance in obtaining the damages, or having the pictures removed from various websites catering to this genre. While copyright laws have both a civil and criminal aspect to them, in this case they would lean more toward the civil side of law.

Victims who pursued this route would face having to submit all of the images that have been posted online to the government copyright office, and must do so within a certain time frame, but where tort law fails copyright law does not. If the copyright is approved and the victim obtains ownership of the images they now have the ability to legally force third party revenge porn sites to remove the images. If the images are reposted the website then is liable and the victim will be awarded damages due to copyright infringement. However, there is no recourse for holding the original perpetrator accountable for the original crime.

Finally, we have what links the majority of opponents together, the fear that any criminal law will interfere with first amendment rights. Just because people are saying things about you that 29

you do not like does not mean that they should be threatened with jail time for it. This fear has been often repeated by many scholars pointing out the other means of justice available to victims of revenge porn, but it is a concern that continues to be repeated.

Objectives •

Continue perusing multiple sources on the issue

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Further research into the recently passed S.B. 1135 “Relating to civil and criminal liability for the unlawful disclosure or promotion of certain intimate visual material; creating an offense.”

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Further Research opponents & proponents

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Contact copyright lawyer for possible interview

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Possible psychologist for insight on offenders interview

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Patriarchy playing into this phenomenon (research)?

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Chat with a research librarian

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Contact Dr. Chauntelle Tibbals author of Exposure for possible interview

Work Completed I have found several sources debating the legality of criminal legislation regarding nonconsensual pornography and what avenues are already available to people who find themselves victims of this type of crime. I have pursued multiple avenues of discourse regarding this situation, and also come to look at how all of the human factors, such as, sexuality, technological advances, new courting rituals, and how society’s discomfort with female-sexual autonomy are all intersecting to cause this particular issue. I have also contacted a lawyer who deals with copyright law to find out more intricate nuances regarding copyright and the process of what one faces within the copyright process. Additionally, I am considering more avenues regarding the stakeholders to interview, and considering the narrative that may be used when I begin work on what will become the final draft.

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Work Remaining I still need to pursue more sources of information and see if there are any additional legal opinions about victim recourse. I also need to get additional people to interview. I have an idea about the type of narrative that I would like to write, and I am considering that the narrative will have something to do with how women are viewed on a macro level versus how that view has led to foot dragging when it comes to making legislation that protect people—particularly women— from this type of crime.

Discussion Right now I am only slightly behind schedule. I want to do some additional research into women being taunted and harassed online and how this plays into the current mood of women being victimized through means of non-consensual pornography. I would like to weave that subset of research into my findings on the legal theory. I do not think that this line of support will throw me off the real question of my paper, but if I begin to see signs that it will than I will back off. I also Conclusion Ultimately, like all legal precedent, revenge porn with be a slippery slope to finding justice.

The legal community is divided on what proper legislation should look like, law enforcement has a hands off approach, victims are terrified and face an uphill battle when it comes to any civil recourse and perpetrators are able to continue a terror campaign unabated.

Key Terms Nonconsensual pornography – Non-consensual pornography, defined as the distribution of sexually graphic images of individuals without their consent, transforms unwilling individuals into sexual entertainment for strangers.

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Revenge porn – Sexually explicit images that are publicly shared online, without the consent of the pictured individual Financial blackmail/Extortion – An illegal act in which one coerces another into providing money or something else of value Copyright – The legal right to be the only one to reproduce, publish, and sell a book, musical recording, etc., for a certain period of time Torts – A civil wrong which can be redressed by awarding damages Autonomy – freedom from external control or influence; independence First amendment – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people to peaceably to assemble, and to petition the Government for redress of grievances.

Protected speech – Speech that is protected from government regulation and censorship, depending upon the nature of the speech and the nature of regulation.

Works Cited Brook, Alex Lynn. "The Women of the Men's Rights Movement | VICE | United States." VICE. Vice Media, n.d. Web. 15 Nov. 2015.

Associated, Press. "When Is an Online Threat Illegal and When Is It Free Speech?" CBSNews. CBS Interactive, 30 Nov. 2014. Web. 05 Sept. 2015.

Associated Press. "'Revenge Porn' Outlawed in California." The Guardian. Guardian News and Media Limited or Its Affiliated Companies, 1 Oct. 2013. Web. 15 Sept. 2015.

Bennett, Kevin B. "Revenge Pornography: Exploring Tortious Remedies In Texas." St. Mary's Law Journal 46.4 (2015): 521-572.Academic Search Complete. Web. 18 Sept. 2015.

Bloom, Sarah. "No Vengeance For 'Revenge Porn' Victims: Unraveling Why This Latest FemaleCentric, Intimate-Partner Offense Is Still Legal, And Why We Should Criminalize It." Fordham Urban Law Journal 42.1 (2014): 233-289. Academic Search Complete. Web. 19 Sept.

2015.

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Citron, Danielle Keats, and Mary Anne Franks. "Criminalizing Revenge Porn." Wake Forest Law Review 49.2 (2014): 345-391. Business Source Complete. Web. 18 Sept. 2015.

Calvert, Clay. "Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction." Fordham Intellectual Property, Media & Entertainment Law Journal 24.3 (2014): 673.Supplemental Index. Web. 20 Sept. 2015.

"Definition of Pornography." Merriam-Webster. Merriam-Webster, n.d. Web. 08 Nov. 2015.

Desai, Snehal. "Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality." Hastings Constitutional Law Quarterly 42. (2015): 443. LexisNexis Academic: Law Reviews. Web. 20 Sept. 2015.

Franklin, Zak. "Justice For Revenge Porn Victims: Legal Theories To Overcome Claims Of Civil Immunity By Operators Of Revenge Porn Websites." California Law Review 102.5 (2014): 13031335. Business Source Complete. Web. 19 Sept. 2015.

Folderauer, Kaitlan M. "Not All Is Fair (Use) In Love And War: Copyright Law And Revenge Porn." University Of Baltimore Law Review 44. (2015): 321. LexisNexis Academic: Law Reviews.

Web. 20 Sept. 2015.

Humbach, John A. "The Constitution And Revenge Porn." Pace Law Review 35.1 (2014): 215260. Legal Collection. Web. 18 Sept. 2015.

Larkin, Jr., Paul J. "Revenge Porn, State Law, And Free Speech." Loyola Of Los Angeles Law Review 48.1 (2014): 57-118. Legal Collection. Web. 18 Sept. 2015.

Larsen, Justine. "Ohio State Journal of Criminal Law." Ohio State Journal of Criminal Law Criminalizing Revenge Porn The Debate Comments. Moritz College of Law, n.d. Web. 12 Sept.

2015.

Lenhart, Amanda, and Maeve Duggan. "Main Report." Pew Research Center Internet Science Tech RSS. Pew Research, 11 Feb. 2014. Web. 07 Sept. 2015.

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Levendowski, Amanda. "Using Copyright To Combat Revenge Porn." Journal Of Intellectual Property & Entertainment Law 34.2 (2014): 422-446. Legal Collection. Web. 19 Sept. 2015.

Linkous, Taylor. "It's Time For Revenge Porn To Get A Taste Of Its Own Medicine: An Argument For The Federal Criminalization Of Revenge Porn." Richmond Journal Of Law & Technology 20.

(2014): 14. LexisNexis Academic: Law Reviews. Web. 20 Sept. 2015.

Loftus, Lauren. "ACLU Files Federal Lawsuit against Arizona’s ‘revenge Porn’ Law." Cronkite News.

Walter Cronkite School Of Journalism And Mass Communication At Arizona State University, 23 Sept. 2014. Web. 27 Sept. 2015.

National Coalition Against Domestic Violence. NCADV, n.d. Web. 27 Nov. 2015.

O'Connor, Lydia. "'Revenge Porn' Law Sees First Conviction In California." The Huffington Post.

TheHuffingtonPost.com, 12 Dec. 2014. Web. 12 Sept. 2015.

Patton, Rachel Budde. "Taking The Sting Out Of Revenge Porn: Using Criminal Statutes To Safeguard Sexual Autonomy In The Digitalage." The Georgetown Journal Of Gender And The Law 16. (2015): 407. LexisNexis Academic: Law Reviews. Web. 19 Sept. 2015.

"Pornography." TheFreeDictionary.com. N.p., n.d. Web. 8 Nov. 2015.

Rugg, Peter. "An ACLU Lawyer's Free-Speech Argument Against Federal Revenge Porn Laws." Inverse. N.p., 17 Aug. 2015. Web. 27 Sept. 2015.

Serwer, Adam, and Katie J.M. Baker. "How Men's Rights Leader Paul Elam Turned Being A Deadbeat Dad Into A Moneymaking Movement."BuzzFeed. N.p., 5 Feb. 2015. Web. 24 Oct. 2015.

Tsoulis-Reay, Alexa. "A Brief History of Revenge Porn." NYMag.com. New York Magazine, 21 July 2013. Web. 23 Nov. 2015.

Warren, Pat. "Bill Signed Into Law Making Revenge Porn A Misdemeanor." CBS Baltimore. CBS, 15 May 2014. Web. 15 Sept. 2015.

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Webb, Natalie. "End Revenge Porn Infographic." The Cyber Civil Rights Initiative, Inc. Cyber Civil Rights Initiative, 3 Jan. 2014. Web. 02 Dec. 2015.

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Submission Three

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Sub 3 Worksheet Name: Perdita Henry Normative question: Should the federal government adopt S.B. 1135 in order to address extortion, gender violence, invasion of privacy, and cyber harassment created by revenge porn?

Issue #1: Criminal Law VS. First Amendment Proponents argue: Threats and extortion are not protected speech.

Opponents argue: That criminal laws would impede on protected speech provided by the first amendment.

Critical analysis: The definition of what speech is protected and what speech is not.

Ethical analysis: Utilitarianism is about doing what is right for the greater good, opponents believe that any criminal legislation will hinder one’s ability to say what they want to say about someone regardless of situation, but they fail to define in clear terms what the first amendment and protected speech really means. The greater good would not be well served if more than half of the population had no justice when it comes to being victimized and slandered online.

Issue #2: Civil recourse is not enough Proponents argue: The threat of civil lawsuits does not provide enough protection for victims of revenge porn Opponents argue: Civil law (torts and copyright) provide financial recourse and the ability to have images removed from the internet.

Critical analysis: Civil lawsuits only focus on making a wrong right through financial means. It does not address the other issues facing this type of situation.

Ethical analysis: Locke believed that no one should have more power than anyone else. In the case of using civil action against people victimizing an ex-lover by RP they are actually exerting their

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power on the person that they hold ill will against. Extortion and intimidation are the foundation of RP and the terror that it can inflict on victims.

Issue #3: If women did not take these pictures they wouldn’t find themselves in this situation Proponents argue: That “revenge porn” is another way to bully women into feeling shame about their sexuality.

Opponents argue: That women are being naïve in thinking that no one will ever see their nude images when they share them with someone.

Critical analysis: American society has always had a problem with women having complete autonomy, so the issue of RP is another opportunity to make women feel like they are responsible for their own victimization.

Ethical analysis: Again, Locke believed that individual rights are possessed by everyone. The act of RP, and the opponent’s dismissal of victim’s individual rights, rejects the idea of an individual’s rights because there is the belief that the victim gave away their right to privacy when they shared the images with their significant other.

Discussion and Conclusion Ultimately, the issues that are being brought up again and again throughout the various conversation about this issue are all good things to consider, but it only takes a little more thought to be able to see the fallacies within the opponent’s arguments. Of course making more laws when we have laws that already can assist in new legal matters does seem redundant, but they fail to consider that this is a crime that is different from regular instances of copyright infringement and liable/slander. The issue of revenge porn is a sex crime and should be handled with the same amount of seriousness as rape, stalking, and harassment. The same goes for the fears of first amendment rights, protected speech is limited, but it is often spoken of as if anything that can come out of a person’s mouth is protected—it is not. And the final argument is the crux of why there is push back on making sure that there are laws that not only protect and deter, but punish the offender. In our society, and the world if we are honest, it is more often than not a woman’s fault in situations where they are the victim. We see that in the discourse used when discussing 38

victims of sexual assault – see any conversation about Bill Cosby – or when a women is associated with dissent. In the recent New York Times interview with Nicki Minaj when the interviewer asked her about a situation regarding some of her associates, ‘‘Is there a part of you that thrives on drama, or is it no, just pain and unpleasantness— […] What do the four men you just named have to do with me thriving off drama?’’ she asked. ‘‘Why would you even say that? That’s so peculiar.

Four grown-ass men are having issues between themselves, and you’re asking me do I thrive off drama?’’ So, ethically, what is this issue really about? The law, or women getting their just desserts?

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Submission Four

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The interview component has was surprisingly the most interesting portion of this assignment thus far. I have contact Dr. Mary Anne Franks, A Voice for Men Founder Paul Elam, Sociologist Dr. Chauntelle Tibbals, and Founder of Women Against Revenge Porn, Bekah Wells.

My first contact was with Dr. Chauntelle Tibbals. I was aware of her because she is a published author through Greenleaf Book Group, where I currently intern. I asked one of my coworkers if they would be willing to make an introduction and from there I was able to contact Dr. Tibbals. Since she was on the road for a book tour and other events she made time to answer an email with my prepared questions. She provided candid insight into how revenge porn is seen and the lack of connection that people encounter when talking about what it really means. She also pointed out the language that is used when discussing this issue, revenge porn, is a term that shouldn’t be used. I asked Dr. Tibbals what term she though we should use in regards to this issue, “Blackmail? Entrapment? Some form of abuse? There is nothing “pornographic” – erotic or sexual – about the crime people are referring to when they use the phrase “revenge porn.” It’s similar to sexual assault in the sense that, because there are sex-related behaviors involved (penetration, nudity, etc), people think there must be something sexual about either crime. Absolutely not. RP, like rape/sexual assault, is about power and abuse. There is nothing erotic about either.”

While looking for the opposition’s side of this issue I was made aware of men’s rights activist Paul Elam. I contacted him via email and within eight hours he had responded that he was willing to speak to me. After further research into his background and activism I found myself wondering if I had made a mistake in contacting him. His profile read like the poster child of men that enjoy harassing women. I wanted the interview, — it would be a boon for my paper — but did I, and was I, ready to put myself out there to become a target for the type of men that would participate in the harassment of women who said something that they did not like. After letting everything settle and researching ways to protect myself as much as possible I made plans to conduct the phone interview. In the meantime, I avoided looking into Elam and his beliefs any further. I was nervous for a few hours leading up to making the call. Once on the phone I was still nervous, I psyched myself up about this situation but at the same time it was not as if my anxiety was not warranted. But, Elam was perfectly nice and cordial. I was perplexed. I tried not to go into this thinking of him as the boogeyman, but still I found myself shocked that he was not raving 41

about the evils of women, and that if they found themselves victims of this type of crime that they had it coming, all the while foaming at the mouth… Instead he was empathetic toward anyone who found themselves in that situation and had comments that often made sense. He was pleasant to speak with. I was still slightly shocked by the time we wished each other a good weekend, but I came away from the call knowing why people believe what he is selling. He says things that make sense on the surface. He has the tone of a nice man you would encounter in the waiting room of a doctor’s office. He said things that anyone with empathy and common sense could agree with; as long as you divorce yourself from the reality of how women have been, and still are, treated.

I came across Dr. Franks when I found her paper on revenge porn in my initial research about this topic. I thought she may be a great person to interview because of her intense and dogged dedication to bringing attention to this matter. I have emailed her twice but she has not responded yet. I hope that she may find 15 minutes to allow for a brief interview.

I also contacted Bekah Wells about a possible interview because not only does she have deep and personal insight into what happens when someone finds themselves a victim to this crime. I have not heard anything back yet but will soon send an additional email in regards to the interview.

I am still in the works with the YWCA about how they may be able to use my information or if they have something that I can do for them. All of the rain Friday did not allow me to follow up with them because they closed their office early.

Dr. Chauntelle Tibbals Interview Transcript I know you are just using the common vernacular, but I must reiterate – There is no such thing as “non-consensual porn” or “revenge porn.” Porn is a legal enterprise and a labor negotiation between consenting adults. When people/media use “porn” in conjunction with a illegal enterprises related to privacy violations, entrapment/coercion, sex-related crimes against minors, etc etc, they are muddying the issues and augmenting the harm experienced by survivors of illegal activity, as well as enhancing the stigma and marginalization experienced by sex workers in the adult entertainment industry.

What do you think would be better terms to use when discussing “revenge porn/non-consensual pornography”?

Blackmail? Entrapment? Some form of abuse? There is nothing “pornographic” – erotic or sexual – about the crime people are referring to when they use the phrase “revenge porn.” It’s similar to 42

sexual assault in the sense that, because there are sex-related behaviors involved (penetration, nudity, etc), people think there must be something sexual about either crime. Absolutely not. RP, like rape/sexual assault, is about power and abuse. There is nothing erotic about either.

(I am not talking about rape fantasy here, which is obviously something different) Do you think that the mainstreaming of pornography is why we now see sexting becoming a ritual within courtship?

Sexting is an evolution of a collection human behaviors that’ve always been present – the pursuit of physical sexual interaction. Before people were sexting, maybe they were emailing, calling on the phone, visiting on the porch while parents peeked through the curtains, writing letters, sending messages by carrier pigeon, etc etc. What we are seeing is simply a modern, tech-evolved behavior that’s always been present.

You mention on page 109 how [*some* porn fans – not all] porn fans treat women performers. Throughout this passage I kept coming back to the word entitlement and then you mentioned that very word. Do you think that this entitlement is why law enforcement and other government officials fail to see the seriousness of this issue?

Entitlement could be part of it. Slut shaming and gender inequalities related to sexualities come into play as well. Essentially, the exchanges we see between some porn fans and performers and some law enforcement and women who have had their privacy and rights violated are all variable products of a long-standing cultural practice/belief in the accessibility and commodification of women’s bodies (the intensity of which varies with race and class, among other things).

Do you think that the ability to reduce porn stars to body parts (James Deen’s Penis or Sasha Grey’s vulva) contributes to the reduction of women in the minds of some men?

Certainly – though I would say “…contributes to the reduction of some sex workers/porn performers in the minds of some fans/viewers/consumers.” This very much happens to men performers too, very frequently in the gay production industry.

How is/or do you believe that pornography is contributing to gender violence?

Pornography, like all other media, is a fixed text that is then interpreted by consumers. As such, two people may view the same text in a very different way and the specific form of media in question (porn) has no more or less an impact than any other text (film, book, etc).

What I do see as a problem though is a lack of sex education (or even the ability to speak about sex) in our culture contributing to a massive tendency to misappropriate porn as educational. Porn is NOT a sex ed tool, but people look at as such because it’s the easiest option in a world that can’t speak about sex frankly. And when people copy what they think they see in porn, especially without having a conversation with their partner first, all sorts of problems can emerge.

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Do you think that porn’s popularity is influencing sexuality more so now than in the past?

I don’t think its porn’s popularity so much as it is porn’s accessibility due to technology. In general, what we see in our culture is a gluttonous demand for more – more food, more stuff, more news, more updates, more, more, MORE! As such, there is pressure in every corner of the world to satisfy. Porn is no different in this respect.

Do you think that adding the word pornography to actual crimes is a catch all that people are using to diminish the legitimacy of sex work and why?

100% absolutely. Porn is a mysterious industry people don’t know much about. And we as a culture are so puritanical about sex – porn’s basic operating principle (sex as a performance/work that can be monetized) – smacks against many of the embedded attitudes we have about sex. And when we conflate a person’s job with a crime, all it does is distract from an actual crime on one hand and marginalize workers (thus making them susceptible to crime themselves) on the other.

It is a vicious cycle that needs to be challenged if we are to ever make any progress towards sexual liberty and survival in general. Foucault spoke so much about the power of language and how the dominant narrative controls the lives of so many, simply by what words are chosen. I cannot emphasize enough how significantly this concept/discussion is at play in this situation.

Paul Elam Interview Transcript Are you aware of The Relationship Privacy Act recently passed here in Texas?

I was aware of it but I certainly wouldn’t call myself an expert on it. I would think that she would have a civil case but there are a lot of holes in this issue.

Do you have a position on this as a men's right advocate?

I am certainly a men’s rights activist and advocate for men and boys. [However,] I am not an advocate for guys being jerk-offs. I don’t think it’s appropriate to take something that is personal and intimate and use it as an act of revenge. […] I wouldn’t hang out with a guy that did that, or with a women. Just another inroad to prosecute men. What if a guy shares a video with a buddy of his, or somebody gets on his computer and it leaks out. There [are] a lot of opportunities with digital material, and I think at some point we have to have a discussion about the decision of anybody to allow themselves to have anything filmed of them, sex or otherwise, that they would not want the world to see. Where does the personal accountability come in on that? And I am a big believer on that. If we take the stereotypical scenario where a man and a women hook-up for a while and they have sex they video some of it and then they break up and he gets mad because he has been through the breakup and he wants to get back at her and he uses the porn directly to get

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revenge. If that is the scenario that we are talking about than I’m saying there’s a jerk and you should probably have civil recourse. But criminal recourse I’m not buying it.

Do you think that this is a way that feminist or women are being used to push a particular agenda?

Yes I do. I absolutely do. This is another way that research says that women are affected most. That has been a standard for pushing back civil rights, and incarcerating particularly men. We have an industrial prison complex, we have prisons that are privatized and they don’t care if people are innocent or not. They want those beds filled and it pays them to do that. Since we have a high degree of cultural miss-injury and an indifference to the pain of men you can fill prisons up all day long and no one will say a word. I don’t want to call it a master scheme but I do think it is a commonly used tactic by feminist to attack men. I can believe that in this case that the evidence might be accurate. That men are more likely to do this than women, the socialization process is different. Men might find out that their online sex has been put out there and say well so what.

And they will go on about their lives and not care. The fact that more men would see this as an instrument of revenge make a sort of sense to me psychologically. I am not endorsing the research because I haven’t seen it. But I still think that this is something that is being used by feminist to attack men and men’s sexuality, absolutely.

How do you think that this issue is impacting men's rights?

There is the matter of freedom of expression. If I video something the law assumes that’s my property. But if I sell it and have videotaped someone else and did not get a release, and then use it to make money civil law says that they can sue me for damages. However, if I take something and release it for free, than that is legal that is my right under the constitution. It may be jerky but it is my right. The solution to this problem is don’t have sex in front of a camera. Unless you can feel comfortable with it getting out.

Why do you think that men would be ok with their images leaking?

It has to do with the way that men are socialized. Men totally have the message drummed into them one, don’t complain about anything. We value men when they are strong and the moment that they are weak we reject them.

Do you think that this is a way for men to act out?

We have a core issue that men are told that they are inadequate for not sharing their feelings but the moment they start sharing their feelings they’re told their weak and are abandoned sexually by women. So the rallying cry is their angry. Men are not supposed to be angry, unless it’s about something that happens to a woman. And a lot of these things they are supposed to be angry about. But they are also supposed to be angry about what happens to them I am trying ti teach men to honor their angry. Once men get ok with their anger they can get to be ok with a lot of other things. Absolutely, [although] I have to say that I think it is an inappropriate acting out […].

Men are really good at [acting out] in dysfunctional ways, because the healthy ways for [acting out] their anger is not allowed.

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Dr. Mary Ann Franks Interview Transcript Are you familiar with the Relationship Privacy Act that was recently passed in Texas? If so, do you have any comments, or insight on how well this law is structured in protecting someone who becomes the victim of revenge porn?

Yes, I'm familiar with the law. I advised a couple of legislators during the drafting process. Every state approaches the issue slightly differently, and Texas's law is quite strong, providing not only for criminal penalties but civil penalties. Those civil penalties mean that victims have the possibility of holding perpetrators financially accountable for the damage they cause, as well as to obtain court orders to stop the material from being distributed further. The law also makes threatening to commit this act a crime, making clear that attempting to coerce or exploit someone using intimate material is prohibited even if the individual never follows through on the threat. Abusive partners frequently use the threat of sexual exposure to prevent their partners from leaving or from reporting physical abuse; other abusers often use the threat of distribution as a way to get money or obtain additional private material. It is significant that Texas's law does not require that the perpetrator intend to harm the victim, which demonstrates that lawmakers properly understood that perpetrators may have various motives and the key element of the crime is the violation of consent.

Do you think the mainstreaming of pornography has contributed to the issue of revenge porn?

It's worth asking why, in a society where people can access every form of sexually explicit material for free within seconds from the privacy of their homes, there is a market for pornography that has been made without the consent of the people depicted. If consuming pornography were only about the desire to watch sex acts, the virtually unlimited supply of pornography produced by people who willingly participated in its creation should really be sufficient. Why is it that men - and I must say men, because the consumers and distributors of "revenge porn" are overwhelmingly male - want to look at women who have not consented to be looked at? Why is the lack of consent actually arousing, as opposed to distressing or repulsive? There is something deeply dysfunctional about a society that gets off on the unwilling exposure of women's bodies. Nonconsensual pornography is only partly about sex - it's also about the entitlement that men feel towards women's bodies. It's a way for men to tell women that they have no sexual autonomy, that women's bodies exist for male pleasure, that if women will not freely offer their bodies to men that men will simply take them.

Many opponents are concerned that any criminal legislation regarding revenge porn will impede on free speech, but they fail to consider that the First Amendment protects some forms of speech, but not others forms. What do you think about the First Amendment concerns that surround revenge porn criminal legislation?

Any law regulating expression must be carefully drafted so as not to violate First Amendment principles, and the laws I have helped draft reflect this care. But many critics of revenge porn laws 46

don't understand the First Amendment very well - they seem to think it means that all regulation of expression is "censorship." Many laws regulate expression in some way: laws relating to fraud, insider trading, conspiracy, threats, voyeurism, identity theft, trade secrets, HIPAA, extortion, child pornography, copyright, just to name a few. The burden is on critics of nonconsensual pornography laws to demonstrate why sexual privacy shouldn't receive the same legal protections as other forms of privacy. If it doesn't violate the First Amendment to prohibit people from using your financial data without permission, why would it violate the First Amendment to prohibit using your sexual data without permission? It's important to recognize, too, that allowing people's privacy to be invaded this way itself undermines the First Amendment, because it undermines the freedom of expression for victims and potential victims. Allowing the publication of private sexual information makes people afraid to express themselves intimately, which leads to self-censorship.

Do you think labeling this crime “revenge porn” contributes to a lack of urgency to make criminal legislation since pornography implies — and usually is considered – a consensual act?

It's important to note that lawmakers and activists didn't give this behavior that name. "Revenge porn" is the name that the men (because it is mostly men) who create, distribute, and consume this material gave it. It's a misleading term in many respects, especially the "revenge" part. Activists tend to use the term "nonconsensual pornography" to focus on the lack of consent rather than a particular motive. The "porn" part is complicated. First, it's not clear that the term does or should imply consent (it certainly doesn't in the context of child porn). Second, and more importantly, it's difficult to find another word that conveys how the material is being distributed for the purpose of sexual entertainment. "Revenge porn" sites directly and explicitly present the most private and intimate moments of a person's life as masturbation material.

Most of the discourse regarding this issue focuses mainly on women, do you think men are being affected by this problem more than we are aware of? And if so, do you think that if this issue affected men at the same rate that it would be taken seriously?

Men, especially men who are sexual minorities, are certainly being victimized by this conduct (we hear from quite a few male victims at CCRI) though the majority of victims are female. I think as with domestic violence and sexual assault, some men are reluctant to identify as victims because of rigid stereotypes about masculinity. I think it's fair to say that we would see a difference in the way we treat this problem both socially and legally if it affected men as often as it affected women. Men dominate lawmaking, law enforcement, the judicial process, and politics, as well as business and technology industries, so their interests dictate what we take seriously as a society.

Civil recourse does not seem to be taken as seriously as criminal recourse do you think the push for using civil legislation covertly discounts the criminal act of revenge porn?

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Victims of nonconsensual pornography benefit from having more, not fewer options, so it is a very good thing that civil remedies are being used wherever possible. There are lots of hurdles to civil litigation, of course, including the time and money it takes to bring a case as well as the concern that litigation will bring more publicity to the private material. But civil remedies often include the possibility of preventing the abuser from distributing the material further and obtaining compensation for the harm they've experienced. What people sometimes forget is that many wrongful acts can be pursued using both criminal and civil approaches - the two are not mutually exclusive. It's odd that some people think that the theoretical availability of civil remedies for nonconsensual pornography means there is no need for criminal laws. That's like saying that wrongful death actions eliminate the need for murder prosecutions. Our society criminalizes conduct that harms not only individual victims, but society as a whole. Nonconsensual pornography certainly qualifies: by destroying victims' privacy, peace of mind, physical safety, careers, educational opportunities, and mental health, it creates harms that are equal to or greater than many other crimes, e.g. theft, trespass, or voyeurism.

Is there a legal reason why terroristic threats and extortion, that are often associated with revenge porn, are considered less criminal because they come via the Internet?

Not all threats are criminal matters; only sufficiently serious ones. Assessing the seriousness of a threat turns on many factors, including the means of communication, the relationship between the parties, and the context generally. The Internet does not (or at least should not) inherently change the nature of the calculus used to assess the seriousness of a threat, but it can be harder to determine whether a comment was meant threateningly or jokingly when it's expressed, for example, in emojis in an app. There's also a sense among some law enforcement that the Internet just isn't as "real" as other forms of communication, a mindset that is fortunately starting to change as society embraces a broader understanding of our interconnectedness with technology. The Internet has also greatly increased anonymity and pseudonymity, which makes investigating and prosecuting threats and extortion much more difficult.

The Communications Decency Act was originally made to empower website administrators in the removal of harmful or indecent materials; however, it currently is being used by revenge porn website administrators as a way to continue the distribution of victims’ images, and participate in a secondary re-victimization of victims.

Do you believe this Act should be repealed or amended?

I don't think Section 230 should be repealed - it serves an important, free-speech-protective function that helps facilitate online communication and innovation. If Mark Zuckerberg could be hauled into court every time someone used Facebook to threaten or defame another person, Facebook would probably not exist. But I do think that Section 230 should be interpreted less expansively by the courts than it has been to date. Section 230 distinguishes between providers of interactive computer services, who have broad immunity for third-party content, and information content providers, who do not. Generally speaking, Platform A shouldn't be punished for what 48

User B does on the platform. But what if Platform A isn't just providing a neutral platform for users to do what they like, but is in fact benefiting from or soliciting users to do certain bad things?

In my view, Platform A should be responsible in that case. Revenge porn site owners shouldn't be able to argue that they just provided a space for people to do whatever they want; if they encouraged or profited from harmful behavior, they should be held accountable for that. But I believe that Section 230 does allow us to hold them responsible - the problem is that courts often don't seem to understand this (this is a fairly complicated issue that I explain in more detail in this post, if you're interested:http://www.huffingtonpost.com/mary-anne-franks/section-230-thelawless-internet_b_4455090.html).

Civic Engagement Article one for the YWCA: Introduction to The Relationship Privacy Act The Relationship Privacy Act was passed in 2015 by the state of Texas. This bit of legislation is important in the fight against what is commonly known as revenge porn, or non-consensual pornography. Revenge porn refers to the act of leaking an ex-significant others intimate photos and/or video to the internet along with their personal information. This breech of privacy is meant to shame, harass, extort, and demean the victim for whatever perceived wrong that was committed against the perpetrator. And more often than not it is women who find themselves the intended targets of this type of crime.

The relationship privacy act ensures that the citizens of the state of Texas, both men and women, have the ability to maintain their privacy in the event that someone that they once were involved with decides to reveal intimate information on the internet. While many are celebrating Texas for their willingness to keep up with the ways that people use technology to abuse people, there are many in the law community that believe that any criminal legislation targeting revenge porn is a threat to our first amendment rights, and that civil laws are the best way to broach the issue of revenge porn. However, many advocates of criminal prosecution within law community see the passage of the Relationship Privacy Act as a boon. Non-consensual pornography advocate Dr. Mary Ann Franks, law professor at the University of Miami, explains that “every state approaches the issue slightly differently, and Texas's law is quite strong, providing not only for criminal penalties but civil penalties. Those civil penalties mean that victims have the possibility of holding perpetrators financially accountable for the damage they cause, as well as to obtain court orders to stop the material from being distributed further. The law also makes threatening to commit this act a crime, making clear that attempting to coerce or exploit someone using intimate material is prohibited even if the individual never follows through on the threat. Abusive partners frequently use the threat of sexual exposure to prevent their partners from leaving or from reporting physical abuse; other abusers often use the threat of distribution as a way to get money or obtain additional private material. It is significant that Texas's law does not require that the perpetrator intend to harm the victim, which demonstrates that lawmakers properly understood that perpetrators may have various motives and the key element of the crime is the violation of consent.� Ultimately this 49

new law is sound legislation that provides citizens with recourse. Perpetrators of this crime now have reason to rethink committing such an act.

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Submission Five

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My air conditioner was broken. That was the only reason that the windows of my apartment were open. Luckily, it had been raining all day and the temperature was in the low 70s. But I was anxious about more than my air conditioner. I didn't feel all that secure with the windows open even with my trusty noise maker, my dog, taking her fifth siesta of the evening nearby. I was anxious because earlier in the day I had emailed Paul Elam about a possible interview on the topic of revenge porn. I had done some preliminary research on him earlier in the day, and I was pretty sure that he would be a good person to interview on the opposing side of this issue. However, after his reply stating that he would be happy to speak with me, I finished a lengthy profile on him, all I could think was what had I just done? I slept fitfully nervous that I had made a mistake. This is a man that states "fuck feminist" on his twitter page, who has been said to have numerous problems with women, and a rabid following of men that feel the same way and are said to have harassed women writers just because they did not agree with them. How had my college capstone paper suddenly become an issue that made me concerned about my own privacy and safety?

Revenge porn, or nonconsensual pornography as activist call it, is a term that is still fairly new to the English lexicon. It has popped up over and over again in the last few years on websites like Jezebel, The Atlantic, and ABC News. Conversations and debates about how this was happening, the issues that faced women that found their privacy invaded, the horror of having their images posted all over the internet, the idea of having awkward conversations with employers, family, significant others. Reaching out to law enforcement only to be met with baffled looks, superior smirks and amused titillation, only to be told that what is happening to them is not a crime and there is nothing that they can do to help. Meanwhile, their images are being examined by faceless men, their bodies being ridiculed, their personhood being reduced to ashes with every additional keystroke.

Helplessness and anxiety wrap their blunted and meaty fingers around the necks of these women, as they realize that their images are accompanied by addresses, phone numbers, places of employment, and social media links. The threats roll in via phone call and social media. Nowhere is safe.

At some point through all this they realize that if the police can't help them maybe lawyer can, and this is where things get even more interesting. Out of all 50 states only 25 52

of them have revenge porn legislation. So everything that happens from this point forward in the victims' journey is dependent on what legal recourse is available to her. In the 47 states without legislation that addresses revenge porn, a lawyer may suggest that she pursue a civil case against the person who posted the intimate images. Of course civil court means she would have the opportunity to win monetary damages against the person, and that's about it. Another option is to file a copyright infringement claim. Of course she would have to apply for a federal copyright, pay the associated fess, send all of the images in which will not be returned - and wait to see if the Library of Congress will accept her claim. If they do, she then can demand that all websites posting her copyrighted images remove said images immediately. But since we are dealing with the internet nothing every really goes away, so this would be a fight for the long haul, once the images are removed from one site they are likely to pop up again somewhere else, meaning that, again, she must have her lawyer send out cease and desist notices. Oh, and did mention that all copyrighted material is logged into the Library of Congress? Several states have seen the need for criminal legislation regarding this issue. Criminal legislation across the 25 states that have decided to take a stand against this type of harassment varies, some classify non-consensual pornography as a misdemeanor, some as a felony, and some like Texas, classify it as both a civil and criminal violation, with varying degrees of punishment.

The issue that many legal scholars dispute is that criminal legislation violates the first amendment.

This argument has gained weight within the issue of revenge porn when senior staff attorney at the ACLU focusing on First Amendment rights, Lee Rowland, stated publicly that "Just passing a law that says it's illegal to publish a nude image without consent, that's not going to pass the courtsl.] The terms are so broad it risks making venerable institutions like libraries and photography collectives into criminals for sharing an images of torture at Abu Ghraib or the child being napalmed in Vietnam. Nobody says privacy issues don't exist - they absolutely do. But there are many places where public interest outweighs harm done" (Inverse). So what exactly is free speech? The first amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise 53

thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

However, freedom of speech is about protecting speech, and not all speech is protected. I asked noted professor of law at The University of Miami, Dr. Mary Anne Franks about this first amendment concern and how non-consensual pornography strokes the concerns of censorship, "many critics of revenge porn laws don't understand the First Amendment very well- they seem to think it means that all regulation of expression is 'censorship.' Many laws regulate expression in some way: laws relating to fraud, insider trading, conspiracy, threats, voyeurism, identity theft, trade secrets, HIPAA, extortion, child pornography, copyright, just to name a few." The first amendment concerns seem to stem from the idea that people who participate in the discrimination of revenge porn have the right to say whatever they please about the ex-lovers that they want to humiliate, whether we agree with what they are doing or not. Additionally, the opponents of criminal legislation often fall back on the idea that we already have laws that can be used to address the issues that face victims of revenge porn civil laws and that these laws are perfectly acceptable to stem the issues that come from this issue. The issue with civil legislation is that they are not created to address this specific issue, they fail to provide the needed structure that allows victims to have images removed from websites that specialize in this type of content. This is an especially important aspect of the revenge porn discussion because many of these websites charge victims to have their pictures removed from these sites. Within many of the academic articles that I read proposing to utilize copyright and tort laws -both forms of civil legislation- as a combatant of revenge porn, there seemed to be an under lying belief that civil law was serious, but not as serious, as criminal legislation, which led me to wonder, is civil just a fall back for things that the criminal courts don't want to deal with? "Civil remedies often include the possibility of preventing the abuser from distributing the material further and obtaining compensation for the harm they've experienced. What people sometimes forget is that many wrongful acts can be pursued using both criminal and civil approaches -the two are not mutually exclusive. It's odd that some people think that the theoretical availability of civil remedies for nonconsensual pornography means there is no need for criminal laws. That's like saying that wrongful death actions eliminate the need 54

for murder prosecutions." So there are a lot of questions about the legal courses that best fit this issue, but the underlying problems of revenge porn are based on society's insistence that women do not participate in having sexual autonomy. The more information I pursued on this topic the more I was bombarded with the fact that women are often the targets of this type of crime. Paper after paper, headline after headline, there was another story about a women who had her images stolen or provided the images to a significant other, and as I came to the end of each article and entered the comments section there were always men and women stating how dumb people are because they share images of themselves. There is the perception that women who participate in sexting got what was coming to them. Never mind the fact that people have been participating in this type of behavior long before the internet and smartphones were in every home. I contacted Sociologist Dr. Chauntelle Tibbals to ask about sexting and pornography. I know the word sexting is new, but is the behavior? Dr. Tibbals argues that "Sexting is an evolution of a collection human behaviors that've always been present - the pursuit of physical sexual interaction. Before people were sexting, maybe they were emailing, calling on the phone, visiting on the porch while parents peeked through the curtains, writing letters, sending messages by carrier pigeon, etc etc. What we are seeing is simply a modern, tech-evolved behavior that's always been present." So the anger and dismissal that I was witnessing seemed more about punishing these women for being sexual, and getting caught, than noting that this type of intimate behaviors have always been around and simply evolved with the times and technology.

With the dawning of the internet, pornography made the leap from being limited to black and white photos stuffed in a hidey-hole, to a surplus of old Playboy magazines delivered in brown wrapping, to the dusty VHS tapes hidden in the back of a closet, to being at the tips of everyone's fingertips. Gone are the days of men skulking about in sunglasses and trench coats to attend their local smut dispensary, now every sexual scenario anyone could ever dream of is just a tube site away. With the intersection of pornography and technology we have witnessed porn stars become household names-Jenna Jameson, to Sasha Grey, to James Deen-on to the subsequent celebrity sex tape-Pam and Tommy Lee55

and finally, the quest for infamy via sex tape-Kim Kardashian. Of course there is a trickledown effect in all this, photographs and video technology right there in the palm of one's hand makes it easier to for anyone to get in on the action. But there is something else bubbling along underneath the surface. Feminist have split along the lines of pornography, can women who participate in porn actually consent to this form of sex work? Or, are women practicing their rights of sexual autonomy by participating in pornography? The answers to these questions depends on who you ask, but I was curious about the terminology of revenge porn, which is mainly used as a vernacular term, while nonconsensual pornography is a term preferred by activist. Obviously either term insinuates a problem, but the pornography part of both of these terms bothered me. I pursued several sources to define the term pornography, Google provided the definition "printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate erotic rather than aesthetic or emotional feelings," while Merriam-Webster stated that it is "the depiction of acts in a sensational manner so as to arouse a quick intense emotional reaction," and the legal definition was termed as "The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest." There is a disconnection in our society when it comes to sex, and pornography. Since sex is not openly spoken about, but pornography seems to have become a euphemism for sex. Dr. Tibbals explains, “What I do see as a problem though is a lack of sex education (or even the ability to speak about sex) in our culture contributing to a massive tendency to misappropriate porn as educational. Porn is NOT a sex ed tool, but people look at as such because it’s the easiest option in a world that can’t speak about sex frankly. And when people copy what they think they see in porn, especially without having a conversation with their partner first, all sorts of problems can emerge.”

Copy what they see in porn. Is that why we have seen men use the results of sexting as a tool to exert sexual power over women? "You don't want to be with me anymore, so I'll show you bitch?" With all the conversations being had about revenge porn there was a side that seemed awfully quiet; men. There were several instances of men talking about how 56

despicable the act of extorting women or seeking revenge against them by way of shaming them publicly, but where were the voices of the men that pursue this type of past time?

What were the men's rights activist in this fight? And what did they have to say about this issue? Enter Paul Elam, Founder and CEO of prominent men's rights blog A Voice for Men. I had been made aware of him recently and looked into his website to see if I could find a stance on how men who already feel disenfranchised by society viewed revenge porn.

It was that day that my air conditioner broke down that sent off an email to him requesting an interview. Honestly, I did not expect a reply, but I had begun the process of vetting him further to find out more about his beliefs. Within eight hours of introducing myself and requesting his insight on the topic of non-consensual pornography, he replied.

It wasn't until after his reply that I finished the Buzzfeed article How Men's Rights Leader Paul Elam Turned Being A Deadbeat Dad Into A Moneymaking Movement. My anxiety was at a maximum and I couldn't close my damn windows. I didn't want my views and belief to cloud what I needed and wanted to write this paper, but what women wants to contact a man who writes things like: "I'd like to make it the objective for the remainder of this month, and all the Octobers that follow, for men who are being attacked and physically abused by women-to beat the living shit out of them. I don't mean subdue them, or deliver an open handed pop on the face to get them to settle down. I mean literally to grab them by the hair and smack their face against the wall till the smugness of beating on someone because you know they won't fight back drains from their nose with a few million red corpuscles."

The answer to that question is no one. No woman, in her right mind, wants to go through the threats and harassment that have become common place for women online when they write things that men do not agree with. There seems to be a war on feminism and if what I read about Mr. Elam was true, then I had just contacted their leader. How does a feminist/womanist, such as myself, even think to talk to someone who may decide that he 57

dislikes my moxie and sends up the smoke signal to his follower? I am a Black woman, living in a world filled with Ashley's, Amy's, and Abby's. My name is Perdita, I have never met anyone else with that name. There is exactly one actress who shares that name with me, and most of the time people scream out Pongo (!) when I tell them what my name is.

Now there are other women with my name, but we seem to be ladies who are few and far between. The closest I have ever gotten to meeting someone with a name as unusual as mine was a girl name Antigone who was also named after a Shakespearean character. Due to all of this, I am cautious on-line; and I have a love hate relationship with social media, but my name makes me easy to find. I had to ask myself was I ready to step into this? After research and contacting people who are used to interviewing people with, shall we say, undesirable views and tactics, I replied to the email and set up the interview with Elam. As the days passed and the interview time crept closer, I resolved to stay away from all of his social media platforms and any articles that had anything to do with him. I wanted to know the answers to my questions regardless of the fact that I disagreed with his views and tactics.

I prepared myself for the possibility that he would be mean to me-if he had done any research on me he might be able to glean where I stood-but, prepared my questions as a journalist should, without bias. At my core, I genuinely wanted to know how men felt about this issue, not only because they are often the perpetrators of this crime, but because as quiet as it's kept they do find themselves victims of this crime as well (how many times have you had a discussion of about dick pies?). I tried my best not to think of Elam as a boogie man that would find me through cyberspace after our conversation. So I called him, I wish I could say I wasn't shocked at how our conversation went. The man that I spoke with was pleasant, well-spoken, and completely forthcoming when answering my questions.

Was this the man that wrote about beating the tar out of women? Where was the angry, foaming at the mouth He-Man woman hater that I was weary to speak to? While keeping my anxiety to a minimum, I listened to his beliefs of how men had come to be victimized by society and seen as a scapegoat for women who abused their positioning in society as the consummate victims. So I asked him what his thoughts were on revenge porn, and this time I was confused. "I am certainly a men's rights activist [...]. [However,] I am not an advocate for guys being jerk-offs. I don't think it's appropriate to take something that is 58

personal and intimate and use it as an act of revenge. [...] I wouldn't hang out with a guy that did that, or with a women." As our conversation progressed he made many valid points about how men are victimized and socialized to fit some ideal that allows them to easily be viewed, and blamed, for things like domestic violence and sexual assault; and how they have been punished by the court system when it comes to issues of parental rights and when they find themselves accused of sexual assault. As I listened I could easily make noises in agreement to what he was saying, men are victims of domestic violence, men are socialized not to show feelings, and sometimes men are accused of rape and other crimes when they did not commit them. So I asked, do you think that revenge porn is a way for men to act out their disenfranchisement in society? "Absolutely, [although] I have to say that I think it is an inappropriate acting out [...]. Men are really good at [acting out] in dysfunctional ways, because the healthy ways for [acting out] their anger is not allowed." But here is the rub, in order to truly agree and join the bandwagon of men's rights you must-in a metaphor that Elam likes to use ripped from The Matrix-take the red pill and disregard the societal history of patriarchy, the statistical evidence regarding women being the victims more often than not in crimes of a sexual nature, and as Dr. Franks states, that "men dominate lawmaking, law enforcement, the judicial process, and politics, as well as business and technology industries, so their interests dictate what we take seriously as a society." If men still dominate society, and they do, then why is it that women still have to take up the feminist banner in order to be heard? In Mr. Elam's view, it's a woman's world and men just live in it. Ultimately, I believe that revenge porn should be tried as a criminal act. I agree completely with Dr. Franks that "victims of nonconsensual pornography benefit from having more, not fewer options, [and] that civil remedies [should be] used wherever possible. It is wonderful that many states are taking up the issue and creating legislation that protects its citizens from this crime; however, there are many questions that can be raised when a victim resides in a state that has criminal and civil legislations whereas the perpetrator lives in a state that does not have any such laws on the books. The federal government must step in to create legislation that protects victim's rights nationally, not just the people that are fortunate enough to live in a state that has already thought of a contingency plan. The issue of revenge porn is not an issue of first amendment rights, or 59

whether victims should simply use existing civil legislation to find justice, it is an argument about privacy and sexual autonomy.

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i ii See Dr. Franks interview transcript iii See Dr. Tibbals interview transcript iv Dr. Tibbals interview transcript v Much of this article focuses on Elam's personal life, but there was a lot of information about his creation of A Voice for Men, their tactics, and beliefs. vi I originally found this statement in a VICE article that referenced one of his original blog posts.