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Oregon Man Convicted Under Revenge Porn Law Claims It Is Unconstitutional

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Revenge porn can be terribly harmful. But not all laws punishing it are legally sound.

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Oregon passed a revenge porn bill in June of last year criminalizing the “unlawful dissemination of [an] intimate image” of a person with the “specific intent” to humiliate or harm that person’s reputation. Over a year later, 31-year-old Benjamin Barber became the first individual to be convicted under the law after he uploaded explicit videos of himself and an ex-girlfriend onto multiple adult websites without her permission, according to the Washington County sheriff’s office. Now, Barber is calling the law “literally unconstitutional” and is reportedly threatening to sue the state for violations of his First Amendment rights.

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A Washington County judge sentenced Barber to six months in jail followed by five years of probation on Dec. 1. The Oregonian reports that he ordered Barber to avoid all contact with the woman and destroy all images of her that he possessed; the judge also prohibited him from using a computer for non-work purposes. Barber will not, however, have to register as a sex offender.

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Prosecutor Marie Atwood told the Oregonian that the defense had argued during the trial that Barber held the rights to the videos and that the woman involved had no right to privacy. After the trial, Barber told a reporter from CBS-affiliate KOIN6 News that his ex-girlfriend had initially tried to blackmail him with the videos.

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According to the Cyber Civil Rights Initiative, 34 states and Washington, D.C. all have laws in place against revenge porn. According to the CCRI’s 2013 report, 90 percent of nonconsensual pornography victims are women, and over half of victims reported that the explicit material was posted by an ex-boyfriend. 93 percent of victims said they have suffered “significant emotional distress” as a result of having explicit photos or videos of them shared online without their permission.

Barber’s contention that these sorts of laws might be legally dubious is actually not quite as bogus as it might sound. For example, in September 2014, the American Civil Liberties Union sued the state of Arizona for its revenge porn statute, claiming the law’s vagueness could lead to the prosecutions of those who publish nude photos without the subject’s consent that are “newsworthy, artistic, educational, or historic,” such as the Pulitzer Prize-winning photograph known as “the Napalm Girl.” The case settled in the ACLU’s favor in July 2015 with federal judge ordering state prosecutors not to enforce the law.

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Given revenge porn’s relative newness, it has not been formally named in the list of unprotected speech under the First Amendment, which currently includes incitement, threats, obscenity, child pornography, defamation of private figures, criminal conspiracies, and criminal solicitation. According to the American Bar Association, some attorneys have argued that ‘revenge porn’ falls under the obscenity category, while others defend amateur porn sites by citing Section 230 of the Communications Decency Act, which protects websites from being prosecuted for user-submitted content. Northwestern Law professor Andrew Koppelman wrote in an article for the Emory Law Journal that “[l]aws prohibiting revenge pornography thus violate the First Amendment as the Court now understands it.” He called for the courts to add a clear exception to the First Amendment to ban revenge porn. “The harm that this speech causes is, however, so severe that an exception to ordinary free speech principles is justified,” he wrote.

So far, successful prosecutions for revenge porn are uncommon; the aforementioned legal wrinkles notwithstanding, Oregon’s conviction under its new law indicates a step in the right direction toward protection of privacy rights, especially for women and young people—the primary demographic of revenge porn victims. While a six-month sentence does not come close to matching in length the years of possibly irreversible damage to a woman’s reputation as a result of having explicit images circulating online, hopefully convictions like this one will act as a much-needed deterrent.

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