Introduction

As of 2020, approximately 223 million Americans used social media, with that number only continuing to rise into 2021.¹ Approximately 84% of Americans aged 18-29 are users of social media.² For the roughly 70% of Americans who currently use social media, checking their profile is a part of their daily routine.³ Moreover, an estimated 4 out of 5 adults have sent or received an explicit text or photo.⁴ This combination of factors makes it easy to see how someone could quickly become a victim of revenge porn.

Nonconsensual pornography (nonconsensual porn) is a sexually graphic image or video of an individual distributed without the consent of the person depicted in the media.⁵ Revenge porn is a type of nonconsensual porn, defined as the distribution of sexually graphic images or videos of an individual without their consent in the context of an intimate relationship.⁶ Typically, we think of these as images or videos which are consensually sent to an intimate partner who then shares the images outside of their original, consensually shared context.⁶ Eighty percent of nonconsensual porn is revenge porn, meaning it was originally sent between two consenting individuals in the context of an intimate relationship.⁷ Often, this content is posted alongside the victim’s name and other identifying information such as their phone numbers, emails, or social media links.⁸ Further, the content is often linked so a simple internet search of the victim’s name will return the harmful content.⁹ While the phenomenon of revenge porn first appeared in the 1980s, this destructive practice did not become widespread until around 2010.⁹

Nonconsensual porn can also appear as a wide variety of other content forms such as deepfakes, hidden camera photos, or upskirt photos which are not created by the victim.¹⁰ Although nonconsensual porn can originally be obtained both with and without the victim’s consent, all types of nonconsensual porn are publicly disseminated without the consent of the victim.⁵ Additionally, nonconsensual porn victimization is frequently connected to or compounded by a wide range of other crimes or harassment such as sextortion, troll attacks, doxing, hacking, and physical and sexual abuse of both minors and adults. Although many issues are related to and intertwined with nonconsensual porn, this article will address statutes and cases addressing revenge porn.

Some may think of this problem as “solved.” In 2015, many of the primary websites hosting nonconsensual porn, like IsAnyoneUp or U Got Posted, were removed from the internet.¹¹ Major companies, such as Facebook and Google, have also incorporated ways for victims to have nonconsensual porn removed from their platforms.¹² And, with 48 states plus Washington D.C. and Guam criminalizing this conduct,¹³ some may feel this issue has all but been resolved by the legal system.

Despite these meaningful steps, statistics unfortunately tell us that this problem has only continued to grow. In 2016, 10 million people, or 2% of Americans had reported being victims of nonconsensual porn.¹⁴ Individuals ages 18-29 generally, and women aged 18-29 specifically, as well as LGTBQ+ Americans were victimized at even higher rates.¹⁵ In 2017, the number of young Americans ages 18-29 who had become victims of nonconsensual porn jumped to 12%, an increase of over 100%.¹⁶ In 2019, a larger study suggests that the problem has only grown, showing a 400% increase in the number of victims from 2016.¹⁷  Taken as a whole, these statistics show the number of victims continues to rise at an alarming rate even though both the legal system and society as a whole have attempted to address the issue.

The harms from revenge porn are unique to each victim and can be severe. By the time a victim discovers the content, it has likely been shared by countless other individuals. Besides the obvious embarrassment, victims report suffering significant emotional distress, social impairment, and suicidal thoughts,¹⁸ while others have been driven to commit suicide.¹⁹ Victims also report being threatened with violence⁹ and being stalked or harassed by people who have viewed their nonconsensual porn online.²⁰ Victims also report being fired from their job, expelled from their school,⁹ or being forced to change their names.²¹

The onset of the COVID-19 pandemic has seemingly caused this problem to continue to grow. U.S. attorneys who are experts in this field have reported an “onslaught” of individuals seeking their help and warn that the “climate is ripe for tech abuse.”²² The New York Attorney General has noted that when considering nonconsensual porn, the COVID-19 pandemic poses a serious danger for her citizens because the number of messages sent on dating apps has increased over 70%.²³

Recent Legal Challenges

Now that 48 states plus the District of Columbia and Guam have criminalized revenge porn, and with an increasing number of people reporting victimization, it seems likely that litigation will increase. In the past four years, four Attorney General offices have successfully litigated such constitutional challenges, and courts have upheld their state’s current revenge porn laws. These cases are discussed in detail below.

Vermont, State v. VanBuren, 210 Vt. 293 (2018): In Vermont, the supreme court overturned a lower court’s decision and found that Vermont’s law banning the disclosure of nonconsensual pornography was narrowly tailored to advance a compelling state interest, did not punish more speech than was necessary to achieve the statute’s goal, and did not risk chilling speech on matters of public concern. The law in question provides that a person is liable when they knowingly disclose a visual image of an identifiable person engaged in sexual conduct; the disclosure is without the victim’s consent; the disclosure is done with the intent to harm, harass, intimidate, threaten, or coerce the victim; and the disclosure would cause a reasonable person to suffer harm.²⁴

The state first argued that speech covered by the statute (nonconsensual porn) was categorically exempt from constitutional protection because it could be categorized as obscenity.²⁵ The Vermont supreme court disagreed. The Vermont court relied on the U.S. Supreme Court’s evaluation that a state’s interest in regulating obscenity is directly tied to “protecting the sensibilities of those exposed to obscene works,” not protecting the privacy of the individuals depicted in the obscene image. The context in which an image is disseminated and the circumstances of how the image was procured may inform the obscenity analysis, but ultimately, the speech regulated by the Vermont statute still fell outside the rubric of obscenity and therefore was not categorically exempt from First Amendment protection.²⁶ The Vermont supreme court did note the state’s interest in protecting victim’s privacy was directly analogous to a state’s interest in another categorical exception, child pornography, but ultimately declined to recognize a new categorical exception until the U.S. Supreme Court did so.⁹

The state successfully argued in the alternative that the law was narrowly tailored to serve a compelling state interest. In analyzing the state’s compelling interest, the Vermont supreme court first noted that not all speech receives equal constitutional protection. Citing the U.S. Supreme Court decision in Snyder v. Phelps,²⁷ the Vermont court said that speech on purely private matters will receive less rigorous protections than speech on matters of public interest because speech on matters of public interest is “at the heart” of the First Amendment.²⁸ The court reasoned that the speech at issue here has “no connection to matters of public concern” and in fact, the statute specifically exempts disclosures made for the public interest.²⁹ The court noted that, even though revenge porn is “remarkably common,” the injuries victims endure are substantial.³⁰ Last, in finding the state’s compelling interest, the court compared the disclosure of nonconsensual porn to the disclosure of personal medical or financial records. The court found in all those instances that the “obvious” harm to be addressed “flows from the disclosure of personal information.” Accordingly, the court found the state’s interest in preventing the disclosure of nonconsensual porn to be “at least as strong” as the state’s interest in preventing disclosure of medical or financial records.³¹

Turning to the question of whether the law is “narrowly tailored,” the Vermont supreme court considered two aspects of the law: 1) that the images subject to the statute were “precisely defined, with little gray area or risk of sweeping in constitutionally protected speech” and 2) that the law only criminalized disclosures done “knowingly without the victim’s consent.”³² The  court also noted that the statute excludes constitutionally protected matter from the statute’s reach because disclosures done “in the interest of the public” are specifically exempt.⁶ The defendant argued that the statute was overbroad because it provided both criminal punishment and a civil cause of action, but the court noted that the U.S. Supreme Court has acknowledged “from the perspective of chilling speech” there is no “hierarchy” between civil and criminal penalties.³³

Illinois, Illinois v. Austin, 155 N.E.3d 439 (Ill. 2019): In Illinois, the state supreme court held that the state’s law banning the dissemination of nonconsensual porn was subject to intermediate scrutiny and overcame that level of scrutiny because it was narrowly tailored to further an important state interest identified by the legislature and did not burden “substantially more speech than necessary.” In Illinois, a person commits the offence of non-consensual dissemination of private sexual images when they intentionally disseminate an image of another who is 18 years of age or older that is identifiable from the image or information displayed in connection with the image, and is engaged in a sexual act or whose intimate parts are exposed.³⁴ The person distributing the image must have obtained the image under circumstances in which a reasonable person would have known or have understood the image was to remain private, and known or should have known that the person depicted in the image did not consent to having the images disseminated.³⁵

Like Vermont, Illinois began by asking the court to recognize a categorical exception to the first amendment for nonconsensual porn.³⁶ For reasons similar to those described by the Vermont supreme court in VanBuren, the Illinois court recognized that nonconsensual porn seems to be a “strong candidate for categorical exclusion from full first amendment protections,” but declined to recognize a new category until the U.S. Supreme Court did so.³⁷

The Illinois supreme court next determined that the law was subject to intermediate scrutiny, rather than strict scrutiny, for two independent reasons. First, the law is neutral as to the image’s content and was therefore only a time, place, and manner restriction. Second, the statute regulated matters of purely private concern.³⁸ The court explained that a restriction can either be aimed at the content of the speech or aimed at the secondary effects of the speech. If the restriction is aimed at the “secondary effects” of the speech (like a time, place, or manner restriction), then the restriction would receive a lesser scrutiny. Here, the court reasoned that the restriction was not aimed at the content, but rather at how the content was disseminated because “there is no criminal liability for the dissemination of the very same image obtained and distributed with consent.”³⁹ Second, the Illinois court held, as did the Vermont supreme court, that the law regulated the dissemination of a certain type of private information. Therefore, the law should be viewed in the same light as any other privacy regulation preventing the unauthorized disclosure of private information, such as laws preventing the unauthorized disclosure of medical records. Those laws are viewed as necessary to protect the privacy rights of Illinois citizens.⁴⁰ The Illinois supreme court also found, as did the Vermont court in VanBuren, that the law regulated speech on a “purely private concern.” The restriction was subject to less stringent analysis because the speech is not at the core of the first amendment and the public has “no legitimate interest in the private sexual activities of the victim.”⁴¹

Applying intermediate scrutiny, the Illinois supreme court first found the law served a “substantial government interest.” The court noted the “longstanding historical pedigree” of privacy-related torts and stated that the U.S. Supreme Court has never declared unconstitutional a restriction of speech on purely private matters.⁴² Recognizing the unique and significant harms that victims endure, the court also noted that it is traditional for states to exercise their police powers to protect the health and safety of their citizens. Accordingly, the court had “no difficulty” in finding that the law served a substantial governmental interest unrelated to the suppression of speech.⁹

The Illinois court found that for multiple reasons the law was narrowly tailored to serve the government’s substantial interest. First, the criminal law was a “vital deterrent” because civil actions alone are inadequate for many victims. Next, the law was restricted to images of a “private sexual nature” and only applied to images of a “discreet or personal nature.” The law was further narrowed because it only burdened speech targeted at a specific person and was limited to speech that is the “personal, direct, interactions or communications that are typically involved in a close or intimate relationship.” Lastly, the law is narrowed because the person must disseminate the image intentionally and with knowledge that they did so without the victim’s consent.⁴³ Based on these statutory requirements, the court found that the law was narrowly tailored to further an important government interest and did not substantially burden more speech than necessary.⁴⁴

The court applied similar reasoning to dismiss defendant’s arguments that the law was unconstitutional because it was overbroad, and void for vagueness.

Minnesota, State v. Casillas, 952 N.W.2d 629 (Minn. 2019): Minnesota’s statute makes it a crime to intentionally disseminate an image of another person depicted in a sexual act or whose intimate parts are exposed when the person is identifiable from the image itself, or from information displayed in connection with the image; the person disseminating the image knows or reasonably should know the person depicted in the image did not consent to its dissemination; and the image was obtained or created under circumstances in which the person disseminating the image knows or reasonably should know that the person depicted had a reasonable expectation of privacy.⁴⁵

The Minnesota supreme court found that the statute withstood strict scrutiny and was constitutional. The Minnesota court found that the dissemination of nonconsensual porn was a “broad and direct threat” to the “health and safety” of Minnesota citizens and, therefore, the state had a compelling state interest in this issue.⁴⁶ Further, the Minnesota court found that the law was narrowly tailored because it contained numerous statutory definitions and prohibited only private speech intentionally disseminated without consent.⁴⁷

As was the case in Vermont and Illinois, the state first asked the Minnesota court to recognize a new category of unprotected speech. The Minnesota supreme court found that substantial invasions of privacy “merit reevaluation. . . within the context of the First Amendment” but held that the state did not carry the “heavy burden” necessary for the state supreme court to establish a new category of unprotected speech.⁴⁸

Next, Minnesota argued that nonconsensual porn falls within three historically recognized categories of unprotected speech: obscenity, speech integral to criminal conduct, and child pornography.⁴⁹ Again, the Minnesota supreme court was unpersuaded by this argument. First, the court reasoned that nonconsensual porn does not fall under obscenity because it does not qualify as “appealing to the prurient interest” and dozens of other kinds of “non-obscene” nude photos are criminalized by the statute. With respect to speech integral to criminal conduct, the Minnesota court found private sexual images are not “offers to engage in illegal transactions” or “requests to obtain unlawful material” and therefore private sexual images rarely are used to “facilitate the commission of a crime” and do not fall within the category. Lastly, the Minnesota court “easily rejected” the argument that nonconsensual porn was considered child pornography because “the majority of private sexual images depict nude adults.”⁵⁰

Next, the supreme court declined to decide whether the law was content-based or content-neutral because the state had met its “burden under the more searching strict scrutiny analysis.”⁵¹ The court held that for a state’s interest to be “compelling,” the state must specify an “‘actual problem’ in need of solving. The problem must be ‘paramount’ and of ‘vital importance.’”⁵² The court noted that the state has a “well-recognized authority to safeguard its citizen’s health and safety” and outlined the numerous ways victims are “deeply and permanently scarred” by revenge porn.⁵³ Echoing the words of the Vermont supreme court in VanBuren, the Minnesota court said the “harm [of revenge porn] largely speaks for itself” and it “is difficult to imagine something more private than images depicting an individual engaging in sexual conduct, or of a person’s genitals, anus, or pubic area.”⁵⁴ Based on these points, the court determined that the state has a compelling state interest “in criminalizing the nonconsensual dissemination of private sexual images.”⁵²

The court then turned to the question of whether the statute was narrowly tailored and used the least restrictive means to regulate this speech.⁵⁵ The court cited five specific narrowing features as evidence that the law was narrowly tailored. First, the legislature defined explicitly what type of images are and are not criminalized by the act. Second, the mens rea requirement that the conduct be “intentional” keeps the statute from “targeting broad categories of speech” by narrowing what distributions are and are not targeted by the statute. Third, even if protected speech falls within the statute, seven explicit exemptions address protected speech, including, dissemination of images to report unlawful conduct, images related to a matter of public interest, or images disseminated for legitimate scientific research or educational purposes. Fourth, requiring that the disseminator acted without consent adds additional protections. And fifth, the court found that because of these features, the law only encompasses private sexual images, which are not “at the core” of the First Amendment.⁵⁶ The court concluded that the law survived strict scrutiny, noting that the law represents a constitutional compromise that “adequately balances the fundamental right to free speech” and a citizen’s “right to health and safety.”⁵⁷

Texas, Ex parte Jones, 2021 Tex. Crim. App. Unpub. LEXIS 464 (May 26, 2021): In this constitutional challenge to the state’s revenge porn law, an appellate court reversed a lower court’s determination that the statute was unconstitutional. As originally enacted, the statute provided that a person is liable for the unlawful disclosure of certain intimate visual material if the person discloses the material without consent, the person depicted had a reasonable expectation the material would remain private, the disclosure caused harm to the person depicted, and the disclosure revealed the depicted person’s identity through subsequent related materials or material provided by a third-party in response to the disclosed material.⁵⁸

The case involved prosecution of a person who was not involved in the encounter depicted in the image but received the nonconsensual porn and subsequently disseminated the images to others.⁵⁹ The lower court held that the law was overbroad and an unconstitutional content-based restriction because the state’s compelling interest was preventing the disclosure of intimate photographs where the depicted person had a reasonable expectation they would remain private. However, the statute did not impose a requirement that the person distributing the nonconsensual porn know the victim intended the images remain private. Because the law “could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation,” the law did not use the least restrictive means of achieving the compelling state interest.⁶⁰ The lower court held that the law was overbroad because it would apply to “too many third parties” who have no reason to know the “circumstances surrounding the material’s creation.”⁶¹

In an unpublished opinion, the Texas Court of Criminal Appeals overturned the lower court and found that the statute was constitutional.⁶² The court first determined whether the law was subject to intermediate or strict scrutiny by examining whether the law was justified without reference to the content of the regulated speech. Finding that the law only criminalized pictures of another person which were sexual, as opposed to all images depicting another person, the court determined that the law is a content-based restriction and was subject to strict scrutiny because the law seeks to protect individuals from harms that result from the intimate nature of the speech’s content.⁶³

The court found that privacy constitutes a compelling government interest when the privacy interest is “substantial and the invasion occurs in an intolerable manner.” Privacy interests have long been recognized and protected by law and the interest in sexual privacy is substantial. Sexual behavior is “the most private human conduct” so sexual privacy violations are therefore “intrinsically harmful.” Disclosing material a person reasonably expected to remain private is especially intolerable when the material shows the person’s intimate parts or shows the person engaged in sexual conduct. Accordingly, the court found a compelling state interest.⁶⁴

Because disclosing intimate visual material is, by itself, lawful and constitutionally protected, the statute only criminalizes the disclosure under “certain privacy-invading circumstances—where the depicted person: (1) has not consented, (2) has a reasonable expectation of privacy, and (3) is identified.” If there is no mens rea requirement for any of these elements, the statute would give rise to strict liability, which would raise constitutional issues.  According to the court, “it is incumbent on the Court to read the statute to eliminate those doubts so long as the statute is reasonably susceptible to such a construction.”⁶⁵

The court first analyzed the lack-of-consent requirement. The statute provides that a person commits the offense if “without effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct.”⁶⁶ Although the court found that “with the intent” did not modify “without consent,” the court “presume[d] the attachment of a culpable mental state to the character of the material to be disseminated.” Since the statute is “susceptible to a narrowing construction. . . that allows it to survive a constitutional challenge,” the court held that the legislature had intended the existence of the requisite culpable mental state to be applied to the lack-of-consent element.⁶⁷

With respect to the second element, the expectation of privacy, the court found it was also narrowly tailored to avoid the prosecution of “unknowing disclosure[s].”⁶⁸ The court reasoned that the proof necessary to establish “circumstances in which the depicted person had a reasonable expectation that the material would remain private” is the same proof that would be necessary to establish that the defendant knew or was at least aware of a substantial risk that the victim reasonably believed the material would remain private.⁶⁹ This interpretation would exclude any innocent third-party disclosures which would raise constitutional concerns. The law protected against inadvertent or unknowing disclosures by requiring the state to prove the expectation of privacy was reasonable to an ordinary person.⁷⁰

For the third element, identification of the victim, the court held the “defendant himself must intentionally disclose the material, and it is that intentional disclosure—at least as charged in this case—that must reveal the identity of the depicted person.”  The court found that although the statute prohibited revealing the depicted person’s identity in “any manner,” the statute did not “refer to a mental state but to the means of identification.”⁷¹ Reading this element in context with the first two elements, the defendant would still have to intentionally disclose the material which would in turn identify the victim. According to the Texas court, this means the statute does not “unambiguously impose strict liability on the identification element.”⁶ The court concluded that the state must prove that the defendant himself knowingly or recklessly revealed the identity of the depicted person.⁶ Because each element was sufficiently narrowly tailored, and the state had a compelling state interest, the court found the law survived strict scrutiny and was therefore constitutional.⁷²

The defendant argued that the statute was overbroad, pointing to works of art and images that may be relevant to public discourse as examples of legitimate speech that may be deterred. The court rejected the argument, holding “there is no evidence that people who willingly participate in the creation of sexually explicit art commonly do so with any reasonable expectation of privacy, and the likelihood seems remote.” Similarly, “it is doubtful that the non-consensual disclosure of sexually explicit material would be relevant to public discourse, and even if it were, there is no evidence that this would often be the case.”⁶

The Texas legislature subsequently amended the revenge porn law to address the issues identified by the lower appellate court and the Court of Criminal Appeals by adding an element requiring intent to harm the depicted person.⁷³

Indiana—State v. Katz,  No. 20S-CR-00632 (Ind. 2021): The most recent case to address revenge porn statutes was argued in June 2021 before the Indiana supreme court.⁷⁴ The state charged the defendant under Indiana Code § 35-45-4-8, which prohibits distribution of an intimate image by a person who “knows or reasonably should know that an individual depicted in an intimate image does not consent to the distribution of the intimate image.” The lower court dismissed the charges on the grounds that the statute violates both the U.S. and Indiana constitutions.⁷⁵ The lower court found the Indiana law “nearly identical” to the original Texas and Minnesota revenge porn laws, both of which were struck down by lower courts.⁶ In Texas, however, the law was eventually upheld by the Texas Court of Criminal Appeals.⁷⁶ And, in Minnesota, the law was amended by the legislature, and subsequently found to be constitutional by the Minnesota supreme court.⁷⁷ As of Nov. 5, 2021, the Indiana supreme court has not  issued a decision.

Litigation Themes

So far, state supreme courts have dismissed all constitutional challenges to existing state revenge porn laws.⁷⁸ It has been suggested that laws surviving challenge have three specific elements: intent, knowing dissemination of the content by the perpetrator, and lack of consent.⁷⁹ Although Texas’ revenge porn law differs most significantly from the other state laws, all four laws were found to include the elements described above.

Courts have applied three types of analysis finding a revenge porn statute constitutional. First, the court may examine the law as a content-based restriction subject to strict scrutiny. Second, the court may subject the law to intermediate scrutiny as a time/place/manner restriction. Lastly, courts have frequently invoked the U.S. Supreme Court’s statement in Snyder v. Phelps²⁷ that speech on purely private matters is subject to less rigorous scrutiny because it is not at the core of First Amendment protections.

Strict Scrutiny

In Vermont, Minnesota, and Texas, revenge porn laws survived strict scrutiny. In all three states, the courts found that the state had a duty to protect the health and safety of their citizens, and the revenge porn laws were part of this duty. All three state courts also cited the harms victims suffer from the dissemination of nonconsensual porn and recognized how revenge porn is an invasion of privacy. The Vermont and Minnesota courts also found their state’s interest in protecting citizens from revenge porn was analogous to other laws that prevent the disclosure of medical records or other private information because both laws serve to deter invasions of the privacy of their citizens.

Intermediate Scrutiny

In Illinois, the court took a different approach. The Illinois court instead applied intermediate scrutiny in reviewing the Illinois statute because it found the law was a content-neutral regulation. Important to the Illinois court’s decision was the finding that the exact same image, disseminated consensually, would not give rise to criminal charges. Accordingly, the court concluded that the law regulated the way the speech was disseminated rather than the content of the speech itself.

Recognition of Snyder v. Phelps

In Vermont, Illinois, and Minnesota, the courts invoked the language of the U.S. Supreme court in Snyder v. Phelps recognizing that speech on public matters is at the heart of First Amendment, but speech on purely private matters receives less protection. In those three states, all of which have similar laws, the courts recognized that the laws had been narrowly tailored because they included several exceptions to exclude, among other things, speech on public or political matters.

Categorical Exceptions to the First Amendment

All four courts found that revenge porn was not categorically exempt from First Amendment protection. Each state argued that revenge porn, like obscenity, should be exempt from First Amendment protections. Each time, the courts found that nonconsensual porn was not obscene, and thus not categorically excluded from First Amendment protection.

Vermont, Illinois, and Minnesota also asked their courts to recognize a new categorical exemption for nonconsensual porn. In each state, the court declined to do so but noted that revenge porn would be an excellent contender for a new categorical exemption. In Texas, the defendant, as part of his argument that the law was overbroad, argued that the state treated revenge porn as if it was covered by a categorical exception. The Texas court was not persuaded by the argument.

Conclusion

Future cases will further develop the law on revenge porn statutes, but the courts have so far declined to find such statutes unconstitutional.

1. Percentage of U.S. population who currently use any social media from 2008 to 2021, Statista (Apr. 4, 2021) https://www.statista.com/statistics/273476/percentage-of-us-population-with-a-social-network-profile/. [↩]
2. Id.  [↩]
3. Social Media Fact Sheet, Pew Research Center (April 7, 2021) https://www.pewresearch.org/internet/fact-sheet/social-media/. [↩]
4. Jessica M. Goldstein, ‘Revenge porn’ was already commonplace. The pandemic has made things even worse., Washington Post (Oct. 29, 2020, 8:00 AM EDT) https://www.washingtonpost.com/lifestyle/style/revenge-porn-nonconsensual-porn/2020/10/28/603b88f4-dbf1-11ea-b205-ff838e15a9a6_story.html. [↩]
5. Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 346 (2014). [↩][↩]
6. Id. [↩][↩][↩][↩][↩][↩][↩]
7. Amanda Levendowski, Using Copyright To Combat Revenge Porn, 3 N.Y.U. J. Intell. Prop. & Ent. L. 422, 426, n. 18 (2014). [↩]
8. Alexa Tsoulis-Reay, A Brief History of Revenge Porn, New York Magazine (July 19, 2013), https://nymag.com/news/features/sex/revenge-porn-2013-7/. [↩]
9. Id.  [↩][↩][↩][↩][↩][↩]
10. See Danielle Keats Citron, Sexual Privacy, 128 Yale L.J. 1870, 1904-28 (2019) (examining other types of sexual privacy invasions). [↩]
11. Carrie Goldberg, Nobody’s Victim, Fighting Psychos, Stalkers, Pervs, and Trolls 129-36 (2019). [↩]
12. Olivia Solon, Inside Facebook’s efforts to stop revenge porn before it spreads, NBC News (Nov. 18, 2020), https://www.nbcnews.com/tech/social-media/inside-facebook-s-efforts-stop-revenge-porn-it-spreads-n1083631. (See also Google, Remove non-consensual explicit or intimate personal images from Google, (April 3, 2021), https://support.google.com/websearch/answer/6302812?hl=en).  [↩]
13. Cyber Civil Rights Initiative, 48 States + DC+ One Territory Now Have Revenge Porn Laws, (accessed Aug. 9, 2021, 12:40 PM MDT) https://www.cybercivilrights.org/revenge-porn-laws/. [↩]
14. Lori Janjigian, Nearly 10 million Americans are victims of revenge porn, study finds, Insider (Dec. 13, 2016, 3:03 PM), https://www.businessinsider.com/revenge-porn-study-nearly-10-million-americans-are-victims-2016-12#:~:text=About%20one%20in%2025%20Americans,the%20Data%20%26%20Society%20Research%20Institute. [↩]
15. Amanda Lenhard, Myeshia Price-Feeney & Michele Ybarra, Nonconsensual Image Sharing: One in 25 Americans has been a victim of “Revenge Porn”, Data & Society, Dec. 13, 2016, at 5, https://datasociety.net/library/

    nonconsensual-image-sharing. [↩]

16. Half of young women have received explicit images they did not ask for, Pew Research Center, Online Harassment 2017 (Jul. 6, 2017) https://www.pewresearch.org/internet/2017/07/11/online-harassment-2017/pi_2017-07-11_online-harassment_5-01/. [↩]
17. Asia A. Eaton & Yanet Ruvalcaba, Nonconsensual pornography Among U.S. Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health Correlates for Women and Men, American Psychological Association & Cyber Civil Rights Initiative, Feb. 4, 2019, at 4, https://www.cybercivilrights.org/2019-publication (Showing a rise from 2% of respondents reporting being victims in 2016, to over 8% of respondents being victims in 2019). [↩]
18. Mary Anne Franks, “Revenge Porn” Reform: A View From The Front Lines, 69 Fla. L. Rev. 1251, 1273 (2017). [↩]
19. Erica Souza, “For His Eyes Only”: Why federal legislation is needed to combat revenge porn, 23 UCLA Women’s L.J. 101, 103 (2016). [↩]
20. Franks, supra note __ at 1263-64. [↩]
21. See Souza, supra note __. [↩]
22. Goldstein, supra note 4. [↩]
23. Press Release, New York Attorney General, Attorney General James Urges Caution to New Yorkers Against Rising Threat of ‘Revenge Porn’ in Time of Coronavirus (Nov. 18, 2020), https://ag.ny.gov/press-release/2020/attorney-general-james-urges-caution-new-yorkers-against-rising-threat-revenge. [↩]
24. Vt. Stat. Ann. tit. 13, § 2606. [↩]
25. VanBuren, 210 Vt. at 302, 306. [↩]
26. Id. at 308. [↩]
27. 562 U.S. 443 (2011). [↩][↩]
28. VanBuren, 210 Vt. at 319-20. [↩]
29. Id. at 321. [↩]
30. Id. at 321-22. [↩]
31. Id. at 322-23. [↩]
32. Id. at 324. [↩]
33. Id. at 326. [↩]
34. 720 Ill. Comp. Stat. 5/11-23.5. [↩]
35. Austin, 155 N.E.3d at 439, 466. [↩]
36. Id. at 454. [↩]
37. Id. at 455. [↩]
38. Id. at 456. [↩]
39. Id. at 457. [↩]
40. Id. at 458. [↩]
41. Id. at 459. [↩]
42. Id. at 461. [↩]
43. Id. at 463-465. [↩]
44. Id. at 466. [↩]
45. Minn. Stat. § 617.261. [↩]
46. Id. at 642. [↩]
47. Id. at 644. [↩]
48. Id. at 637-38. [↩]
49. Id. at 638. [↩]
50. Id. at 639-40. [↩]
51. Id. at 639. [↩]
52. Id. at 641. [↩][↩]
53. Id. at 641-42. [↩]
54. Id. at 642. [↩]
55. Id. at 643. [↩]
56. Id. at 643–644. [↩]
57. Id. at 645. [↩]
58. S.B. 1135, 84th Leg., Reg. Sess. (Tex. 2015). [↩]
59. Ex parte Jones, 2018 Tex. App. LEXIS 3439 (Tex. App. May 16, 2018).  [↩]
60.  Id. at *13.  [↩]
61. Id. at *16.  [↩]
62. Ex parte Jones, 2021 Tex. Crim. App. Unpub. LEXIS 464 (Tex. Crim. App. May 26, 2021) *2. [↩]
63. Id. at *15. [↩]
64. Id. at *18. [↩]
65. Id. at *18-19. [↩]
66. Tex. Penal Code §21.16 (b)(1). [↩]
67. Ex parte Jones, 2021 Tex. Crim. App. LEXIS 557 at *22, 24. [↩]
68. Id. at *29. [↩]
69. Id. at *25-26. [↩]
70. Id. at *31. [↩]
71. Id. at *33. [↩]
72. Id. at *45. [↩]
73. H.B. 98, 86th Leg., Reg. Sess. (Tex. 2019). [↩]
74. State v. Katz, No. 20S-CR-00632 (Ind. 2021). [↩]
75. Mike Marturello, Indiana’s revenge porn law ruled unconstitutional in Steuben case, The Herald Republican (Nov. 6, 2020) https://www.kpcnews.com/heraldrepublican/article_d67bfc4b-6dec-5d62-bf53-5d8b57b63590.html. [↩]
76. See Ex parte Jones, supra note __. [↩]
77. See State v. Casillas, supra note __. [↩]
78. Note that some states, including Vermont, may have had original revenge porn laws that did not withstand judicial scrutiny. VanBuren litigated the constitutionality of Vermont’s amended and current revenge porn law.  [↩]
79. Evan Ribot, Revenge Porn and the First Amendment: Should Nonconsensual Distribution of Sexually Explicit Images Receive Constitutional Protection?, 2019 U. Chi. Legal F. 521, 530 (2019). [↩]