A state appeals court in Texas has ruled that a 2015 “revenge porn” law, which prohibits angry lovers from posting intimate photos of their exes online, is too broad and infringes on freedom of speech.
This ruling is absurd, and flatly, egregiously, and dangerously wrong. Quite simply, there is no right in the Founder’s Constitution to post nude photos of anyone online, whether the poster is a vengeful scorned lover or a pornographer.
The law originated from complaints from women who said they felt violated and abused when their exes posted naked or sexual images online without their consent. One woman, Hollie Toups of Nederland, found dozens of photos of herself online and organized a class action suit against the website where they appeared.
"I was kind of numb at first and when I scrolled to the bottom it showed how many people had viewed it," Toups told the Tribune. "I saw that it was thousands and with all these comments. They were saying horrible things. That's when I got scared and I felt humiliated, knowing that as I was looking, so were thousands of other people."
What the First Amendment protects is political speech, not pictures of nude people. The First Amendment was written by the Founders at a time when the Crown had sought to suppress any speech that was critical of the Crown or in support of independence for the Colonies. The Founders had fought a long, costly, and bloody war against the mightiest army in the world so that those who lived on American soil would have the freedom to express their political views without the risk of punishment.
They did not fight that war so that people would have the “right” to show pictures of naked people to anybody.
“Speech” in the Founders’ vocabulary means exactly what it sounds like: words that are coming from somebody’s mouth. To claim protection under the First Amendment, you actually have to be saying something. A picture by definition is not speech.
This is where linguistic sleight of hand has corroded our understanding of the Constitution. Somewhere along the line, somebody substituted the word “expression” in our discussion of the First Amendment for the word “speech.” Whereas “speech” means spoken words, the definition of “expression” includes words such as “show, exhibition, or illustration,” all words which deal primarily with visual communication, not spoken.
This corrupt and false substitution opened the door for untethered judges to begin finding imaginary “constitutional” protections for things like pornography, things the Founders would have regarded as abominable.
There’s no use in seeking refuge under the First Amendment’s protection for freedom of the “press,” either. This again deals specifically and only with political points of view expressed in print. The Crown had made a zealous effort to shut down newspapers and handbills and pamphlets which criticized the king and argued for independence.
The Founders were determined that the new nation would be a place where an independent press would feature robust political debate with no interference from the central government. This protection included protection for political cartoons, which were visual to be sure. But again, these cartoons were part of the public debate over political issues.
The Texas constitution, which actually ought to be the only constitution under discussion here, is no help for revenge pornographers either. In fact, it makes things worse for them. For it says (emphasis mine), “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege.” Whatever else is true, there is no question that publishing nude photos of a former lover in order to embarrass them is a gross abuse of the privilege.
Because the ruling is from a state appeals court, it only applies to about a dozen counties in northeast Texas. Let’s hope and pray that this contagion is contained before it spreads and contaminates the rest of the country.
