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Hastings Constitutional Law Quarterly

Authors

Snehal Desai

Abstract

Revenge pornography is an increasingly prevalent form of cyberharassment, in which embarrassing and sexually explicit pictures and videos are posted on the internet without the consent of the depicted individual. Due to the First Amendment's protection of speech and expression, victims have had little legal recourse against their cyber-harassers. Many states have started to pass laws prohibiting revenge pornography, which have fortunately created some protections for victims. However, the recent passage of such statutes has also led to the debate about their constitutionality.

This Note first examines revenge pornography from various First Amendment perspectives, concluding that courts should carve out a new category of unprotected speech under New York v. Ferber. This Note next analyzes and posits changes for California's revenge pornography law. Namely, California should expand its law to protect victims who take "selfies," punish webmasters profiting from revenge pornography postings, and increase the severity of punishment for violations of the law.

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