After a state appeals court ruled that a Texas law criminalizing revenge porn violated the First Amendment, the state attorney general asked the court to reconsider. The law made it a crime to post intimate images online from a relationship without consent, punishable with up to a year and jail and a $4000 fine. The chief justice wrote for the three-judge panel that the law was too broad and would criminalize acts by third parties unaware that images were intended to be private. (Statesman, April 19, 2018, by Chuck Lindell)
Andrew Koppelman argues in issue 3 of the Emory Law Journal, 2016, that the U.S. Supreme Court should reject their position against carving out new exceptions to First Amendment protections and validate one for revenge porn. He says that it is possible to make a law that is not overly broad and quotes Danielle Citron in proposing the phrasing, “An actor commits criminal invasion of privacy if the actor harms another person by knowingly disclosing an image of another person whose intimate parts are exposed or who is engaged in a sexual act, when the actor knows that the other person did not consent to the disclosure and when the actor knows that the other person expected that the image would be kept private, under circumstances where the other person had a reasonable expectation that the image would be kept private.”
University of Iowa student Anne Harrison writes in The Journal of Gender, Race & Justice, Volume 18, that the U.S. Supreme Court has held “where matters of purely private significance are at issue, First Amendment protections are less rigorous.” For instance, cyber-stalking laws have been ruled not to violate the First Amendment.