So-called “revenge porn” – the online posting of intimate or nude photos of someone without their permission as a form of retribution – is such a despicable act, such an affront to privacy and decency, that it screams for a strong and swift legal remedy.

But in the race to criminalize this dark corner of the Internet, some states have enacted flawed statutes that have the unintended consequence of infringing on the First Amendment, and unnecessarily inviting legal challenges.

Maine lawmakers can avoid this trap by learning from these states, and passing a narrowly written law that targets only those disseminating material for the purposes of control, intimidation and embarrassment.

As it is written now, L.D. 679, the subject of a public hearing last week in Augusta, would make it a crime to intentionally display, distribute or share a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in a sexual act without that person’s consent.

A NEW FORM OF DOMESTIC VIOLENCE

The bill, sponsored by Rep. Ken Fredette, R-Newport, targets a practice increasingly used by perpetrators of domestic violence, who threaten to spread to the wider world – often through deplorable websites set up just for that purpose – photos meant to be kept between intimate partners.

At last week’s hearing, an attorney for Pine Tree Legal Assistance testified that more than 4 percent of protection-from-abuse and harassment cases in Portland District Court involved these kinds of threats. They are the last refuge of abusive men – and it’s almost always men – who have found their other methods of controlling and terrorizing already outlawed.

Maine is one of a dozen states considering laws regarding revenge porn, in addition to at least 13 states that already have measures in place.

States have to be careful, however, when limiting speech. The dissemination of nude photos is protected by the Constitution, and thus the banning of revenge porn rightfully faces a high hurdle in court.

UNINTENDED CONSEQUENCES

In Arizona, a law similar to L.D. 679 is having trouble clearing that hurdle. In its legal challenge to the Arizona law, the American Civil Liberties Union argued that consent can be hard to prove for the booksellers, librarians, publishers and other third-party content providers that display or sell a variety of material that may fall under this law but is protected by the First Amendment.

A broadly written law could criminalize the actions of these distributors. It could also criminalize a parent who shares with their spouse a questionable photo they have found on their child’s phone, a reporter who has evidence of a public figure engaged in a tryst or a private investigator who finds that a husband is cheating on his wife.

The Maine chapter of the ACLU has offered a way to get around these unintended consequences by tailoring the law more narrowly. To pass legal scrutiny, the law’s target should be limited to the person in the relationship who is looking for “revenge” – not third parties for whom it is difficult to know the context or subject of the material.

It also should require proof that the person intended to cause harm, and that there is no public interest in the display of the material.

FEDERAL ACTION ALSO NEEDED

Those changes will help the law distinguish between free speech and what is simply an online extension of the kind of harassment and intimidation that abusers have always used to control their victims.

The state law alone will not fully disrupt the practice. Federal action is also needed, in order to get at the producers of websites created solely to distribute revenge porn.

But it will give former lovers pause before making private images public, and give victims back some level of power in a situation that has left them vulnerable.

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