Emily Bazelon’s impassioned assault on the First Amendment, made in the names, and on the behalves of, receptive parties in failed romantic relationships, publicly shamed by their former mates, characteristically misses its mark. If speech is actionable, its kind will always already have been chilled, e.g. by statutes that penalize libel or invasion of privacy. The problem with banning “revenge porn” is that in the typical instances its content is true and its subject’s rights to privacy will have been waived through her voluntary communication thereof, by word or by deed, to the alleged tortfeasors who subsequently disseminate it against, or regardless of, her will. Under these circumstances, anti-SLAPP statutes designed to penalize the filing of lawsuits that aim to curtail protected speech, will typically require the plaintiff to pay the defendant’s legal fees and costs upon the ensuing showing that her lawsuit is unlikely to succeed on its merits in view of its Constitutional protection. Put simply, a reasonable expectation of privacy is generally waived through its subject’s voluntary disclosure of the underlying facts to any other party not bound by the duty of confidentiality. And it gets worse: if the former recipient of your sexual ardor wronged you in a way whereby she may wrong others, e.g. by infecting you with an STD, or even by screwing around behind your back in a way that exposed you to the mere likelihood of contracting an STD, your public disclosure of these facts would not be subject to liability under the privacy statutes, in virtue of being of legitimate concern to the public. Arguably, you have a duty to disclose it the general public, in proportion with your good faith belief that your perfidious ex represents a danger to others.
A fine survey of the remains of privacy’s disclosure tort can be found here.