Writing here at TPM on Wednesday, Cathy Reisenwitz floated the libertarian defense of allowing men, in an act of revenge against women (usually for daring to dump them), to upload naked pictures of the women to “revenge porn” sites. California has already narrowly banned the practice, though Reisenwitz overstated the likelihood that the criminal penalties for it will lead to more overcrowding of prisons, as the law remains a misdemeanor with jail time as the maximum penalty. Other states, including New York, are expected to follow.
Reisenwitz is concerned that free speech is in serious danger if people who don’t have permission to publish private nude photos are not permitted to publish those photos. That seems an overblown concern in a society that otherwise has some fairly strong protections over certain kinds of intellectual property. If free speech hasn’t been conquered because I can’t watch some naked lady on HBO without paying them first, it seems free speech is safe if men who want to punish women for dumping them can’t publish their naked pictures all over the Internet.
Let’s be clear: The free speech rights of men who are embittered by discovering that women are allowed to decline further relations with you are not really going to be affected if they can’t publish nude images of a woman without her permission.
Angry, abusive men are still free to go onto Reddit and gripe about how unfair it is that women are just allowed to dump you when they want. They can yell and scream all they want about their hateful, gold-digging ex-girlfriends, even without naked pictures from happier times as an illustration. They are still allowed to express the opinion that a woman who has had sex before is a bad person who deserves to be humiliated. They just will be restrained from actually dishing that humiliation out through the direct of harassment that is revenge porn.
Reisenwitz worries that laws banning misogynists from targeting individual women for abuse in this narrow way will be used for politically nefarious ends, worrying that “revenge porn laws could have kept former New York Rep. Anthony Weiner’s (D) nude selfies legally suppressed.” Color me unconvinced. Knowing that Weiner’s dick pics are out there but being unable to view them myself seems like a fair trade for a world where men are more limited in the weapons they can use to stalk, abuse, and control women.
Free speech is an important value, of course. However, there are also other important freedoms that need to be held in balance. Women’s freedom of association, for instance, is in the mix, as well, which includes the freedom to decline being used sexually by another person or persons against your will. Forcing women to be in pornography to punish them for not wanting a relationship with you is a blow against women’s basic freedom to say no. Bans on revenge porn are about establishing a woman’s right to say no to direct sexual acts, such as exhibitionism or being in porn. More than that, it’s about establishing the broader message that if a woman declines to be in a relationship with a man, the state will protect her right to do so by giving her protection when he tries to punish her for rejecting him.
As long as revenge porn is legal, it is legal for a man that you’ve rejected to force you into a relationship with him anyway, and a sexual one at that, as he uses your body for sexual ends against your will online over and over and over again. With this understanding, we’ve already got laws limiting the trade of child pornography. Free speech will survive forcing men to merely mouth their bad opinions about their exes online instead of conscripting them into pornography.
Amanda Marcotte is a freelance journalist who writes frequently about liberal politics, the religious right and reproductive health care. She’s a prolific Twitter villian who can be followed @amandamarcotte.
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