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But if we’re attacking revenge porn as the particular evil that it is, we might not want to simply rely on obscenity laws.Since Lucrezia’s image cannot be presumed to be inherently obscene, we want the jury to consider at least the lack of consent, Disclosing pictures and videos that expose an individual’s genitals or reveal an individual engaging in a sexual act without that individual’s consent easily qualifies as a “patently offensive representation” of sexual conduct.
That the State’s burden would be non-trivial is an upside from the perspective.This is a risk that we have to take—for our statute to be upheld under anything resembling current obscenity law, we have to be willing to bow to the standards of the community, which means making the image’s violation of those standards an element of the offense.So our proposed statute might have a basic framework something like this: [The definition of sexual conduct in (A) and (B), I’ve lifted from Texas’s obscenity statute.So this statute has the advantage over others proposed of fitting into the current framework of First Amendment law.
An appellate court finding it constitutional might be misguessing what the Supreme Court means by “patently,” but it wouldn’t be discovering a new category of unprotected speech, nor even expanding a currently recognized category.
The harder we make it for Giovanni to be convicted, the more likely it is that our statute will pass muster.