Nudity as Obscenity

not entirely unforeseen consequences

I’ve been writing for eight years now about how revenge porn statutes are unconstitutional because the Supreme Court has defined “unprotected speech” as “speech within narrow categories of historically unprotected speech,” and nothing about revenge porn puts it into any heretofore recognized category of unprotected speech.¹

If Texas legislators were to learn to read, read a book or two, and then rewrite the statute to cover only malicious transmission, would it pass First Amendment muster? For it to do so, the Supreme Court would have to define a new category of unprotected speech, since revenge porn doesn’t fit into any of the existing categories—fighting words, obscenity, libel, and child pornography.

That could happen, but it’s a long way down the road.

The Court has recognized that there might be hitherto-unrecognized categories, but required that the government provide evidence of such a category. Evidence that revenge porn was historically unprotected is going to be hard to fin…