Illustration by Bloomberg View
Illustration by Bloomberg View

Once upon a time, vicious people did their hurtful work through whispers, notes and direct insults. Nowadays, they have a more insidious and repulsive weapon: revenge porn.

What is revenge porn, you ask? Consider this update to the age-old mating ritual: Boy meets girl. Boy and girl start dating. Boy and girl have fun together. Girl sends boy naked photo of herself (aka nude “selfie”). Eventually, however, girl dumps boy. In retaliation, boy posts photo of naked girl online, sometimes including her name, address and phone number.

What recourse does girl -- and it is almost always a woman -- now have? Unless she is a minor, this behavior is a clear violation of criminal statutes in only one U.S. state: California, where a law went into effect earlier this month. Even there, however, the law is unsatisfactory. Strong laws against revenge porn need to be broad enough to protect victims but narrow enough to protect free speech.

It could be argued that the First Amendment protects the right to post legal material acquired lawfully. The Supreme Court has ruled that even hurtful speech can be protected speech, most recently two years ago in a case affirming the right of a church group to picket the funeral of an Iraq War veteran to protest gay-friendly policies, including in the military.

But that speech was protected because it concerned matters of public debate. Salacious images of individuals generally don’t fall in that category, and laws can be constructed to cover the rare circumstances in which they do. (The career of a recent candidate for mayor of New York City comes to mind.)

In the absence of criminal statutes, a revenge-porn victim could sue her tormentor for invasion of privacy or infliction of emotional distress. Relatively few individuals, however, have the means to pursue a civil case, and unless the defendant is wealthy, there’s little to be gained. Without the resources of law enforcement, it can be impossible even to prove the identity of the culprit. A lawsuit would also attract additional attention to the humiliating postings.

California’s new statute attempts to deal with this by establishing penalties of as much as six months in jail and a $1,000 fine for distributing an image of the genitalia or, in the case of a woman, the breast of an identifiable person without that person’s consent. Unfortunately, the law has a glaring flaw: It applies only to images taken by the perpetrator. And 80 percent of revenge-porn cases involve a self-taken photo.

One can debate the wisdom of sharing a nude selfie. Nevertheless, the practice, common among young Americans, is perfectly legal among adults. Furthermore, it’s reasonable for someone to expect that such a photo shared with a lover will remain with the lover -- just as someone who gives a credit-card number to a merchant has the right to expect that it won’t be used to commit fraud. If it is, no one blames the victim.

Other states are experimenting with ways to fight revenge porn. In New Jersey, someone who disseminates intimate images of a person without his or her consent can be fined as much as $30,000. But if he obtained the images legitimately, the law allows him to argue that he is “privileged” to distribute them.

The New Jersey law is also open to First Amendment challenges, as is a model law advocated by End Revenge Porn, a campaign organized by Cyber Civil Rights Initiative Inc. These laws could lead to the prosecution of individuals who expose matters of legitimate public interest, such as the sexual transgressions of political figures or even sex crimes.

The California statute avoids this problem by requiring that the perpetrator act with the intention of causing distress to the subject of the photo or video. Such a clause also protects, say, a private eye for showing a husband photos of his cheating wife, or a mother for posting a snapshot of her naked toddler on Facebook.

Bad breakups and bitter ex-lovers predate the digital age, and they will outlast it. As states consider laws against revenge porn, they will have to carefully weigh the need to protect individuals from this despicable practice without unduly restricting the freedom of speech. As California and New Jersey show, they are fitfully finding their way forward.

To contact the Bloomberg View editorial board: view@bloomberg.net.