“Of course, I can imagine a few situations in which such depictions might contribute to public debates. But those situations are likely to be so rare that the law’s coverage of them wouldn’t make it “substantially” overbroad (even if the “no legitimate purpose” proviso is seen as too vague to exclude those valuable non-consensual depictions of nudity). Any challenges to the law based on such unusual cases would therefore have to be to the law as applied in a particular case. A facial challenge asking that the law be invalidated in its entirety, based on just these few unconstitutional applications, would not succeed.
I recognize that United States v. Stevens (2010) held that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” and that First Amendment exceptions be limited to “historic and traditional categories long familiar to the bar,” such as obscenity, defamation, fraud, incitement, and the like, which are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire (1942).
But even under this sort of historical approach, I think non-consensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with non-consensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.”
Comment:
Volokh’s credentials, both as a libertarian and a scholar, are impeccable.
Even so, even if constitutional, it doesn’t mean that the new law might not be poorly drawn up.
As a matter of fact, what I saw of the California law, with its reliance on proof of malicious intent, seemed quite toothless.
But it is at least a starting point.
Contra Volokh, an across-the-board law against the posting of nude/sexual pictures, without the subject’s explicit consent, would be better. Naturally, entertainment or pornography involving consenting adults would be excluded. So the charges of “anti-porn” would be defanged. Porn addicts can still download triple XXX stuff to their heart’s content. They just can’t download material with non-consenting subjects.
I think that kind of simple clear law is less likely to be gamed, actually, than one that is hemmed in by too many ifs and buts.