Here's What The Constitution Says About Posting Naked Pictures Of Your Ex To The Internet

California's new law criminalizing "revenge porn" has gotten people talking about whether the First Amendment guarantees you the right to post naked pictures of your exes to the Internet.

Here's exactly what the First Amendment of the Constitution says:

The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.

Despite this guarantee, courts have established exceptions to free speech, notably defamation and child pornography. Revenge porn could be held up as another exception, since it obviously wasn't considered by the authors of America's Constitution (even if courts have ruled that some "speech" on the Internet is protected).

Victims of vindictive pornography distribution, aka revenge porn, are often women who originally shared naked pictures of themselves with their boyfriends. The distribution of the photos online can be utterly humiliating for the woman in those pictures, especially if they're attached to her name and address.

The U.S. Supreme Court has upheld the right to some pretty unsavory speech, though. In 2010, the high court overturned a law that banned videos showing graphic violence against animals. The law was intended to stop the sale of fetish videos showing women crushing kittens to death with high heels, but the Supreme Court said it was so broad it violated the First Amendment.

More recently, America's highest court ruled the Westboro Baptist Church has a Constitutional right to hold hateful protests outside military funerals. Those bizarre protests center around the military's tolerance of gays, and the high court found those demonstrations are protected by the First Amendment because they're a matter of "public concern."

This kind of unsavory First Amendment protection should extend to revenge porn, former judge Andrew Napolitano said on Fox News, where he is an analyst.

"Criminalizing the distribution of that which was freely given and freely received would be invalidated under the First Amendment," Napolitano said on Fox. "The First Amendment is not the guardian of taste."

When California was drafting its revenge porn bill, the ACLU stepped in to object to it on First Amendment grounds for a similar reason. "The posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected," the ACLU said in its objection.

The ACLU didn't object to the final version of the bill, which required that the person who posted revenge porn had to do so with the intent to "cause serious emotional distress." The final law also says the other person had to actually experience emotional distress, making it more specific than the draft the ACLU opposed.

Indeed, a "suitably clear and narrow" law banning nonconsensual postings would likely survive court challenges, UCLA law professor Eugene Volokh has written. Unlike the Westboro funeral protests, private naked photos have nothing to do with public commentary about society.

"I think the courts can rightly conclude that as a categorical matter," he wrote, "such nude pictures indeed lack First Amendment value."