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| I'll just leave this here . . . . |
By Andrew Delaney
The main question in this case is whether a statute prohibiting revenge porn is constitutional on its face. The short answer is yes. Let’s find out why.
The SCOV majority starts with a definition of what this statute—Vermont’s revenge-porn statute—prohibits. In SCOV Law’s gross-oversimplification tradition, here’s a Wikipedia entry. You’re not supposed to send nekkid pictures of anybody to other people without the nekkid person’s consent. There’re exceptions of course, but we don’t need to get into too much detail here other than to say the exceptions serve to narrow the scope of the statute. The statute provides a private cause of action for a person victimized by revenge porn, which I think is a good thing.
This case stems from Ms. VanBuren getting into her maybe-but-it’s-not-entirely-clear boyfriend’s Facebook Messenger account and finding nekkid pictures of complainant. Hence the meme headlining this post. Naturally, Ms. VanBuren posted the pictures on maybe-boyfriend’s account and “tagged” complainant. When complainant found out and tried to get Ms. VanBuren to take the pictures down, Ms. VanBuren not-so-politely refused to do so, threatened to send the pictures to complainant’s employer (a childcare facility), called complainant a “moraless pig,” and told complainant that she was going to ruin her and get revenge. Whoof.
So, Ms. VanBuren was charged with violating the revenge-porn statute. She filed a motion to dismiss. She argued that the statute “violated the First Amendment to the U.S. Constitution because it restricted protected speech and it could not survive strict scrutiny.” She also argued that complainant’s photos were voluntary and thus there was no reasonable expectation of privacy (one of the exceptions).
The State said, “Whoa, whoa, whoa,” and broke into a chorus about unprotected speech and the narrowly tailored exception. Ms. VanBuren took the photos from maybe-boyfriend’s account, not her own, and complainant certainly didn’t agree to the use here.
The trial court granted the defense motion. It concluded that the State didn’t show there were no less restrictive alternatives available. Nor did the State address why civil penalties were not reasonable and effective alternatives.
Strict scrutiny is strict.
So, the State filed a petition for extraordinary relief, which was required in this case due to an interesting procedural quirk. You can read all about it in the footnote here.
The majority begins with a discussion of the facial validity of the statute. This is a question of law and gets de novo review. Though the majority goes into detail, we’ll make it simple. The First Amendment isn’t absolute and revenge porn isn’t clearly protected speech under any current construct of First Amendment jurisprudence. The majority declines to speculate that SCOTUS might carve out a new protection for it.
So we move to whether revenge porn is categorically obscenity (which, as you may know, is not protected under the First Amendment). While some revenge porn might be obscenity, the majority reasons that it’s not a categorical classification. The majority notes that “the State interest in this case focuses on protecting the privacy, safety, and integrity of the victim subject to nonconsensual public dissemination of highly private images.” So, while in the majority's view there’s some justification for treating revenge porn as a categorical exception to free speech—like child porn—not all revenge porn is obscene. Accordingly, the majority concludes that obscenity isn’t the right category.
The State next argues that revenge porn is an extreme invasion of privacy. Again, there’s a lot of detail here, but the bottom line is that the majority isn’t ready to make a categorical exception from First Amendment protections for an alleged extreme invasion of privacy. SCOV notes that the State makes a compelling argument but because SCOTUS hasn’t yet decided that revenge porn deserves a categorical exception, SCOV won’t either.
But just because nonconsensual pornography doesn’t fall into a categorical exception doesn’t mean the analysis is over. “The critical question is whether the First Amendment permits the regulation at issue.” So, we need to look at whether the State has a compelling interest in regulating revenge porn and whether the statute is narrowly tailored to serve that interest. Spoiler alert: we have a winner.
The majority reasons that the low value of purely private speech coupled with the potential severe harm to folks “arising from nonconsensual publication of intimate depictions of them,” and other uncontroversial and analogous restrictions all add up to a compelling state interest. So, while the majority isn’t willing to categorically exclude revenge porn from First Amendment protections, it does reason that it doesn’t “hold a whole lot o’ water” in the strict-scrutiny rubric. In general, revenge porn is not comment on a matter of public concern.
Compare that, of course, with Westboro Baptist Church and their unique brand of political speech, which—because it comments on matters of public concern—does receive First Amendment protection from civil liability.
The majority reasons “harm to the victims of nonconsensual pornography can be substantial.” It can wreck a person’s reputation in the community. It’s humiliating and can cause severe emotional distress.
The majority notes that we value the privacy of personal information. Doctors and banks can face hefty fines for disclosing it. So, preventing revenge porn, at least in the majority's view, furthers a compelling government interest.
That brings us to the narrowly tailored requirement. Here, the majority reasons that the statute provides a narrow definition of unlawful nonconsensual pornography. It’s limited to a confined class of content. It includes a rigorous intent element. The images prohibited are “precisely defined” and there’s a requirement that “the disclosure . . . be one that would cause a reasonable person ‘physical injury, financial injury, or serious emotional distress.’” And there are a number of exceptions.
I can't help but point out here that having read the statute, I'm pretty sure those pictures of me during bath time at two years old fall within the statute. Consider yourself warned, mom.
The majority gives a little clarification on the no-reasonable-expectation-of-privacy exception in the statute, reasoning that if someone poses naked in a public park or poses naked in private and then posts the picture in the public park later, there’s no fundamental difference.
And so, the majority concludes that the statute is narrowly tailored to serve a compelling state interest and the statute is constitutionally valid on its face.
Then there’s a wrinkle. Because the briefs focused almost entirely on the facial challenge to the statute, there wasn’t a whole lot about the “as applied” aspect of this case. The majority directs the parties to brief the issues before it analyzes the facts of this case under the statute, which means we’ll probably see a further decision in this case in the near future.
I guess this means that the trial court is partially reversed, but SCOV holds onto this one for further proceedings in which it will determine Ms. VanBuren’s fate.
Justice Skoglund dissents. She agrees with the trial court that “the statute abridges freedom of speech protected by the First Amendment and, thus,” is unconstitutional.
Justice Skoglund reasons that the statute is a content-based restriction on speech. The images need not be obscene to run afoul of the statute, they need only be nudes. Content-based restrictions on speech are presumed invalid. The government bears the burden of showing constitutionality. In Justice Skoglund’s view it does not meet that burden.
Disseminating “revenge porn” may be repulsive and harmful. But our civil justice system can deal with it. Speech in general should not result in criminal liability. “And, the First Amendment protects us all with an even hand.”
That’s the necessarily short version. Are you Team Majority or Team Dissent? Tell us why in the comments.
The majority gives a little clarification on the no-reasonable-expectation-of-privacy exception in the statute, reasoning that if someone poses naked in a public park or poses naked in private and then posts the picture in the public park later, there’s no fundamental difference.
And so, the majority concludes that the statute is narrowly tailored to serve a compelling state interest and the statute is constitutionally valid on its face.
Then there’s a wrinkle. Because the briefs focused almost entirely on the facial challenge to the statute, there wasn’t a whole lot about the “as applied” aspect of this case. The majority directs the parties to brief the issues before it analyzes the facts of this case under the statute, which means we’ll probably see a further decision in this case in the near future.
I guess this means that the trial court is partially reversed, but SCOV holds onto this one for further proceedings in which it will determine Ms. VanBuren’s fate.
Justice Skoglund dissents. She agrees with the trial court that “the statute abridges freedom of speech protected by the First Amendment and, thus,” is unconstitutional.
Justice Skoglund reasons that the statute is a content-based restriction on speech. The images need not be obscene to run afoul of the statute, they need only be nudes. Content-based restrictions on speech are presumed invalid. The government bears the burden of showing constitutionality. In Justice Skoglund’s view it does not meet that burden.
Can revenge porn cause extreme emotional distress? Oh, yes. However, while the majority finds a compelling State interest in preventing the nonconsensual disclosure of nude or sexual images of a person obtained in the context of a confidential relationship, I cannot agree that, in this day and age of the internet, the State can reasonably assume a role in protecting people from their own folly and trump First Amendment protections for speech.The dissent reasons the statute is not narrowly tailored. A civil right of action is enough. There are ambiguities throughout the statute “concerning the scope of its coverage, even with the limiting interpretation crafted by the majority.” Criminal punishment for “revenge porn” violates the First Amendment no matter how thin one slices the bologna.
Disseminating “revenge porn” may be repulsive and harmful. But our civil justice system can deal with it. Speech in general should not result in criminal liability. “And, the First Amendment protects us all with an even hand.”
That’s the necessarily short version. Are you Team Majority or Team Dissent? Tell us why in the comments.
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