March 28, 2016
Re: Opposition by Media Coalition and Motion Picture Association (MPAA) to Minnesota House File 2741 and Senate File 2713
The Cyber Civil Rights Initiative is a nonprofit organization dedicated to combating online abuse and harassment. It has advised dozens of state legislators as well as members of Congress regarding legislation protecting intimate privacy. CCRI’s Legislative and Tech Policy Director, Mary Anne Franks, is a professor of Law at the University of Miami School of Law specializing in constitutional and criminal law who has drafted influential model state and federal legislation regarding “revenge porn,” more accurately described as “nonconsensual pornography.”
CCRI supports Minnesota House File 2741 and Senate File 2713. The Media Coalition and MPAA’s opposition to these bills makes clear that the Coalition views the vicious and destructive invasion of intimate privacy as a form of free speech. In doing so, the two organizations demonstrate a callous disregard for the victims of this gratuitous and unjustifiable form of voyeurism. They also demonstrate a profound lack of understanding of both the nature and harm of non-consensual pornography and of basic constitutional doctrine.
The Media Coalition characterizes the harm of nonconsensual pornography as speech that is merely “offensive” or “embarrassing.” But nonconsensual pornography is first and foremost an invasion of privacy, and the Supreme Court has never held that there is a First Amendment right to publish private, naked or sexually explicit images of people without their consent. Rather, the Court has repeatedly affirmed the right to be protected against the disclosure of “purely private” matters.
The two groups are unable to offer a single example of protected speech that would be prohibited by the statute. This is unsurprising, given that the statute is narrowly drafted to prohibit only intentional disclosures of only sexually explicit images and videos without the depicted individuals’ consent and only when a reasonable person would have known the images were to remain private, in addition to including an exception for disclosures that “relate[] to a matter of public concern,” when “dissemination serves a lawful public purpose.”
Strangely, both the Media Coalition and the MPAA urge the addition of an “intent to harass” provision, claiming that such a requirement would dissolve their constitutional objections. But if there were any genuine First Amendment issues raised by the statute, they could not be answered by a requirement that literally singles out certain viewpoints for punishment. Such a provision would in fact create First Amendment objections on the grounds of under-inclusiveness and viewpoint discrimination, in addition to rendering the law incoherent and duplicative of existing law.
Adding an “intent to harass” requirement would mean that the people who distributed the private, intimate photos of celebrities, including Hollywood star Jennifer Lawrence, would be free to do so with impunity because they were merely providing “entertainment.” It would mean that revenge porn site operators would be free to destroy the lives, careers, reputations, and personal relationships of thousands of people, mostly women, because they are not motived by a desire to harass but by a desire to make money. It would mean that rapists who distribute the recordings they made of their sexual assaults on social media in order to brag about their exploits would be free to continue to do so.
These points, as well as other points raised by the two groups, are addressed in detail in the accompanying marked-up response to the Coalition’s memo here and to the MPAA’s memo here.