(This piece is cross-posted from University of Miami School of Law’s Race & Social Justice Law Review.)
By Nicole McLemore
Last month, the Vermont Supreme Court upheld the state’s revenge porn law against a First Amendment challenge in State v. VanBuren.[1]While the Court declined to classify revenge porn as a new category of speech excluded from First Amendment protection, it acknowledged that “extreme invasion[s] of privacy” are likely unprotected by the First Amendment.[2]The Court adopted much of the reasoning set out in the amicus brief filed by the Cyber Civil Rights Initiative (CCRI), a nonprofit organization housed in the University of Miami School of Law and headed by Professor Mary Anne Franks.[3]
Nonconsensual pornography, commonly known as “revenge porn,” is the disclosure of sexually explicit images or video without consent from the person depicted.[4]To date, 41 states and the District of Columbia have enacted laws to address the problem.[5]Vermont’s statute criminalizes the knowing disclosure of images depicting an identifiable person who is nude or engaging in sexual conduct, without that person’s consent and with the intent to harm, harass, intimidate, threaten, or coerce the person depicted.[6]The disclosure must also cause a reasonable person to suffer harm.[7] The law does not apply to 1) images involving voluntary nudity or sexual conduct in public, commercial settings, or places where a person has no reasonable expectation of privacy, 2) disclosures made in the public interest, 3) disclosures constituting a matter of public concern, and 4) interactive computer services, when a third party posts the content.[8]
VanBuren was charged with violating 13 V.S.A. § 2606(b)(1) for posting nude images of the complainant.[9]The complainant sent the images to a man using the Facebook Messenger application. VanBuren then accessed the man’s Messenger account and posted the images on Facebook, tagging the complainant in the post.[10]VanBuren moved to dismiss, asserting that the First Amendment protected the disclosure and that the complainant had no reasonable expectation of privacy in the images.[11]The trial court ruled in VanBuren’s favor. The state appealed, and the Vermont Supreme Court reversed on the facial constitutional challenge while withholding ruling on the as-applied challenge until further briefing by the parties. In essence, the Court ruled that the unauthorized disclosure of private, intimate images that do not implicate matters of public concern, likely do not constitute free speech protected by the First Amendment.
The ruling is a significant victory for victims of non-consensual pornography, but Vermont’s law is far from ideal. While the law provides some recourse for victims, this recourse is substantially limited by the law’s “intent to cause harm” provision. The statute only applies to perpetrators who disclose private images with “the intent to harass, intimidate, threaten, or coerce the person depicted.” According to a recent study by CCRI, the majority of perpetrators–79%–do not act with any such motive.[12] Many perpetrators disclose private images for financial gain, entertainment, or notoriety, and laws like Vermont’s allow those perpetrators to act without consequence. Making intent to harm an element of the offense also mischaracterizes the abuse as a form of harassment instead of a privacy invasion. As a separate court recently reasoned, “wrongful intent is inherent in the act of publishing a profoundly personal image to be and known to be private and without consent.”[13]Further, intent to harm provisions may also create separate constitutional issues with under-inclusiveness and viewpoint discrimination under the First Amendment.[14]
The Vermont Supreme Court wisely de-emphasized the law’s intent to harm provision, making clear that its ruling was based on interpreting the statute as a privacy regulation. The Court spent considerable time working through arguments about privacy and pointed to the distinction between regulation of speech on purely private matters versus matters of public significance.[15]The Court rejected the state’s argument that non-consensual pornography is “obscenity” and evaluated the Vermont statute as a content-based regulation. Though content-based restrictions are generally presumed invalid, the state may overcome the presumption of unconstitutionality by showing that a regulation is narrowly tailored to serve a compelling interest and that the regulation is the least restrictive means available to achieve that purpose.[16]The Court compared the state’s interest in preventing the unauthorized disclosure of intimate images with the state’s interest in other forms of content-based restrictions on speech, such as restrictions on the disclosure of medical information or social security numbers.[17]It reasoned that “from a constitutional perspective, it is hard to see a distinction between laws prohibiting non-consensual disclosure of personal information comprising images of nudity and sexual conduct and those prohibiting disclosure of other categories of nonpublic personal information.”[18]The court went on to hold that the statute is narrowly tailored, does not penalize more speech than needed to accomplish its aim, and does not chill speech on matters of public concern.[19]
Looking ahead, it will be interesting to see how the court evaluates the statute as applied to the defendant in VanBuren. State Defender General Matthew Valerio alluded that he may petition the U.S. Supreme Court for certiorari.[20]Regardless of the outcome on that point, Vermont’s decision is a powerful recognition that non-consensual pornography is an invasion of privacy that can be regulated consistent with the First Amendment.
Nicole McLemore is a Legal Fellow in the Legislative and Tech Policy group at Cyber Civil Rights Initiative (CCRI). She is also a Louis Phillips Miami Scholar at the University of Miami School of Law.
[1]State v. VanBuren, 2018 VT 95.
[2]Id. at 14-22, ¶¶ 29-46.
[3]See generally Cyber Civil Rights Initiative, https://www.cybercivilrights.org (last visited Oct. 9, 2018).
[4]Mary Anne Franks, “Revenge Porn” Reform: A View From the Front Lines, 69 Fla. L. Rev. 1251, 1258 (2017).
[5]40 States + DC Have Revenge Porn Laws, Cyber Civil Rights Initiative.org, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 9, 2018).
[6]13 V.S.A. § 2606(b)(1)
[7]Id.
[8]State v. VanBuren, 2018 VT 95 at 4, ¶ 6.
[9]Id. at 4, ¶ 8.
[10]Id. at 5, ¶¶ 9-10.
[11]Id. at 6, ¶ 12.
[12]2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration: A Summary Report19 (2017), http://cybercivilrights.org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf.
[13]State v. Culver, No. 2016-AP-2160-CR, 2018 WL 4179048, at *1, *5 (Wis. Ct. App. 2018).
[14]Mary Anne Franks, How to Defeat ‘Revenge Porn’: First, Recognize It’s About Privacy, Not Revenge,Huffington Post (Jun. 22, 2016), https://www.huffingtonpost.com/mary-anne-franks/how-to-defeat-revenge-porn_b_7624900.html.
[15]State v. VanBuren, 2018 VT 95 at 14, ¶¶ 31-38.
[16]U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
[17]State v. VanBuren, 2018 VT 95 at 28, ¶¶ 58-59.
[18]Id. at ¶ 58.
[19]Id. at 33, ¶ 69.
[20]Alan J. Keays, Top Court Says ‘Revenge Porn’ Law Constitutional; Defense Calls Ruling ‘Bizarre’, VT Digger (Aug. 31, 2018) https://vtdigger.org/2018/08/31/top-court-says-revenge-porn-law-constitutional-defense-calls-ruling-bizarre/.
Nonconsensual pornography, commonly known as “revenge porn,” is the disclosure of sexually explicit images or video without consent from the person depicted.[4]To date, 41 states and the District of Columbia have enacted laws to address the problem.[5]Vermont’s statute criminalizes the knowing disclosure of images depicting an identifiable person who is nude or engaging in sexual conduct, without that person’s consent and with the intent to harm, harass, intimidate, threaten, or coerce the person depicted.[6]The disclosure must also cause a reasonable person to suffer harm.[7] The law does not apply to 1) images involving voluntary nudity or sexual conduct in public, commercial settings, or places where a person has no reasonable expectation of privacy, 2) disclosures made in the public interest, 3) disclosures constituting a matter of public concern, and 4) interactive computer services, when a third party posts the content.[8]
VanBuren was charged with violating 13 V.S.A. § 2606(b)(1) for posting nude images of the complainant.[9]The complainant sent the images to a man using the Facebook Messenger application. VanBuren then accessed the man’s Messenger account and posted the images on Facebook, tagging the complainant in the post.[10]VanBuren moved to dismiss, asserting that the First Amendment protected the disclosure and that the complainant had no reasonable expectation of privacy in the images.[11]The trial court ruled in VanBuren’s favor. The state appealed, and the Vermont Supreme Court reversed on the facial constitutional challenge while withholding ruling on the as-applied challenge until further briefing by the parties. In essence, the Court ruled that the unauthorized disclosure of private, intimate images that do not implicate matters of public concern, likely do not constitute free speech protected by the First Amendment.
The ruling is a significant victory for victims of non-consensual pornography, but Vermont’s law is far from ideal. While the law provides some recourse for victims, this recourse is substantially limited by the law’s “intent to cause harm” provision. The statute only applies to perpetrators who disclose private images with “the intent to harass, intimidate, threaten, or coerce the person depicted.” According to a recent study by CCRI, the majority of perpetrators–79%–do not act with any such motive.[12] Many perpetrators disclose private images for financial gain, entertainment, or notoriety, and laws like Vermont’s allow those perpetrators to act without consequence. Making intent to harm an element of the offense also mischaracterizes the abuse as a form of harassment instead of a privacy invasion. As a separate court recently reasoned, “wrongful intent is inherent in the act of publishing a profoundly personal image to be and known to be private and without consent.”[13]Further, intent to harm provisions may also create separate constitutional issues with under-inclusiveness and viewpoint discrimination under the First Amendment.[14]
The Vermont Supreme Court wisely de-emphasized the law’s intent to harm provision, making clear that its ruling was based on interpreting the statute as a privacy regulation. The Court spent considerable time working through arguments about privacy and pointed to the distinction between regulation of speech on purely private matters versus matters of public significance.[15]The Court rejected the state’s argument that non-consensual pornography is “obscenity” and evaluated the Vermont statute as a content-based regulation. Though content-based restrictions are generally presumed invalid, the state may overcome the presumption of unconstitutionality by showing that a regulation is narrowly tailored to serve a compelling interest and that the regulation is the least restrictive means available to achieve that purpose.[16]The Court compared the state’s interest in preventing the unauthorized disclosure of intimate images with the state’s interest in other forms of content-based restrictions on speech, such as restrictions on the disclosure of medical information or social security numbers.[17]It reasoned that “from a constitutional perspective, it is hard to see a distinction between laws prohibiting non-consensual disclosure of personal information comprising images of nudity and sexual conduct and those prohibiting disclosure of other categories of nonpublic personal information.”[18]The court went on to hold that the statute is narrowly tailored, does not penalize more speech than needed to accomplish its aim, and does not chill speech on matters of public concern.[19]
Looking ahead, it will be interesting to see how the court evaluates the statute as applied to the defendant in VanBuren. State Defender General Matthew Valerio alluded that he may petition the U.S. Supreme Court for certiorari.[20]Regardless of the outcome on that point, Vermont’s decision is a powerful recognition that non-consensual pornography is an invasion of privacy that can be regulated consistent with the First Amendment.
Nicole McLemore is a Legal Fellow in the Legislative and Tech Policy group at Cyber Civil Rights Initiative (CCRI). She is also a Louis Phillips Miami Scholar at the University of Miami School of Law.
[1]State v. VanBuren, 2018 VT 95.
[2]Id. at 14-22, ¶¶ 29-46.
[3]See generally Cyber Civil Rights Initiative, https://www.cybercivilrights.org (last visited Oct. 9, 2018).
[4]Mary Anne Franks, “Revenge Porn” Reform: A View From the Front Lines, 69 Fla. L. Rev. 1251, 1258 (2017).
[5]40 States + DC Have Revenge Porn Laws, Cyber Civil Rights Initiative.org, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 9, 2018).
[6]13 V.S.A. § 2606(b)(1)
[7]Id.
[8]State v. VanBuren, 2018 VT 95 at 4, ¶ 6.
[9]Id. at 4, ¶ 8.
[10]Id. at 5, ¶¶ 9-10.
[11]Id. at 6, ¶ 12.
[12]2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration: A Summary Report19 (2017), http://cybercivilrights.org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf.
[13]State v. Culver, No. 2016-AP-2160-CR, 2018 WL 4179048, at *1, *5 (Wis. Ct. App. 2018).
[14]Mary Anne Franks, How to Defeat ‘Revenge Porn’: First, Recognize It’s About Privacy, Not Revenge,Huffington Post (Jun. 22, 2016), https://www.huffingtonpost.com/mary-anne-franks/how-to-defeat-revenge-porn_b_7624900.html.
[15]State v. VanBuren, 2018 VT 95 at 14, ¶¶ 31-38.
[16]U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
[17]State v. VanBuren, 2018 VT 95 at 28, ¶¶ 58-59.
[18]Id. at ¶ 58.
[19]Id. at 33, ¶ 69.
[20]Alan J. Keays, Top Court Says ‘Revenge Porn’ Law Constitutional; Defense Calls Ruling ‘Bizarre’, VT Digger (Aug. 31, 2018) https://vtdigger.org/2018/08/31/top-court-says-revenge-porn-law-constitutional-defense-calls-ruling-bizarre/.
