Revenge Porn Legislation and the First Amendment

By Jeremy Saland

oseph Campbell, a musician Frank Ocean advocated bruised eye or bloodied lip. mid-20th-century a more aggressive and “eye-for- Buoyed by our nation’s obses- scholar of compara- an-eye” approach when it comes sion with social media, “me first” tive religion credited by to jilted lovers. Ocean asserted, culture, and insatiable desire for George Lucas for influ- “If someone breaks your heart, instant gratification with little Jencing Star Wars, poignantly just punch them in the face. Seri- thought about the ramifications wrote, “We must let go of the life ously. Punch them in the face and of our actions, abusers have a we have planned, so as to accept go get some ice cream” (https:// new vehicle to inflict overwhelm- the one that is waiting for us” tinyurl.com/y62q8kg2). Even ing emotional and psychological (https://tinyurl.com/y5khnlga). though the latter attitude is harm, among other injuries, to Although quite relatable to the starkly different than the former, the subjects of their jealousy and changing landscape and uncer- neither reaction to anger, sadness, frustration. Commonly referred tainty of the COVID-19 world in and despair is likely unique to to as revenge porn, this form which we find ourselves, Camp- these two men, nor their respec- of online harassment allows a bell’s advice is no less valuable in tive contemporaries. scorned lover—emboldened by a multitude of contexts, includ- What is of grave concern, how- a cowardly sense of security due ing times of grief, sorrow, and ever, is that the consequences to remoteness and lack of person- despair precipitated by failed of the Oceanic philosophy are to-person interaction—to unleash relationships and unrequited potentially far more insidious with a simple click of a button an love. In contrast to Camp- and permeating than the unde- untold number of intimate images

bell, Grammy Award–winning niably ugly and unacceptable of a former lover or partner on the RyanKing999/iStock via Getty Images Plus

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PUBLISHED IN GPSOLO, VOLUME 37, NUMBER 5, SEPTEMBER/OCTOBER 2020 © 2020 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. Internet or flood the e-mail in- THE DYNAMICS OF of the sexual or intimate parts boxes of that person’s employer, REVENGE PORN of another person, these laws friends, or family members with Before addressing CRUDIIA and did not strike at revenge porn’s recordings and other humiliating other revenge porn statutes, for heart. Take, for example, the images and videos. the few unfamiliar with the vio- crime of unlawful surveillance While hoping mutual respect lative conduct that necessitated found in the New York Penal and restraint is a silver lining to criminalization and civil liability, Law. Originally enacted in 2003, the COVID-19 pandemic, wish- imagine a typical situation involv- this statute, like many of its kind, ful thinking and optimism only ing your jealous ex-partner angry only applied to instances where get us so far. Optimism alone is over your romantic relationship a perpetrator made a recording no cure to revenge porn’s propa- that ran its course. Unable to without the targeted individual’s gation. Add the ubiquity of the move on, this ex decides not to knowledge. Problematically, the Internet and camera phones, as confront you, for example, by statute did not address instances well as the speed and potential permanency with which revenge porn is uploaded and prolif- The ramifications of erated, and you are left with a sickening public health crisis revenge porn can demanding its own vaccine and cure. In fact, as far back as 2014, be catastrophic to studies have shown that 10 per- cent of ex-partners threatened the victim’s career to post these kinds of compro- mising and private photos or and relationships. videos on the Internet, and about 60 percent of those followed through on those threats (Lov- keying your car or showing up at of consensual recording nor ers Beware: Scorned Exes May your workplace. Although such did it criminalize the distribu- Share Intimate Data and Images actions would unquestionably be tion of pictures no matter how Online, McAfee, 2013; https:// frightening, your ex instead sets or when they were secured. To tinyurl.com/y5envkvk). Unfor- fire to your privacy interests and remedy this enforcement issue, tunately, just as these figures have professional life by posting your New York State legislated a new undoubtedly increased since that intimate photos or videos to the offense in 2014, dissemination of time, there are few uniform plans Internet. Whether these images an unlawful surveillance image, to combat this conduct. Instead, were taken with consent or sur- thereby making it illegal to share victims are left with a cocktail of reptitiously without permission or sell these unlawfully obtained federal, state, and local laws to is of no consequence when col- recordings. Sure, district attor- safeguard them from the con- leagues, friends, and family now neys could now prosecute tagions of shame, harassment, gaze—without filter—on your offenders who secretly placed sextortion, and other ills. For- private life, naked body, and sex- cams in bathrooms and later dis- tunately, however, the Uniform uality. Emotionally debilitating, tributed the images, but these Civil Remedies for Unauthor- and with no guarantee the Inter- and similar statutes highlighted ized Disclosure of Intimate net will ever be scrubbed of these a glaring hole in law enforce- Images Act (CRUDIIA), drafted images, the ramifications can be ment’s ability to combat revenge by the Uniform Law Commis- catastrophic to your career, rela- porn in its far more common sion (ULC) in 2018, has, in part, tionships, and mental health. form—when the depicted person attempted to provide a com- consented to the initial recording mon and unified approach to STATE REVENGE PORN but not the later distribution. legislation that our elected rep- LEGISLATION In large part due to the activ- resentatives across the United Even though most states have ism of their constituents to States could use as guidance to long criminalized non-consensual remedy the growing revenge codify revenge porn laws. photography or video recording porn epidemic, state legislatures

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PUBLISHED IN GPSOLO, VOLUME 37, NUMBER 5, SEPTEMBER/OCTOBER 2020 © 2020 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. came around and recognized the legislation, attempted to remedy legislation addressing revenge failings of their otherwise well- some of these issues and create porn must, given the nature of the intentioned efforts. For example, a framework for future statutes. conduct, look to the substance on the heels of New York City’s Not immune from First Amend- and content of what the speaker revenge porn law for its five bor- ment encroachment, however, the is conveying, as opposed to the oughs, New York State made the ULC has run into roadblocks time or place of that speech. This unlawful dissemination or pub- of its own. Proposed in 2018, kind of content-based restriction lication of an intimate image a CRUDIIA would allow litigants subjects the legislation to “strict misdemeanor in 2019. At the time to secure actual damages, statu- scrutiny” by the courts, rather of this writing, 46 states and the tory damages, attorney’s fees, than more permissive and lenient District of Columbia also have punitive damages, and disgorge- review. Police Dept. of Chicago laws on the books criminal- ment of profits should plaintiffs v. Mosley, 408 U.S. 92 (1972); izing revenge porn, with only prevail in their respective revenge Reed v. Town of Gilbert, Ariz., Wyoming, Mississippi, South porn lawsuits. Despite the draft- 576 U.S. 155 (2015). There are, of Carolina, and Massachusetts ers’ noble intent, organizations course, already well-established having failed to enact such leg- including the American Civil Lib- categories of exceptions to the islation. Eleven states, including erties Union (ACLU), Electronic First Amendment when it comes to content-based restrictions, such as “obscene” material and Does criminalizing child pornography. While these examples may fall out of the First revenge porn violate Amendment box, all is not clear sailing for CRUDIIA. Right the First Amendment’s or wrong, there is no similarly protection of established exception for truthful speech that includes private and free speech? embarrassing recordings based on a portrayed party’s lack of consent. New Jersey, Illinois, and Texas, Frontier Foundation, and Media To the credit of the ACLU have even gone so far as to pass Coalition, Inc., continue to voice and others, irrespective of legislation making this kind of concerns over CRUDIIA due to CRUDIIA’s otherwise worthy conduct a felony or punishable what they believe are conflicts rationale, it would be extremely in a similar capacity. with the First Amendment. One difficult for any legislation to of their primary contentions is survive the kind of strict scrutiny CRUDIIA AND THE that, as written, the draft legisla- mandated by the U.S. Supreme FIRST AMENDMENT tion does not require a would-be Court for a new content-based Despite the admirable efforts defendant to have any malicious restriction on speech. First, such by state legislators to protect intent or knowledge of the pri- restrictions are presumptively their constituents from revenge vacy infringement. Furthermore, unlawful, and the burden would porn’s intrusive and unconscio- CRUDIIA does not mandate a be on the state to overcome the nable invasions of privacy, the plaintiff to show actual harm as various hurdles to carving out a laws have their limitations. That a result of an alleged wrongdoer’s new area of exception to the First is, criminalizing or creating civil conduct in the sharing and dis- Amendment. Additionally, there liability for this type of conduct tribution of the intimate image. is a relative wealth of law striking raised, and continues to raise, Setting aside its objective and down statutes that are similarly legitimate concerns involving merits, when analyzing the lan- aimed at protecting privacy inter- the First Amendment’s protec- guage baked into the proposed ests at the cost of free speech, tion of free speech. The ULC, statutory guidance, it is critical such as New York’s 1967 inva- an organization composed of to recognize that it intends to sion of privacy law. Perhaps most attorneys, judges, and legisla- impose a content-based restric- critically, a state would have to tors providing states with draft tion on speech. That is, any demonstrate that CRUDIIA, or

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PUBLISHED IN GPSOLO, VOLUME 37, NUMBER 5, SEPTEMBER/OCTOBER 2020 © 2020 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. the form in which it was enacted, the victim’s passwords to obtain a society simultaneously have is narrowly tailored to address compromising sexual photos innumerable people posting the legitimate interest of protect- and videos. The defendant later near-nude photos of themselves ing people from revenge porn. threatened to publish them after on Instagram or other platforms, Examining the above fac- the relationship came to an end. and then have those same people tors, CRUDIIA, in its present Ultimately, the defendant fol- recovering statutory and punitive form, appears to fail the nar- lowed through on that threat, damages from an ex-partner who rowly tailored test. Such a law sending the materials to at least shares similar “personal” pho- would impose liability even in 44 other people and posting it on tos with the depicted person’s the absence of actual damages, a website. Although the lower friends, family, or even strang- the absence of any awareness of court sentenced the defendant ers? If not, what about the many a lack of consent, and the absence to 23 months in prison and the people who do not opt in to this of any malicious intent. In prac- appeals court called the defen- decidedly less private society, tical terms, if legislatures adopted dant’s conduct “abhorrent,” the and who still care deeply about and enacted CRUDIIA, the per- fact that selfishly ugly behavior their privacy despite wanting to son who does not get crystal clear, capture intimate moments with explicit consent from the depicted their partner using the incredibly person prior to sharing an inti- accessible technology available mate image with a third-party In its present form, to us all? It is precisely when may be nonetheless liable even these kinds of new, difficult, where there was no actual harm CRUDIIA appears to and complex issues arise that the to the depicted person. While rea- Constitution truly shines. sonable people could argue in the fail the narrow test There is no doubt that states abstract whether this is an appro- and the federal government must priate standard by which to hold of constitutionality. protect victims of revenge porn a sharer of private, explicit, or and punish those who would intimate recordings, CRUDIIA’s cause harm to others to ensure provisions appear to run afoul abusers are unable to victimize of the narrow tailoring required can cause very real damage to former partners unfettered. Yet, to satisfy the First Amendment an undeserving person does not whether one wrongfully follows threshold that the Supreme Court insulate a statute from constitu- the Oceanic school of thought will no doubt review. tional protections. With this in over the Campbellian, federal, Should the Supreme Court, or mind, the Minnesota Court of state, and local governments other courts, find a violation of Appeals found that the state’s must nonetheless stay away the First Amendment, it would law, as written, criminalized First from infringing on fundamental not be the first time a court deter- Amendment–protected speech. civil liberties even to inoculate us mined as much. As recently as from the persistence of and pesti- December 2019, the Minne- CONCLUSION lence that is revenge porn. With sota Court of Appeals found its American culture continues to both fortitude and a commitment state’s revenge porn law uncon- shift dramatically with respect to to eradicating this epidemic, they stitutional for this very reason. the importance, or lack of impor- must continue pursuing the cure State of Minnesota v. Casillas, tance, placed on privacy interests and enacting the right statutes to 938 N.W.2d 74 (Minn. Ct. App. and concerns of individuals. Can do just that. n 2019). The court even held that it was not merely unconstitu- Jeremy Saland, Esq. ([email protected]), a former tional as applied but was such Manhattan prosecutor and founding member of the office’s a broad violation of free speech Identity Theft Unit, regularly represents clients targeted by protections that the court struck revenge porn, extortion, and similar forms of harassment. Saland it down in its entirety. In what also practices criminal and family law and represents students was likely not such an atypical and administrators involved in Title IX and code of conduct or exceptional circumstance, the violations at colleges and universities. He is admitted in New York defendant in this case had used State and both the Southern and Eastern Districts of New York.

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PUBLISHED IN GPSOLO, VOLUME 37, NUMBER 5, SEPTEMBER/OCTOBER 2020 © 2020 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.