(This piece is cross-posted from University of Miami School of Law’s Race & Social Justice Law Review.)
(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.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.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.
Nonconsensual pornography, commonly known as “revenge porn,” is the disclosure of sexually explicit images or video without consent from the person depicted.To date, 41 states and the District of Columbia have enacted laws to address the problem.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.The disclosure must also cause a reasonable person to suffer harm. 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.
VanBuren was charged with violating 13 V.S.A. § 2606(b)(1) for posting nude images of the complainant.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.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.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. 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.”Further, intent to harm provisions may also create separate constitutional issues with under-inclusiveness and viewpoint discrimination under the First Amendment.
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.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.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.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.”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.
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.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.
State v. VanBuren, 2018 VT 95.
Id. at 14-22, ¶¶ 29-46.
See generally Cyber Civil Rights Initiative, https://www.cybercivilrights.org (last visited Oct. 9, 2018).
Mary Anne Franks, “Revenge Porn” Reform: A View From the Front Lines, 69 Fla. L. Rev. 1251, 1258 (2017).
40 States + DC Have Revenge Porn Laws, Cyber Civil Rights Initiative.org, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Oct. 9, 2018).
13 V.S.A. § 2606(b)(1)
State v. VanBuren, 2018 VT 95 at 4, ¶ 6.
Id. at 4, ¶ 8.
Id. at 5, ¶¶ 9-10.
Id. at 6, ¶ 12.
2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration: A Summary Report19 (2017), https://www.cybercivilrights.org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf.
State v. Culver, No. 2016-AP-2160-CR, 2018 WL 4179048, at *1, *5 (Wis. Ct. App. 2018).
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.
State v. VanBuren, 2018 VT 95 at 14, ¶¶ 31-38.
U.S. v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
State v. VanBuren, 2018 VT 95 at 28, ¶¶ 58-59.
Id. at ¶ 58.
Id. at 33, ¶ 69.
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/.
Four members of the Cyber Civil Rights Initiative (CCRI) were featured speakers at the 2017 U.S. Department of Justice Cybercrime Symposium, which was held on September 15 at the University of Maryland, Francis King Carey Law School. CCRI’s former Victim Services Director Annmarie Chiarini delivered the lunchtime keynote address. Danielle Citron, a member of CCRI’s advisory board as well as the Morton & Sophia Macht Professor of Law at University of Maryland, spoke on “Balancing Free Speech Interests and Public Safety.” Mary Anne Franks, CCRI’s Vice-President and Legislative & Tech Policy Director and professor of law at the University of Miami School of Law spoke on “The Public Safety Role of Social Media and Technology Companies.” Carrie Goldberg, CCRI board member and founder of sexual privacy law firm C.A. Goldberg PLLC, spoke on “Holding Offenders Accountable.”
The symposium also featured Professor Erwin Chemerinsky, dean of the University of California Berkeley School of Law and nationally distinguished scholar of constitutional law, who spoke at length on the topic of “revenge porn” and the First Amendment. Describing himself as a “staunch advocate of freedom of speech,” Chemerinsky provided a comprehensive explanation of why laws prohibiting nonconsensual pornography do not violate free speech.
In particular, Chemerinsky voiced his unequivocal support for the Intimate Privacy Protection Act (IPPA), sponsored in 2016 by Congresswoman Jackie Speier (D-CA) and drafted in collaboration with CCRI. *Update: The bill was re-introduced on November 28, 2017 as the Ending Nonconsensual Online User Graphic Harassment Act of 2017 (ENOUGH Act).* Though a number of states already have laws against nonconsensual pornography, Chemerinsky explained, “The state statutes are too weak. There really needs to be a federal statute here.”
Chemerinsky noted that his support of criminal laws against nonconsensual pornography is “one of the rare instances where I’m on the opposite side of the ACLU,” which has opposed legislation prohibiting nonconsensual pornography on free speech grounds. The ACLU has also argued that any criminal prohibition of nonconsensual pornography must require “intent to cause harm to the victim.” Chemerinsky disagreed strongly with this position, saying, “I don’t see anything in the First Amendment that says there has to be an intent to cause harm to the victim. If the material is intentionally or recklessly made publicly available, I think that is sufficient, and I don’t think it should just be about intent to cause harm to the victim. Imagine that the person is putting the material online for profit or personal gain. That should be just as objectionable as to cause harm to the victim.” Summarizing the matter succinctly, Chemerinsky stated, “Any time there’s the dissemination of sexually explicit material without consent, that should be impermissible.”
Chemerinsky also referenced the need to amend Section 230 of the Communication Decency Act, which, in its current form, poses challenges in forcing internet providers to remove sexually explicit images disseminated without consent.
To learn more about and support CCRI’s work to end nonconsensual pornography, visit us here.
(This piece is cross-posted from Refinery29.)
All of us share private information with third parties at some point in our lives, from home addresses to medical records to credit card numbers. Many of us share private information several times a day. The behavior is so routine that we don’t think about the fact that sharing or even storing private information creates a risk that it will be misused. If we do think about it, most of us believe we can trust third parties to keep our private information confidential, and that if they do not, they – not us — will be punished. Yet there is one type of private information that is treated very differently: nude or sexually explicit photos and videos. The response to breaches of sexual privacy is all too often to blame the victim.
Consider this: while credit card fraud is outlawed everywhere in the U.S., the unauthorized use of nude or sexually explicit photos and videos is legal in more than a dozen states and only prohibited under narrow circumstances in many others. We do not scrutinize the purchasing habits of credit card fraud victims or suggest that such fraud is a natural consequence of trusting a third party with private information. Stolen credit card numbers don’t appear in search engine results for a victim’s name. There is no trendy name or dedicated fan base for credit card fraud, but there is an entire “revenge porn” industry dedicated to the promotion, solicitation, and consumption of private sexual information without authorization. Our social attitudes towards sexual habits are clearly far more conflicted and complicated than our social attitudes towards financial habits. In a society that is both fascinated by and fearful of sex, and which has historically prioritized male sexual prerogatives over female sexual autonomy, sexual abuses predominantly perpetrated by men against women are treated as natural, trivial, or deserved. This has been true of rape and sexual harassment, and is true now of nonconsensual pornography.
Dr. Franks giving testimony in favor stronger legislation in Illinois alongside the sponsor, Representative Scott Drury.
While Americans are eager consumers of sexually explicit material, we are also highly judgmental about sexual conduct. We are particularly and paradoxically moralistic about the sexual practices of women and girls: female “sexiness” is simultaneously celebrated and condemned. This leads to the paradox of men and boys pressuring women and girls into sexual activity – including sharing nude photos – and then shaming them for it. It is not a coincidence that the primary targets of revenge porn sites, large-scale photo hacks, and mass distributions of nude photos are female. The abuse can irreparably damage victims’ intimate relationships, educational and employment opportunities, mental health, and right to self-expression.
Thankfully, things are starting to change. In 2013, few people had ever even heard the term “revenge porn,” the tech industry had barely acknowledged the problem, and only three U.S. states had criminal laws against the abuse. That was the year that the Cyber Civil Rights Initiative began its work, beginning with its campaign against nonconsensual pornography. As CCRI’s Vice-President and Legislative & Tech Policy Director, I have had a front-row seat to many of the sweeping changes in the legal, technological, and social landscape on this issue in recent years. The courageous efforts of victims, along with the work of advocacy organizations, have had remarkable impact. As of March 2017, nearly every major tech industry leader, including Twitter, Facebook, Google, and Microsoft, has banned nonconsensual pornography and implemented measures to help victims report and request removal of private intimate material. Thirty-five states and Washington, D.C., have now passed laws criminalizing nonconsensual pornography.
This is tremendous progress in a fairly short amount of time. But much work remains to be done. As the recent Marines United photo scandal has shown, far too many people — including men who are supposed to represent the best of American society — still consider it acceptable to distribute and consume naked photos of women without their consent, and shift blame for their horrific conduct on to the women themselves. The tech industry has provided little to no information to the public about the enforcement or effectiveness of their policies, and most platforms have so far failed to move beyond reactive approaches to the problem to implementing the preemptive measures necessary to counteract this abuse.
On the legal front, many of the state laws passed in the last few years are ineffective, especially those that classify the abuse as a misdemeanor and are limited to perpetrators who intend to harass their victims. Prosecuting nonconsensual pornography cases frequently requires extensive investigation and resources, and prosecutors are often unable to commit either when the crime is classified as a mere misdemeanor. Though “intent to harass” requirements might seem reasonable, the Marines United case is only the most recent reminder that perpetrators are often not motivated by a personal desire to harass and that they may in fact go to great lengths to hide their actions from their victims. While some may feel that the First Amendment should protect Marines who ruin the reputations, careers, and lives of their fellow Marines by distributing private intimate material, as well as shielding revenge porn site owners hoping to make money and rapists seeking to share their recorded exploits, the First Amendment in reality demands no such result.
The single development that has the most potential to change social norms, provide legal clarity, and encourage effective tech industry response is the passage of a strong, carefully crafted, and constitutionally sound federal criminal law to protect sexual privacy. Congresswoman Jackie Speier (D-CA)’s Intimate Privacy Protection Act (IPPA), which has earned broad bipartisan support, is that law. If passed, it would make clear to the general public, law enforcement, and the courts that distributing private, intimate visual information without consent is inconsistent with our society’s commitment to privacy and equality. A federal criminal prohibition of nonconsensual pornography would apply across the country, provide a uniform definition of the crime, and make it possible to shut down the websites that traffic in this material. This would in turn send a powerful signal to the tech industry about how seriously it should take this issue as it develops new products and platforms. The Intimate Privacy Protection Act would serve as a strong deterrent to would-be perpetrators, provide the possibility of justice for victims, and protect the right of all of us to keep our most personal information private.
What you can do to help? Call your representatives in Congress and ask them to support IPPA.
Dr. Mary Anne Franks is a Professor of Law at the University of Miami School of Law. She is also the Legislative & Tech Policy Director and Vice-President of the Cyber Civil Rights Initiative (CCRI), a nonprofit organization dedicated to combatting online abuse.
(This piece is cross-posted from The Huffington Post.)
The recognition that the right to privacy extends to intimate photographs and videos is one step closer to becoming reality. On July 14, 2016, Congresswoman Jackie Speier (D-CA) introduced the Intimate Privacy Protection Act (IPPA). If passed, the bill would make it a crime to distribute private, sexually explicit photographs or videos of people without consent. In a press release about the bill, Congresswoman Speier said, “The damage caused by these attacks can crush careers, tear apart families, and, in the worst cases, has led to suicide. What makes these acts even more despicable is that many predators have gleefully acknowledged that the vast majority of their victims have no way to fight back. … My bill will fix that appalling legal failure.”
The Cyber Civil Rights Initiative is proud to have worked closely with Rep. Speier’s office in the drafting of this urgently needed legislation. Several CCRI members spoke at the press conference announcing the bill, including CCRI’s President and Founder Dr. Holly Jacobs, Vice-President and Legislative & Tech Policy Director Dr. Mary Anne Franks, Carrie Goldberg, and Anisha Vora. As of July 16,2016, this bipartisan bill has eight co-sponsors, including Reps. Katherine Clark (D-MA), Ryan Costello (R-PA), Gregory Meeks (D-NY), and Thomas Rooney (R-FL). The bill is the product of extensive collaboration with constitutional scholars, tech industry leaders, civil liberties groups, and victims’ advocacy organizations. In addition to CCRI, the bill is supported by Facebook, Twitter, the National Organization for Women, the National Democratic Institute, the Information Technology and Innovation Foundation, Feminist Majority, and Girls, Inc.
Much progress has been made in the United States with regard to nonconsensual pornography since CCRI began its work in 2013. We at CCRI have advised legislators in more than 30 states in their efforts to draft legislation to protect sexual privacy, and the number of states with laws addressing nonconsensual pornography has increased from 3 to 34 in that time. Unfortunately, a number of these state laws are flawed. Many fail to recognize nonconsensual pornography as a privacy violation, some fail to provide adequate constitutional safeguards, and none can be a complete response to this borderless phenomenon. A federal law is necessary to provide clarity, deterrence, and efficiency in addressing this crime.
The Intimate Privacy Protection Act does exactly what its title suggests: it recognizes that the right to privacy extends to sexual information. Numerous privacy laws protect the confidentiality of medical records, financial information, and many other forms of sensitive information. But existing laws offer much less protection for our most sensitive information: private photographs and videos of nudity or sexual activity. IPPA seeks to change that.
A handful of civil liberties groups, most notably the ACLU, have attempted to discredit and even defeat laws that would protect thousands of individuals from sexual exploitation. They have often attempted to do so in the name of the First Amendment. Their claims that IPPA, and state laws that resemble it, are overly broad or chill free speech have been unequivocally rejected by constitutional law experts. These include Professor Erwin Chemerinsky, Dean of UC Irvine School of Law, who, in addition to being one of the most influential legal scholars in the country, has argued several cases in front of the Supreme Court. According to Professor Chemerinsky, “There is no First Amendment problem with this bill. The First Amendment does not protect a right to invade a person’s privacy by publicizing, without consent, nude photographs or videos of sexual activity.”Eugene Volokh, a First Amendment expert and professor at UCLA School of Law who is well known for his skepticism of “most privacy-based speech restrictions,”stated that the Intimate Privacy Protection Act is “quite narrow, and pretty clearly defined.” Neil Richards, a First Amendment and privacy scholar and professor at Washington University School of Law, called IPPA “a very well-drafted law.”
Likewise, claims that the Intimate Privacy Protection Act will stifle the tech industry have been contradicted by the fact that major leaders in the industry support the bill. These include both Facebook and Twitter. According to Amanda Faulkner, US Public Policy Manager of Twitter, the company is “glad to see Rep. Speier and so many of our safety partners taking the lead on this important issue, and we’re proud to stand with them in support of this legislation.”
The overwhelming support for the bill from experts and stakeholders has forced its few critics to resort to desperate tactics, in particular appealing to deliberately misleading terminology and farfetched hypotheticals. Representatives of the ACLU have insisted that the bill must explicitly include language about “malicious intent.” But such language isn’t found in other privacy laws, including many supported by the ACLU itself. That is because privacy laws recognize that the act of knowingly invading the privacy of another is itself malicious. When compelled to clarify, critics have admitted that their real demand is a motive requirement, and a remarkably arbitrary one at that. According to the ACLU, nonconsensual pornography should only be prohibited if the offender intends to harass the victim.
The absurdity of this position is evident when one considers the range of motives offenders have for violating victims’ privacy. For example, revenge porn site owners, rapists who send naked photos of their victims to their friends, and police officers who pass around intimate photos taken from the phones of women they’ve detained are not trying to harass their victims. The unauthorized disclosure of private information is no less harmful or less deserving of punishment when it is motivated by a desire for money, to gain reputational status, or to provide “entertainment.”
Insisting on an arbitrary motive requirement completely unsupported by First Amendment doctrine is so patently absurd that critics are forced to turn, finally, to the cheapest tactic of all: the parade of horribles. Unable to find a reasonable ground for their objections, these critics invoke an increasingly implausible series of farfetched scenarios in the hopes of frightening their audience into a negative reaction. Hence the hysterical claims that this bill will mean prison sentences for anyone who shares baby pictures, publishes photographs of war crimes, or forwards photographic proof of politicians’ sexual impropriety. These wild speculations ignore the fact that the bill is extremely narrowly drafted and includes many exceptions. It does not apply to anyone who had no way of knowing that the person depicted did not consent to the distribution or to any disclosures made for lawful purposes, including disclosures made in the public interest.
Those unfamiliar with legal drafting might be forgiven for thinking that a law is invalid if it could ever be applied in an unpopular or unreasonable way. But those who study and practice law know that laws cannot be expressed as mathematical equations. No matter how carefully drafted a law is, there will always be hard cases. The Supreme Court has made this point clear: “there are limitations in the English language with respect to being both specific and manageably brief.” CSC v. Letter Carriers (1973). No statute can “satisfy those intent on finding fault at any cost,” but the Constitution does not require the satisfaction of impossible standards. What is required, rather, is that laws be “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.” In another case, the Court made clear that though “laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect – at best a prediction – cannot, with confidence, justify invalidating a statute on its face… overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma (1973). The plainly legitimate sweep of this statute is to prohibit the knowing distribution of private, sexually explicit photos and videos with reckless disregard for the victim’s lack of consent and for no justifiable purpose.
The criticisms aimed at this bill are depressingly familiar. The pretense of First Amendment concerns, the trivialization of the harm inflicted, the limitless sympathy for perpetrators and the utter indifference to victims – these same tactics have long been used to criticize legislation against domestic violence, sexual assault, stalking, and sexual harassment. Perhaps the most disturbing claim made by critics of the bill is that sexual consent is ambiguous and that people should never be punished for recklessly disregarding it. That dangerous logic has helped create the sexual assault crisis we are experiencing today, and has greatly contributed to the phenomenon of nonconsensual pornography itself. Consent always matters, whether for the sexual activity is physical or virtual, and there is simply no excuse for disregarding it.
We are deeply grateful to Congresswoman Speier, the co-sponsors of this bill, and all of the legal experts, advocacy groups, tech companies, and victims who have helped to bring this bill into existence. As Prof. Chemerinsky has stated, “The Intimate Privacy Protection Act needs to be passed by Congress to deal with a serious problem that has arisen with the development of the internet and social media: posting, without consent, of nude photographs and videos of sexual activity.” We join Prof. Chemerinsky in hoping that Congress will act quickly to enact this bipartisan, constitutionally sound, and necessary legislation.
By Dr. Mary Anne Franks
Legislative & Tech Policy Director, Cyber Civil Rights Initiative
Professor of Law, University of Miami School of Law
Follow Mary Anne Franks on Twitter: www.twitter.com/ma_franks