Vermont's Revenge Porn Law Ruled Constitutional… With An Incredibly Confused Ruling

from the not-how-it-works dept

Revenge porn — or, more accurately, “non-consensual pornography” — is unquestionably bad. We’ve spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.

However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we’ve repeatedly documented, these revenge porn sites don’t seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.

In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I’ve often pointed to lawyer Mark Bennett’s 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it’s not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn’t be subject to the First Amendment.

Some people insist that revenge porn would clearly be exempt from the First Amendment because it’s so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it’s very short and narrow list of exceptions, and hasn’t shown any indication that it’s ready to expand that list.

Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.

But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state’s revenge porn law is constitutional. And part of the reason he’s so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment… but (surprisingly) that it still can withstand strict scrutiny:

For the reasons set forth below, we conclude that ?revenge porn? does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

That’s… very strange. Usually, once a court recognizes that something is not in an exempted bucket, it finds the law to be unconstitutional. Here, Vermont is carving new territory. Thankfully, as part of saying that revenge porn is not in an already exempted bucket is a good thing, as it wipes out the incorrect claim by some law professors that you could just say that revenge porn is obscene (which would be very problematic). The court correctly highlights how there are massive differences between what is obscene and what is revenge porn, and notes (correctly again) that the Supreme Court is loathe to expand the definition of obscene:

We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court?s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis.

Next, the court (correctly!) says it’s in no position to create a new category of exempted speech:

Although many of the State?s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

Indeed, the Vermont Supreme Court highlights how frequently the US Supreme Court has been tossing out laws that try to create new categories of unprotected speech:

[W]e decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court?s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add ?depictions of animal cruelty? to the list, rejecting the notion that the court has ?freewheeling authority to declare new categories of speech outside the scope of the First Amendment.? 559 U.S. at 472. The Court explained, ?Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ?depictions of animal cruelty? is among them.? Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (?[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.?). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).

More significantly, as set forth more extensively above… in case after case involving a potential clash between the government?s interest in protecting individual privacy and the First Amendment?s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court?s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis…. But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment?s full protections.

So then why doesn’t the court declare this law unconstitutional? Well, that has lawyers like Mark Bennett and Eric Goldman perplexed. To pass “strict scrutiny,” the court has to find that the law was passed to further a “compelling government interest” and that the legislation must be “narrowly tailored” to address just the issue for which the government has such a compelling reason.

Here, the court finds that there is a compelling government interest, saying that revenge porn images are not a matter of public concern, and serious harms created by revenge porn make it so that the government has a compelling interest in outlawing such content. Fair enough. But what about the “narrowly tailored” part. That seems like where such a law should fall down, but nope:

Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State?s compelling interest because their disclosure would violate a reasonable expectation of privacy. Our conclusion on this point is bolstered by a narrowing interpretation of one provision that we offer to ensure that the statute is duly narrowly tailored. The fact that the statute provides for criminal as well as civil liability does not render it inadequately tailored.

But, of course, the real problem is that all of these laws criminalize tons of content that should otherwise be protected. And here, the court more or less ignores that, by saying that the potentially overbroad nature of the law wasn’t raised by the defendant:

The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if ?a substantial number of its applications are unconstitutional, judged in relation to the statute?s plainly legitimate sweep.? Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

But, as Mark Bennett highlights, this is the court completely missing that “overbreadth” is the thing you check to see if a statute is “narrowly tailored.” But that’s not what happened. Here, the court said no one raised the “overbreadth” issue, and thus it doesn’t need to bother. So, instead, it says that the law is narrowly tailored based on how the law is written with a “rigorous intent element.” But, that’s not how the test works. As Bennett explains:

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad?if it restricts a real and substantial amount of constitutionally protected speech?it is ipso facto not narrowly tailored, and it fails strict scrutiny.

This is a confused mess of a ruling. As Eric Goldman notes, it’s possible this could be appealed to the US Supreme Court, though it’s unlikely that such a petition would be granted. It does seem likely that eventually this issue would need to be looked over by the Supreme Court to clarify the confusion. But, in the meantime, the law in Vermont stands.

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Comments on “Vermont's Revenge Porn Law Ruled Constitutional… With An Incredibly Confused Ruling”

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33 Comments
Pop Ulist says:

[very short list of speech not protected by the First Amendment]

No, NOW, according to Masnick, includes anything a corporation hosting "platforms" doesn’t like. That’s de facto, and the deflection that is not gov’t but "private" censorship makes zero difference in practice. By that standard, Nazi Germany is stellar, because they contracted out the concentration camps to "private" corporations. — THAT IS NOT RHETORIC: it’s EXACTLY what the "US gov’t" did in Afghanistan and Iraq.

On this topic he’s just simply wrong. First, any reasonable definition of "free speech" cannot include intent to harm someone else. 2nd, there IS another person’s rights / privacy being actually violated. It’s NOT a simple matter of "speech". Civilization did without this — or at least it was only used for literally blackmail — up until just recently. If outlaw it entirely, we’ll get along without loss.

Having looked at it from FIRST principles, I DON’T CARE about the block quotes. If we started from where lawyers want, we in America would still be as the serfs of UK, groveling before "the idiot spawn of incestuous German robber-barons" as Jeremy Hardy put it.

Lawyers and masnicks intentionally make everything too complex: that’s how they exercise power. Economics, for instance, is just opinions on who should live in undeserved luxury, and who should labor until drop dead. Masnick is a royalist overall, and I’m a Populist.

John Smith says:

An interesting test for Mr. Bennett’s defense of free speech would be if someone wrote certain things about him, all verifiable from his own words and those of his friends.

Funny how the same half-dozen names (usually EFF) always turn up in articles like this. It’s not lke there’s a large consensus, just a small number of attorneys who seem to care about this a great deal more than others.

Funny how “revenge libel” like those “don’t date him” sites practiced was not included even though I should have been. Men are acceptable targets under Secvtion 230, butfor women we need to carve out an exception.

James Burkhardt (profile) says:

Re: Re:

>Funny how "revenge libel" like those "don’t date him" sites practiced was not included even though I should have been. Men are acceptable targets under Section 230, but for women we need to carve out an exception.

Well, no, we don’t. That is Techdirt’s position. Moreover, heresy sites like those "don’t date him" would be just as legal if applied to women. Namely the site is not responsible, but the poster would be liable if actual libel were stated. "Revenge porn" is inherently different, and just as problematic if done to men. There just appears to not be the same market, or perhaps men take identifying nudes less often because of varying partner dynamics, not providing enough supply.

>An interesting test for Mr. Bennett’s defense of free speech would be if someone wrote certain things about him, all verifiable from his own words and those of his friends.

Well, its unclear what kind of things, but I assume you are trying to suggest he would be goaded into some sort of gotcha where he would abandon all principle if verifiable statements of fact were made about him and claim it is libel? I guess we will have to find out. Its not the most likely case. It would be more likely for him to get tripped up by opinions dressed up as facts, i would think, or as a public figure who is hit with false facts without the malice standard being met. But I don’t know the guy.

>Funny how the same half-dozen names (usually EFF) always turn up in articles like this. It’s not like there’s a large consensus, just a small number of attorneys who seem to care about this a great deal more than others.

I don’t know what to make of this statement. The first half talks about a consensus but doesn’t clarify what on, and then transitions into suggesting the aren’t many people who care about these issues, but not many people caring =/= no consensus among them. So I am unsure if I should address the fact that certain lawyers and organizations keep popping up, or that there is not a consensus about….something (Free Speech as a whole, maybe?)

Dan (profile) says:

Re: Re:

Funny how the same half-dozen names (usually EFF) always turn up in articles like this. It’s not lke there’s a large consensus, just a small number of attorneys who seem to care about this a great deal more than others.

It’s sadly true, most people don’t care about principle, only about the outcome. Though it’s worth pointing out the Bennett isn’t with EFF. Bennett was also busting his ass on the 3D-printed-guns case. Agree with him or not, free speech is important to him.

Christenson says:

A way of looking at revenge porn

The problem with making speech illegal isn’t that the speech is bad…it’s that it can be hard to tell the difference between the bad speech (revenge porn) and the reporting on and denouncing of the same.

Then there’s a tricky little consent problem:
This year, my partner takes an “intimate picture”, and I give permission for it to be posted. It shows up on internet porn forums.
Next year, I break up with my partner.
The year after, that picture becomes revenge porn…
And in the fourth year we find it in a news story about revenge porn! (or maybe the court filings)

And throughout this story, the picture itself has not changed by one pixel, only its context.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: A way of looking at revenge porn

It is relevant because of how any individual might interpret a particular situation. Is it revenge, or as Christenson points out something that wasn’t revenge originally, but left around too long and might be interpreted differently? The point of the Justice quote is that it is about interpretation. Some might say porn, some might say sexy, some might say yawn.

Same thing with whether something is revenge or not revenge. Same thing with other forms of speech, with the exceptions noted in the article.

Anonymous Coward says:

Re: Re: Re:2 A way of looking at revenge porn

Some might say porn, some might say sexy, some might say yawn.

My point was that the law does not draw this distinction. If the person pictured is nude, and there’s no consent, it’s illegal. "Clothed pornography" might leave room for interpretation.

It is relevant because of how any individual might interpret a particular situation. Is it revenge

That doesn’t matter either. The law does not require it to be revenge; it just has to be unauthorized (not an easy thing to work out after the fact, of course).

Ehud Gavron (profile) says:

Defining porn? Screw that. Define "Revenge".

Revenge implies motive and intent. Consent is now being tested in courts all around so “nonconsensual” isn’t so cut and dry.

Rape is nonconsensual.
Sexual relations with a subordinate who feels powerless to say no is nonconsensual.
Sexual relations with a subordinate who is flattered by the attention of such a powerful figure… sure it’s wrong, but is it nonconsensual?

Pictures of any of the above could be “art”, and could be “porn” and could be just plain “ew we didn’t want to see that.”

If someone later publicly provides them, do we need MOTIVE or INTENT or CONSENT or is this just yet another law anyone who takes selfies at private moments just violated?

Truly Vermont, you’ve outdone yourself. The ruling is twisted and sick.

Ehud

Anonymous Coward says:

Re: Defining porn? Screw that. Define "Revenge".

The law does not discuss "revenge" or "porn". That’s common but inaccurate shorthand. It hinges on consent, which will be difficult to prove one way or the other.

Sexual relations with a subordinate who feels powerless to say no is nonconsensual.

That’s not generally true. Intent and knowledge are important here. If someone is "subordinate" to me, and for some reason unbeknownst to me feels powerless (maybe they’re blackmailed by someone else), it’s not illegal on my part to treat "yes" as "yes". I can’t read people’s feelings.

Anonymous Coward says:

Re: Re: Re: Defining porn? Screw that. Define "Revenge".

Certainly when their job depends upon consenting to performing sexual favors, it is illegal

I’m sure it’s illegal. It’s not so clear it would meet the legal standard of rape, if the employee’s an adult (i.e., above the age of majority which is normally higher than the age of consent).

Wendy Cockcroft (user link) says:

Re: Re: Re:3 Re:

Agreed. There’s also the matter of a) people* wanting to film their sexual interactions at some point but not make them publicly available**, and b) people being clandestinely filmed engaging in sexual interaction which later gets put online by some creep.

If you’re being forced into it, that is indeed rape. In the other two cases, that’s creepy as hell and downright wrong, but not rape.


*Remember Hulk Hogan v Gawker?
**Why? ALWAYS assume that if it’s recorded it will end up on the internet sooner or later

Agammamon says:

"non-consensual pornography

Noooooo. The pornography was made consensually – its the distribution that is non-consenual in revenge porn. You take a dick-pick, you’ve consensually made pornography even if no one else ever sees it.

There are already laws making the first part illegal, but nothing covering the second, hence the rush to make crappy laws about it in order to get soundbites for a re-election campaign.

stine (profile) says:

Re: Agammamom

“Revenge porn — or, more accurately, “non-consensual pornography” — is unquestionably bad.”

I agree. The first sentence of this piece is wrong, The pornography isn’t usually the non-consentual part (if it was, the charge would be rape), only the recording and distribution without 2257 documentation, which would mean that no other laws need be applied.

Anonymous Coward says:

Re: Re: Agammamom

Which is why its better to not create the image in the first place. You can’t take something back once it is on the web. I won’t stop someone from taking the pictures or video but in this age of the web people have to know the images are not ever fully going away, so why take the risk.

BTW I liked the original title more, mad the law sound even more evil.

Anonymous Coward says:

I thought the typical revenge porn post demanded payment in order to have the post removed. Isn’t this extortion, which is illegal? Why not go after them with existing laws as there are plenty to chose from, or maybe that is too difficult and they want a new law to abuse anyways.

Do District Attorneys prefer new fangled laws over the old and tired stuff of the past?

Anonymous Coward says:

Re: Re:

Slavery still is legal.

>Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The fact that the slave labor is being performed by prisoners does not make it anything other than slavery.

Ehud Gavron (profile) says:

Re: Re: Facts

“The fact that the slave labor… is being performed by prisoners… does not make it other than slavery.”

But it’s not against the law if it’s done by convicts.

/disgusting

The law needs to be changed, but those ****y grabbing ****y politicians have no ****s to do anything other than cower and hope for re-election.

Our “democracy” (republic) has turned to ***t.

E

Michael Chermside (profile) says:

Not much of a precedent...

If the court’s reasoning in this case was clearly explained to be based on “here, the court said no one raised the “overbreadth” issue [so they didn’t have to consider it]”, then doesn’t that mean that the very next case where someone DOES raise that issue requires re-consideration (by the lower court, and potentially appealable to the Vermont Supreme Court) because the precedent doesn’t apply?

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