Texas Revenge Porn Laws Loses Battle With First Amendment

from the do-it-right-or-you-might-as-well-not-do-it-at-all dept

Texas attorney Mark Bennett -- instrumental in getting an unconstitutional "peeping tom" law tossed in 2014 -- has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It's not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It's that there's plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.

Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court's finding the law was First Amendment-compliant.

As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.

In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.

As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas' law cannot hold up to this level of scrutiny. From the decision [PDF]:

In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.

The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court's help and, further than that, courts need a jury's help to determine whether or not disputed content is actually obscene.

Then it points out the obvious flaw in this argument -- one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

Having dispensed with the state's attempts to salvage a redundant law, the court gives it this send off -- a light kick to ass of legislators and the state's legal counsel: DO BETTER.

At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.

Once again, it's not that revenge porn should be ignored. It's that it's almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors' desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 20 Apr 2018 @ 7:02am

    copyright strategy

    I'm waiting for "revenge porn" laws to start taking the copyright route by re-assigning copyright of the picture/video to the [presumably] female subject. That way there is no 1st amendment defense if the person does not hold the copyright (though unsure how 'fair use' might apply).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Apr 2018 @ 8:22am

      Re: copyright strategy

      That will screw over photographers in a major way. Say a model goes for a nude photo shoot. Why would the photographer ever do it if they then release all rights to those photos and their work? the contracts involved would be a nightmare for their business.

      Better to just use existing criminal laws. Lots of revenge porn sites and distributors continue to break laws already on the books (extortion, stalking, hacking). Use those instead.

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 20 Apr 2018 @ 8:53am

        Re: Re: copyright strategy

        Currently as the laws are setup, he could build a site that is 100% legal and still does revenge porn. In addition, the person who took the pic could still post the pic to other sites after takedowns and lawsuits.

        Giving a judge the ability to assign copyright only as a result of a lawsuit could be reasonable here.

        reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 20 Apr 2018 @ 9:50am

      Re: copyright strategy

      Some of the early revenge porn victims tried copyright claims to get things taken down, they had mixed results.

      reply to this | link to this | view in chronology ]

    • identicon
      cpt kangarooski, 20 Apr 2018 @ 10:31am

      Re: copyright strategy

      Well that’s fraught with problems.

      If the states do it, it Is impossible under 17 USC 201(e).

      If it gets over that hurdle, then it’s eminent domain in which the property is conveyed to a third party, so if states are doing this, it’s illegal under various states’ anti-Kelo laws. And if it is okay, then the state government has to pay fair market value to the prior rightsholder — so it could be fairly profitable and encourage revenge porn. (Since there’s no infringement prior to the forced sale)

      Do we really want the government to literally be smut peddlers?

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 20 Apr 2018 @ 10:40am

        Re: Re: copyright strategy

        Fair Market value is really low if all uses of the image are criminal.

        I could see them getting away with $1 to use Eminent Domain.

        Your solution is more reasonable, this needs a national law, perhaps empowering small claims courts to cover situations where:
        - Hosts demand payment for image removal
        - Image owners intend to cause damage to the reputation of the person in the image (Or cause real damage)
        - The image is of a private nature, taken in a private place

        Of course a reasonable test is not something I would expect from law makers.

        reply to this | link to this | view in chronology ]

        • identicon
          cpt kangarooski, 20 Apr 2018 @ 11:08am

          Re: Re: Re: copyright strategy

          What solution? I didn’t propose anything.

          Also I generally dislike small claims courts — I don’t think they usually do a good job — so I would probably never suggest sending any class of cases, particularly ones that strongly implicate the first amendment, copyright, and defamation, to them.

          Frankly this whole thing smacks of truthful defamation from way back — where the law protected undeserved reputations — and I am not convinced the victims of revenge porn merit special protection beyond usual defamation or invasion of privacy claims. If you’re aware that someone is taking salacious photos of you and you are okay with it because you’re in a romantic relationship, more fool you, I think.

          reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 20 Apr 2018 @ 8:18am

    Again, where do current laws fail to address the revenge porn issue? Identify the culprit for leaking private stuff, punish him/her accordingly and move on. The problem is, once on the internet you can't really know if you are downloading something that is a result of some crime (put aside child porn for instance) so just live with it. Get the leaker, punish and move on, eventually it'll be just one more homemade porn in a vast ocean of others.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Apr 2018 @ 10:10am

      Re:

      Again, where do current laws fail to address the revenge porn issue? Identify the culprit for leaking private stuff, punish him/her accordingly and move on.

      Punish for what? Under what law?

      reply to this | link to this | view in chronology ]

      • identicon
        Paul Brinker, 20 Apr 2018 @ 10:45am

        Re: Re:

        Site owners can be easily hit for extortion, this has been the most common solution when pay for removal is setup on the site. For more fun site owners own several sites, so removal from one is not removal from others.

        Of course they can choose a no removal policy to get around this, but that cuts off funding for the sites. That's been the problem, right now there is no reasonable law when someone wants to ruin someones life and has no profit motive.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Apr 2018 @ 10:58am

          Re: Re: Re:

          Ninja was suggesting to go after "the leaker", not the site. You're right that it's an easy extortion case for many of those.

          reply to this | link to this | view in chronology ]

        • identicon
          JEDIDIAH, 20 Apr 2018 @ 11:52am

          Again, certain stuff is blatantly illegal.

          Someone tried to revenge porn a Texas lawyer. The good old boy in question got midieval with the perpetrator.

          Tzar Peter and General Sherman would have both been jealous.

          reply to this | link to this | view in chronology ]

    • identicon
      Thad, 20 Apr 2018 @ 11:03am

      Re:

      Often there are cases where the leaker shouldn't be the only liable party, the site providing the leaked photos should be too. While you're right and some sites may have user-uploaded photos that they have no way of knowing are revenge porn, some sites market themselves as revenge porn sites, explicitly solicit user submissions of revenge porn, and some have even been run as protection rackets where they offer victims of revenge porn a chance to remove the photos for a fee. Remember Craig Brittain?

      I think it's perfectly reasonable to go after sites of that type and their owners, and can be done in a way that's consistent with the First Amendment -- but this requires laws that are narrowly and specifically tailored. Unfortunately, a number of the "revenge porn" laws passed so far have been like this one: overbroad to the point of infringing on protected speech.

      reply to this | link to this | view in chronology ]

      • icon
        Ninja (profile), 20 Apr 2018 @ 12:31pm

        Re: Re:

        That's called extortion and has laws to address it?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Apr 2018 @ 1:11pm

          Re: Re: Re:

          If they're offering removal for a fee. If not?

          reply to this | link to this | view in chronology ]

        • identicon
          Thad, 20 Apr 2018 @ 2:11pm

          Re: Re: Re:

          Sure, and Brittain and some other proprietors have gotten busted for extortion schemes.

          But, if they hadn't put up those "give us money to take the photos down" mechanisms, their revenge porn sites would likely have been legal.

          I don't think that a narrowly-tailored law saying you can't post pornographic photos of a person without their consent (and for the explicitly stated purpose of revenge) would run afoul of the First Amendment. There are states that have passed revenge porn laws that haven't been challenged on free speech grounds.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Apr 2018 @ 6:53pm

            Re: Re: Re: Re:

            a narrowly-tailored law saying you can't post pornographic photos of a person without their consent

            Many of the photos people complain are just nude photos but not pornographic.

            and for the explicitly stated purpose of revenge

            How often do people explicitly state they're doing it for revenge?

            reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 20 Apr 2018 @ 9:53am

    The big issue is the demand to fix it now now now now now.
    There is no time to carefully craft a law, we have to throw something together to get the coverage for the 5 o'clock news.

    Its not helped by people who will claim Mark Bennett supports & loves revenge porn because he cares about the 1st Amendment. We are back at the zero sum game of you are with us or against us & who cares if there aren't enough life boats on the ship, we need to support the idea its unsinkable.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 20 Apr 2018 @ 11:39am

    I LIKE REVENGE PORN..

    It will TEACH people to QUIT taking pic's and Video while HAVING SEX,...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Apr 2018 @ 7:24am

    Why is a new law needed here, is extortion no longer good enough for these types of transgressions?

    reply to this | link to this | view in chronology ]

    • identicon
      DXC, 22 Apr 2018 @ 8:40pm

      Re:

      Doesn't extortion require that someone be trying to charge money for removal? It seems to me that there's a gaping hole in the

      I'm not saying that the 1st amendment claims raised by Bennett are not important. I agree with his approach and respect what he's doing. But I think it's misleading to say that the revenge porn problem has been solved by extortion laws because AFAIK that only covers a certain subset of revenge porn cases -- where someone charges money for removal. It doesn't cover any other scenario where someone posts sexually explicit images of someone on the Internet to humiliate them or harass them, and as far as I can tell there's no way to force someone to take down those types of images as long as they don't commit extortion.

      Maybe that's just something that we have to accept as a society, but I think that it's sort of unreasonable to just pretend like the problem has already been solved.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.