Introduction
While dating her boyfriend, Akhil Patel, of seven years, Nadia Hussain did what so many people of her generation have done:1 she sent him emails with nude photos of herself and engaged in video sex via Skype.2 Although she told him to delete the photos, he never did.3 He betrayed her trust even further by secretly recording their video sessions.4 After Nadia broke up with Patel, he started to lash out at her via text message, threatening to send the photos and videos to her parents, grandparents, friends, and coworkers if she did not comply with his demands to respond to him.5 Patel harassed her like this for years, and when she refused to give in, he finally made good on his promise by posting the photos and videos to porn websites where they were viewed by, at minimum, several thousand people.6
This story is a variation on what has become an all-too-familiar theme in the age of social media and ubiquitous phone cameras. Many instances of so-called “revenge porn”7 involve relationships that turn sour, leading an individual to disseminate an intimate image captured during the course of the relationship in retaliation for some perceived wrong.8 However, the circumstances leading one to commit an act of nonconsensual pornography can vary widely.9
When victims of revenge porn first started to come forward in the early aughts there was little law enforcement could do to help, owing both to the dearth of applicable laws and law enforcement’s lack of understanding about how the internet and social media worked.10 In the absence of any criminal law on point, victims were left with two main civil remedies: they could either sue perpetrators under privacy tort (if their state recognized such action), or they could try to copyright the image in question and sue for infringement to have it removed.11 Recognizing the inadequacy of these alternatives in redressing the real and lasting harm to victims,12 scholars Danielle Keats Citron and Mary Anne Franks, together with activist Holly Jacobs, have been at the forefront of publicizing this issue and laying the legal and theoretical framework for the criminalization of nonconsensual pornography.13
Through their important work and a paradigm shift that has begun to recognize pervasive sexual harassment and assault,14 revenge porn is finally being acknowledged as an extreme invasion of privacy worthy of criminal condemnation.15 While the passage of statutes criminalizing revenge porn in almost every state is a big step in the right direction, the battle is far from won.16 Free speech advocates remain skeptical of any law they perceive as restricting individuals’ free expression online.17 Knowing this, drafters of nonconsensual pornography statutes include language intended to mitigate any First Amendment concerns by writing such laws narrowly.18 State legislators have taken several approaches to ensure their revenge porn statutes will withstand constitutional scrutiny. For example, different legislatures include provisions that either require: a specific intent to harm,19 proof of actual harm to the victim,20 proof the individual depicted had a reasonable expectation of privacy in the image,21 a narrow definition of who counts as a “covered recipient” of such an image,22 or some combination of such provisions.23
Nonetheless, recent cases brought under the new nonconsensual pornography laws reveal another possible hurdle to victims seeking redress: the courts themselves.24 When faced with First Amendment challenges to nonconsensual pornography statutes, most courts apply strict scrutiny to determine whether such laws may be upheld.25 However, strict scrutiny is not an appropriate standard to measure the constitutionality of revenge porn laws, which do not implicate the kind of public speech the First Amendment traditionally protects. Strict scrutiny is also inappropriate here because revenge porn laws are necessary to protect private expression, and thus should be treated differently under the First Amendment than regulations aimed at protecting other interests.
This Note argues that courts confronted with constitutional challenges to nonconsensual pornography laws should employ intermediate scrutiny, adopting an approach similar to that proposed by Justice Breyer, which “asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.”26 This method provides for careful consideration of the complex issues implicated when free speech and privacy intersect. In other words, Justice Breyer’s approach would allow courts to weigh the effects of enforcing such laws against the consequences of not doing so. While First Amendment proponents focus on the chilling effects nonconsensual pornography laws may have on the people who disseminate the images, Justice Breyer’s balancing approach would allow room to consider the chilling effects on victims’ free expression if their intimate photos may be shared without consent or consequence.
Part I of this Note begins by looking at the history of revenge porn, the initial legal response, and the movement to establish criminal laws to prohibit such conduct. Part I then underscores the theoretical basis for such criminal laws as integral to protecting the right to sexual privacy. Part I also outlines the First Amendment challenges facing nonconsensual pornography laws, and the three predominant analytical approaches courts may take when grappling with such challenges. Part II addresses the elements of Franks’s model nonconsensual pornography statute and analyzes the nonconsensual pornography statutes in three states by comparing them to Franks’s model statute. With this framework, Part II then examines the different approaches taken by courts in each state in recent cases confronting constitutional challenges to these new laws. Part III proposes that courts confronting First Amendment challenges to nonconsensual pornography statutes should decline to employ strict scrutiny analysis, with its strong presumption against constitutionality, to these laws. Rather, courts should look to Justice Breyer’s balancing approach, as well as the Illinois Supreme Court’s opinion in People v. Austin,27 as models for how to analyze such statutes in light of the competing interests at stake.
Given the proliferation of nonconsensual pornography statutes in almost every state, more constitutional challenges are sure to follow. This Note is an effort to provide a guide to state courts that will inevitably wrestle with the decision of whether such laws can withstand constitutional scrutiny.
I. Background
A. The Rise of Revenge Porn and the Legal Response
The act of sharing an intimate photo or video without the consent of the depicted individual is not novel,28 and the underlying misogyny motivating much of it is a tale as old as time.29 But the rise of the internet coupled with the prevalence of smartphones have proliferated the practice, which according to a study from 2016 has affected nearly four percent of internet users, or roughly ten million people.30 Indeed, even though most states now have statutes prohibiting nonconsensual pornography,31 the practice continues.32
But when the first wave of (what may now in most states be termed) crimes involving the dissemination of nonconsensual pornography washed over the United States, victims found themselves at a loss for how to respond.33 Simply posting an image to some online platform did not rise to the level of harassment required under most state laws, even when it was a recognizable image accompanied by the name and contact information of the person depicted.34
Harassment generally requires a continuing “course of conduct,”35 which does not encompass a single online post—even if it induces those who view it to contact the individual depicted in droves, looking for sex.36 Harassment also typically describes speech or conduct directed to a particular person, whereas most instances in which an actor disseminates nonconsensual pornography consist of “one-to-many” speech that is typically within the protection of the First Amendment.37 Although victims experience harassment when contacted and physically confronted by strangers responding to (what was understood to be) an invitation for sex, existing harassment laws offered them neither redress from such abuse nor recourse against the perpetrator who posted the initial image.38 Anti-stalking laws are inadequate for similar reasons, and anti-voyeur statutes do not sufficiently cover the full scope of nonconsensual pornography scenarios because in many cases the images are created and initially shared by the victim him or herself.39
And while some states, like Texas, recognize certain privacy torts that allow victims like Nadia Hussain to pursue civil remedies against their abusers,40 other states like New York do not.41 The two privacy torts most relevant in the nonconsensual pornography context are intrusion upon seclusion and public disclosure of a private fact.42 The former proscribes intrusion upon the (1) solitude or seclusion of another, if (2) such intrusion would be highly offensive to a reasonable person.43 Liability for the disclosure of a private fact attaches where one publicizes a private matter that (1) would be highly offensive to a reasonable person and (2) is not of legitimate concern to the public.44
Without the availability of the public disclosure of private fact tort, or any criminal statute specifically prohibiting the dissemination of nonconsensual pornography, the court in People v. Barber4542 Misc.3d 1225(A) (N.Y. Crim. Ct. 2014). dismissed all charges against Ian Barber, even though he posted nude photos of his girlfriend to his Twitter feed and also sent the images to her sister and employer without his girlfriend’s consent or knowledge.46 New York State charged him with several counts, the most relevant one being the dissemination of an unlawful surveillance image (essentially an anti-voyeur statute).47 To qualify under this statute, a defendant must have obtained the image or recording surreptitiously under circumstances where the victim had a reasonable expectation of privacy and did not consent to the recording.48 But because the State failed to sufficiently allege how Barber had obtained the images, this charge was dismissed along with the others.49 Even where similar voyeur charges would be sufficiently supported by the evidence filed in a criminal complaint, not all acts of nonconsensual pornography would be covered by such laws.50
Attempts to use copyright law to shield victims from the ravages of having their intimate photos posted online proved similarly fruitless.51 One can only assert copyright ownership over an image if they can prove they actually took the photo.52 Thus, any photo a voyeur takes surreptitiously or one’s partner takes with initial consent would not be protected.53 And even if the person depicted could prove they did take the photo, they would need to register it with the Copyright Office before demanding that it be removed from any offending website.54 This process can lead to a perverse game of whack-a-mole as the photos disappear and then reappear on different sites; even a successful petition to have Google remove the links to any such sites cannot ensure the photos are removed from the internet for good.55 Additionally, by filing the image with the government, the person depicted must reveal the image to more people in an effort to keep it private.56
Finally, Section 230 of the Communications Decency Act makes it all but impossible to hold third-party platforms—what the statute calls “interactive computer services”—liable for the dissemination of images containing nonconsensual pornography.57 Because Section 230 prevents interactive computer services from being “treated as the publisher or speaker” of the information users post to such sites, such platforms are afforded broad immunity.58 Advocates of Section 230 hail it as the guardian of free speech and innovation online.59 It is what has allowed sites like Facebook, Twitter, YouTube, Craigslist, Reddit, 4chan, etc., to proliferate; without Section 230, so the conventional wisdom goes, the internet as we know it would cease to exist.60
It is also the reason apps like Grindr have no reason to comply with requests to take down fake profiles purporting to belong to the target of a revenge porn scheme,61 and why the web-hosting company GoDaddy is immune from suit brought by plaintiffs whose nude images were posted to revenge porn sites it hosted.62 Given that removal of the images from the internet is the number one objective of revenge porn victims seeking redress,63 Section 230 has frustrated those seeking civil remedies.64
B. The Need for Criminal Statutes
Given the real and lasting harm to victims of nonconsensual pornography,65 and the inadequacy of existing tort or copyright law to provide redress,66 most states have now responded with some form of a criminal statute.67 Even if the civil remedies outlined above could effectively redress the harm caused by nonconsensual pornography, bringing a lawsuit is an expensive and time-consuming endeavor unavailable to most victims.68 And in any case, the specter of civil litigation is not so menacing that it will sufficiently deter perpetrators—especially those who are judgment-proof; only the threat of criminal sanction and possible jail time can achieve this.69
Take Holly Jacobs, the founder of the Cyber Civil Rights Initiative (CCRI). CCRI serves as a resource for matching victims with legal representation, conducts research, and partners with legislatures across the country in an effort to pass legislation criminalizing the dissemination of revenge porn.70 Jacobs was herself a victim of revenge porn after photos she had shared with her long-distance boyfriend in confidence surfaced on hundreds of websites, along with her name and contact information.71 She struggled to have the images removed and had to explain to her friends and employer what was happening.72 Once she thought she had succeeded at removing the images from the web, they quickly resurfaced; she ultimately had to change her name to distance herself from the search results.73 When she realized there was nothing law enforcement could do to help her, she made it her mission to fight back and make sure others would not have to follow in her footsteps by changing the law.74 Carrie Goldberg, a lawyer who became the victim of revenge porn in 2013 when a “psycho” ex posted her photos online and tried to ruin her career, similarly decided to make it her mission to “become the lawyer [she] needed” for others.75 Goldberg works with the CCRI, and has made a career of representing survivors—mostly women—of cyber-harassment crimes.76
While the CCRI also works with tech companies to advocate for the use of technology-based solutions like hashing,77 this does nothing to address the initial conduct. Removing the images from the internet is an urgent goal of individuals who have had their photos disseminated. But what these people want more than anything is for the images to have never been exposed in the first place.78
Laws that criminalize the nonconsensual sharing of intimate images serve as a deterrent, sending a clear message that such conduct is a gross invasion of privacy and will not be tolerated.79 Reddit’s response to the possibility it had inadvertently distributed child pornography as a result of the 2014 celebrity hack that fueled r/TheFappening is a clear illustration of the power of criminal sanctions: while the site was the hub for unabashedly sharing leaked nude photos of celebrities, it swiftly and urgently removed images depicting one celebrity when she was underage.80 The CCRI receives on average one hundred requests for help from new victims each month.81 Revenge porn is a complicated problem requiring a multi-pronged approach, and criminal laws are an integral piece of the puzzle.82
C. Nonconsensual Pornography Statutes as First and Foremost Privacy Laws
Citron and Franks frame nonconsensual pornography statutes as first and foremost aimed at protecting individual privacy.83 Privacy laws may be viewed from two predominant angles: one that encompasses the (negative) right to be left alone,84 and the other engendering a (positive) right to exert autonomy over one’s personal information.85 Laws aimed at preventing the nonconsensual disclosure of intimate images involve both types of privacy rights; the initial disclosure may be viewed as a breach of the right to have autonomy over one’s private personal information, and the ensuing fallout from having one’s intimate images disseminated can lead to the type of harm harassment and stalking laws are meant to prevent.
Given the existence of many other regulations meant to safeguard private personal information,86 revenge porn statutes should not be controversial. Lawmakers, courts, and the public at large can clearly grasp the idea that consent to share certain types of personal information is contextual and sharing in one context with a limited audience does not translate to sharing with the entire world.87 This theory of contextual consent is the same principle Citron and Franks apply to the phenomenon of revenge porn.88
Citron has further elaborated on what she deems “sexual privacy” as a fundamental privacy right.89 Both a descriptive and normative term, she defines sexual privacy as the ability to assert autonomy over our physical and emotional boundaries.90 According to Citron, sexual privacy is necessary to give people the space for identity-formation, which can be achieved only when they have autonomy to decide what private personal information they will share with others in forming intimate relationships.91 When an act of nonconsensual pornography undermines this autonomy, the effects of such a breach can be world-shattering for the victim, making it difficult or impossible to achieve the kind of trust required to engage in future intimate relationships.92
Relatedly, Franks argues freedom of speech and privacy are not at odds with each other, and that we need to protect privacy to safeguard free speech.93 Proponents of the First Amendment are worried about the free expression of individuals who may be prosecuted for violating nonconsensual pornography laws.94 However, they fail to acknowledge the free speech rights of the victims of nonconsensual pornography, and the chilling effects on their free expression if the nonconsensual sharing of intimate images is allowed to proliferate.95
A familiar, knee-jerk response to stories of people affected by nonconsensual pornography is that the victim should simply refrain from sharing such images if they did not want them widely disseminated.96 Aside from the fact that not all instances of revenge porn involve images originally shared by the person depicted, this is the same kind of blame-the-victim rhetoric used to protect perpetrators of sexual assault.97 If Citron is right about the self-actualization power of private sexual expression, to allow the nonconsensual dissemination of intimate images to go unanswered is to deny those victims access to the self-expression necessary to their identity-formation.98
D. First Amendment Concerns
The biggest hurdle facing nonconsensual pornography laws are constitutional challenges rooted in the First Amendment. The First Amendment prohibits the government from “abridging the freedom of speech.”99 The Supreme Court construes First Amendment protections broadly, and is particularly concerned with ensuring the free flow of ideas involving matters of public concern.100 Over time, the Court’s First Amendment jurisprudence has calcified into three main categories of analysis, each burdened with a different level of scrutiny.101 While these categories are helpful in providing a framework to courts confronted with First Amendment challenges to statutes or other state action, Justice Breyer has voiced concern that such a rigid approach runs the risk of oversimplifying matters and imposing “judicial management [on] ordinary government regulatory activity.”102
1. Content-Based Restrictions Triggering Strict Scrutiny
Content-based restrictions are “those that target speech based on its communicative content”—in other words, laws that “appl[y] to particular speech because of the topic discussed or the idea or message expressed.”103 Content-based restrictions typically trigger strict scrutiny, meaning they are presumptively unconstitutional and the party seeking to uphold the law has the burden of showing the law is narrowly tailored to serve a compelling state interest.104 Strict scrutiny is a high bar, and although it is presumably possible for the government to meet this burden,105 once a statute triggers strict scrutiny the government rarely prevails.106
Proponents of the First Amendment assume that because nonconsensual pornography statutes prohibit the dissemination of images or videos depicting specified content, they are content-based restrictions on speech that must trigger strict scrutiny.107 However, while there appears to be agreement among this cohort regarding the characterization of such statutes as content-based,108 they differ in their approach to crafting a revenge porn law capable of surviving a constitutional challenge.109
The ACLU insists nonconsensual pornography statutes require an intent-to-harass provision to pass constitutional muster,110 and this argument has been successful in a number of states.111 Conversely, First Amendment scholars like Eugene Volokh and John Humbach argue the inclusion of such a motive provision actually makes these laws more vulnerable to attack on free speech grounds.112 And, where Volokh holds the door open for the possibility that a narrowly tailored law aimed at prohibiting the distribution of nude images without the subject’s consent could withstand First Amendment scrutiny,113 Humbach does not appear to agree there is any room for such a content-based prohibition.114
2. Content-Neutral Time, Place, and Manner Restrictions & Intermediate Scrutiny
In contrast, restrictions that are actually “‘content-neutral’ time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.”115 Unlike strict scrutiny, intermediate scrutiny only requires the government to prove the regulation is necessary to serve a substantial state interest that is not motivated by a desire to restrict free speech, and that it is sufficiently narrowly tailored to serve that interest without unduly infringing on First Amendment freedoms.116 To qualify for intermediate scrutiny, the law must have only “incidental” effects on free expression, and the justification for such law must be based on something other than content-moderation.117
In City of Renton v. Playtime Theatres, the Court found that because the ordinance at issue did not impose a complete ban on adult movie theaters, but merely restricted where such theaters may be located, it was properly analyzed under the less exacting standard of intermediate scrutiny, and upheld the law.118 Though the Court acknowledged that the ordinance treats theaters showing a particular kind of content differently from others, it justified the application of intermediate scrutiny on the theory that the ordinance was not aimed at suppressing certain disfavored speech, but rather was an effort to quell the unwanted “secondary effects” of placing such theaters in certain neighborhoods.119 Because the effects on speech were therefore “incidental,”120 the Court was comfortable affording the town a more generous measure of deference than would have been available under a strict scrutiny analysis.
Franks argues nonconsensual pornography statutes may be analyzed as content-neutral time, place, and manner restrictions because they do not prevent an actor from sharing an image or video depicting the content described, as long as they have consent to do so.121 Because the government does not need to show the law is the least restrictive means of serving the state interest in safeguarding individuals’ sexual privacy, the “narrowly-tailored” burden is lower and it is more likely the state would be able meet it.122
3. Categories of Unprotected Speech & Rational Basis
Finally, it is possible, if unlikely, that courts may characterize nonconsensual pornography as falling outside First Amendment protections altogether.123 Under this route, the presumption lies in favor of upholding the statute, and the government need only show a rational basis between the reason for the law and its intended effect.124 To prevail under this theory, the government would either need to show how revenge porn belongs to an existing category of unprotected speech, such as obscenity or fighting words,125 or make the argument that the court should create a new category of speech falling outside First Amendment protections.126 However, the former route is unlikely,127 and lower courts are not apt to create an entirely new category of unprotected speech without a clear ruling from the Supreme Court.128
II. Analysis
A. Franks’s Model Statute
According to Franks, the ideal nonconsensual pornography statute would always proscribe the following elements: “(1) the disclosure of private, sexually explicit photos or videos of an identifiable person, (2) without the consent of the person depicted.”129 Under Franks’s model, the disclosure element should require a purposeful or knowing mens rea,130 and the consent provision should require no more than a recklessness mens rea.131
Notably, Franks does not require the inclusion of a reasonable expectation of privacy provision in her model statute.132 However, she does offer such a provision as an option in an apparent effort to allay concerns the statute would be vulnerable to attack on overbreadth grounds without it.133 The statute should include exceptions for images captured as a result of the depicted person’s voluntary exposure in a public or commercial setting, as well as for disclosures made in the public interest—e.g., for law enforcement or medical purposes.134 Franks is adamant that these laws should not include a separate motive provision requiring an intent to harm, as free speech advocates like the ACLU would like to see incorporated.135
B. Constitutional Challenges to Nonconsensual Pornography Laws
Using Franks’s model statute as a guide, the following Sections analyze the nonconsensual pornography statutes of Vermont, Illinois, and Minnesota. Then, these Sections evaluate how the courts in each state have approached First Amendment challenges to these statutes. This analysis reveals how the biggest threat facing revenge porn laws is constitutional challenges based in First Amendment concerns.
1. Vermont & State v. VanBuren
The Vermont legislature passed its nonconsensual pornography statute in 2015,136 which contains the main disclosure and consent elements, as well as several exceptions, that are in line with Franks’s model statute.137 In contravention of Franks’s model, the Vermont statute includes an intent-to-harm provision, and a requirement that a reasonable person would suffer harm as a result of the nonconsensual disclosure.138 The statute also incorporates a reasonable expectation of privacy provision in one of the exceptions to the law.139 The Vermont Supreme Court also offered its own narrowing provision in State v. VanBuren.140 The court’s application of this narrowing provision results in an arguably weaker statute that will have little effect where a revenge porn victim initially shared the image with another person voluntarily. Under the court’s application of its narrowing provision, if the parties involved are not in a traditionally defined romantic relationship, the victim is deemed to have no reasonable expectation of privacy in the image.141 Thus, the victim would have no redress under the statute.
The State prosecuted Rebekah VanBuren under section 2606 after she posted nude photos of the complainant to the Facebook profile of Anthony Coon, a mutual “friend.”142 The complainant had sent the photos via private message to Coon’s Facebook account, not realizing VanBuren had access to the account.143 VanBuren refused to remove the photos, and told the complainant “that she was going to ruin [her] and get revenge.”144 As the first person in Vermont to be prosecuted under section 2606, VanBuren took the opportunity to mount a facial constitutional challenge to the law, arguing that it “violated the First Amendment . . . because it restricted protected speech and it could not survive strict scrutiny.”145
The trial court found for the defendant after concluding the statute “imposed a content-based restriction on protected speech,” and that “the State failed to show that there were no less restrictive alternatives available.”146 The Vermont Supreme Court reversed on the issue of the statute’s constitutionality, upholding the law after applying strict scrutiny.147 However, in an unexpected move, the court proceeded to decide the case on the merits and ultimately found for the defendant.148
Without considering the other categories of scrutiny, the Vermont Supreme Court assumed section 2606 was a content-based restriction on protected speech, and thus applied strict scrutiny.149 To survive strict scrutiny, the state must show the restriction is “narrowly tailored to serve a compelling government interest.”150 Given the harm caused by nonconsensual pornography, the low constitutional significance the Supreme Court typically affords speech involving purely private matters, and the existence of similar privacy restrictions in other contexts that attract little to no First Amendment scrutiny, the Vermont Supreme Court found section 2606 served a compelling state interest.151
After analyzing the text of the statute, the court found it was sufficiently narrow based on the following aspects: the restricted content is narrowly defined; the disclosure and lack of consent must be knowing; there must be a specific intent to harm; the harm caused is based on an objective standard; and images disclosed in the public interest, as well as those created in “public or commercial settings or in a place where a person does not have a reasonable expectation of privacy,” are excluded.152 Based on this final element, the court went a step further to offer an additional narrowing construction, and asserted that “images recorded in a private setting but distributed by the person depicted to public or commercial settings or in a manner that undermines any reasonable expectation of privacy” should also be excluded.153 Because the statute both served a compelling state interest and was narrowly tailored to serve that interest, the court found the law survived strict scrutiny and upheld it as constitutional.154
This decision was initially seen as a win for proponents of nonconsensual pornography laws.155 However, it is overshadowed by the final verdict in favor of the defendant. In her defense on the merits, VanBuren argued that the complainant had no reasonable expectation of privacy in the photos she sent to Mr. Coon, and thus no liability could attach as a result of VanBuren having posted the photos publicly on Facebook.156 The court agreed, finding the state failed to make out a prima facie case because it provided no evidence that the relationship between the complainant and Mr. Coon was “sufficiently intimate or confidential” to engender a reasonable expectation of privacy in their communications.157
This conclusion is a clear result of the court’s application of its narrowing provision. The narrowing provision, which excludes images distributed in a manner that would undermine the depicted person’s reasonable expectation of privacy, is in line with the existing language of the statute.158 However, the court’s gloss on its narrowing provision arguably goes beyond the text of the statute to create an entirely new exception for images shared by the person depicted, with one other recipient, where there is no readily definable romantic relationship between the two parties.159 While the statutory exception clearly refers to images created voluntarily in a place where the person depicted has no reasonable expectation of privacy160—such as in a public park, during a commercial photo or video shoot, or an analogous situation—the court’s interpretation obscures this meaning by including images that are taken in private and then shared voluntarily with one other person, when that person is not necessarily an exclusive romantic partner.161
By applying the law in this way, the court appears to contravene its own interpretation of its narrowing provision, which stated “there is no practical difference between a nude photo someone voluntarily poses for in the public park and one taken in private that the person then voluntarily posts in that same public park.”162 While it may be the case that one does not have a reasonable expectation of privacy in an image one shares with the public, the complainant here did not share her image with the public, or even with all of her Facebook friends; she sent it via private message to a single recipient.163 Because the court construed the statute to include a reasonable expectation of privacy as an element of the crime—rather than an affirmative defense—the state failed to meet its burden in showing the victim had a reasonable expectation of privacy in the image she initially shared voluntarily.164 The court thus affirmed the trial court’s dismissal of the claim.165
Why did the court feel the need to add its own narrowing provision to a statute that was already, by the court’s own account,166 sufficiently narrow to withstand constitutional scrutiny? One possible answer is, despite the court’s admittedly deep analysis and careful weighing of both the privacy and free speech interests at stake, the presumption against constitutionality167 that comes with strict scrutiny carries so much weight that the court could not help but be pulled by its gravitational force—even after finding the statute constitutional. This is arguably the point of strict scrutiny analysis: to prompt courts to be exceedingly skeptical of laws that either directly or indirectly have the effect of stifling free expression.168 But the VanBuren decision shows how this analysis may also distort the court’s view of the salient issues at stake. Without the presumption against constitutionality that comes with strict scrutiny,169 the court might have been satisfied that section 2606 was sufficiently drafted to protect the privacy interests of revenge porn victims, and that it did not disproportionately burden the free speech interests at stake. Instead, the skepticism attendant to strict scrutiny led the court to adopt a narrowing provision, the application of which will make it difficult—if not impossible—for a wide swath of revenge porn victims in Vermont from achieving redress under section 2606.
2. Illinois & People v. Austin
In contrast, the Illinois Supreme Court applied intermediate scrutiny to its nonconsensual pornography statute in People v. Austin,170 and ultimately upheld the law.171 The Illinois statute, section 11-23.5,172 contains the basic dissemination and consent provisions found in Franks’s model statute.173 The dissemination element requires an intentional (purposeful) mens rea, just like the model.174 The consent element requires a knowing or negligent mens rea,175 in line with the model statute, which calls for no higher than a recklessness standard.176 The statute also includes a reasonable expectation of privacy provision, which requires that the disseminator “obtain[ed] the image under circumstances in which a reasonable person would know or understand that the image was to remain private.”177 The reasonable expectation of privacy provision calls for a negligence mens rea.178
The State prosecuted Bethany Austin under section 11-23.5 after she sent nude photos of her ex-fiancé’s lover to their mutual friends and family.179 In response, Austin moved to dismiss the charge, arguing the statute is a content-based restriction on speech and is therefore unconstitutional on its face.180 The court rejected the contention held by both parties that section 11-23.5 was a content-based restriction requiring strict scrutiny.181 Instead, the court found the statute was a “content-neutral time, place, and manner restriction . . . regulat[ing] a purely private matter.”182
The court based its decision to apply intermediate scrutiny on these two distinct conclusions: first, that the statute was “a content-neutral time, place, and manner restriction”; and second, that it “regulates a purely private matter.”183 Regarding the first conclusion, the court acknowledged the statute targets a particular category of speech while explaining that “[g]overnment regulation of speech ‘is content neutral so long as it is justified without reference to the content of the regulated speech.’”184 Relying on City of Renton v. Playtime Theatres,185 and Turner Broadcasting System v. FCC,186 the court concluded that “the proper focus is on whether the government has addressed a category of speech to suppress discussion of that topic.”187
The purpose of section 11-23.5 is not to suppress speech, but is rather focused on protecting privacy.188 Because the statute does not prohibit the communication of specific content, but rather regulates the manner in which the content described in section 11-23.5 may be communicated, the court reasoned that it is “[t]he manner of the image’s acquisition and publication, and not its content, [which] is thus crucial to the illegality of its dissemination.”189 Such a law is therefore subject to intermediate scrutiny because it “generally present[s] a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”190
Addressing the second conclusion, the court looked to the overarching purpose of the First Amendment, finding that while “speech on public issues occupies the highest position of the hierarchy of [F]irst [A]mendment values and is entitled to special protection,” those “protections are less rigorous where matters of purely private significance are at issue.”191 The court had no trouble recognizing “that the nonconsensual dissemination of the victim’s private sexual images was not an issue of public concern.”192 As such, the statute simply “does not pose such inherent dangers to free expression or present such potential for censorship or manipulation as to justify application of strict scrutiny.”193
This point is significant because the court looked beyond the categories of “content-based” and “content-neutral” to contend with the fundamental purpose of the First Amendment.194 By basing its decision to employ intermediate scrutiny on the underlying goals of free speech protections, namely to foster and safeguard public debate on matters of social and political import, the court engaged directly with the competing interests of free speech and privacy and reasoned that the statute was not a threat to those goals.195 Under this intermediate scrutiny analysis, the court held section 11-23.5 was sufficiently narrowly tailored to serve a compelling state interest, and that it did not restrict more speech than necessary.196
The court reinforced its holding that section 11-23.5 is a privacy regulation aimed at protecting purely private information, rebuking Austin’s attempt to argue that once an image is shared, it ceases to be a private matter absent express assurances that it will remain confidential.197 Instead, given the nature of such intimate images as purely private material, the court found there is an implicit duty on the part of the recipient to keep such images private.198 By characterizing the statute as a content-neutral time, place, and manner restriction, the Illinois Supreme Court afforded the privacy interests at stake equal weight to the free speech concerns advanced by the defendant.199
3. Minnesota & State v. Casillas
a. Court of Appeals Decision
In December of 2019, an appellate court in Minnesota struck down the state’s nonconsensual pornography statute as overly broad in State v. Casillas.200 The statute, section 617.261, went into effect in August 2016, and prohibits the intentional dissemination of a sexual image of an identifiable person without consent where the person depicted has a reasonable expectation of privacy in the image.201
The dissemination provision requires an intentional (purposeful) mens rea, in keeping with the model statute.202 The consent provision requires only a negligence mens rea, meaning the actor may be held liable if he should have known the person depicted did not consent to its dissemination.203 Similarly, the reasonable expectation of privacy provision requires only a negligence mens rea as to the actor’s understanding of the depicted person’s privacy expectations.204 A violation of section 617.261 is a gross misdemeanor, unless certain aggravating factors are present.205 Two notable aggravating factors are (1) “the person depicted in the image suffers financial loss due to the dissemination of the image,” and (2) “the actor disseminates the image with intent to harass the person depicted in the image,” which relate to the issues of specific intent and actual harm caused by the proscribed conduct.206
Michael Anthony Casillas was charged with violating section 617.261 after he accessed his ex-girlfriend’s wireless account and stole her private, intimate photos and videos before sharing them directly with at least forty-four recipients and posting them online.207 The trial court found the statute regulates obscenity, and thus rejected Casillas’s facial challenge to the statute as overbroad, and found him guilty.208 However, the appellate court reversed, finding section 617.261 does not regulate obscenity, and that the statute is unconstitutionally overbroad on its face.209 On December 30, 2020, the Minnesota Supreme Court reversed that decision, upholding the law as constitutional.210
The intermediate appellate court proceeded from the assumption that section 617.261 is a content-based restriction on expressive conduct, and thus framed the inquiry in terms of whether the statute prohibits a substantial amount of protected speech in relation to its legitimate sweep.211 The court rejected the state’s contention that as a privacy regulation, the statute does not implicate the First Amendment, because privacy invasions are not a category of unprotected conduct.212 Ultimately the court concluded the statute is unconstitutionally overbroad because it lacks a specific intent-to-harm element, and because the consent and reasonable expectation of privacy provisions require only a negligence mens rea.213
Because of the negligence mens rea, the court purported to imagine a plethora of otherwise innocent conduct that would engender criminal liability under the statute.214 The court never considered how the context in which an intimate image is obtained will inform whether a reasonable person in the actor’s position would, or should, know the person depicted never consented to its disclosure.215 Instead, the court assumed an actor who finds and then shares an image on the internet depicting the kind of nudity described by the statute, without knowing the circumstances of its provenance, would be held liable under section 617.261 if it turns out the person depicted never consented to its dissemination.216
However, it is not at all clear that a court or jury would find a person in the actor’s position reasonably should have known the person depicted neither consented to its dissemination nor had a reasonable expectation of privacy in the image. While the court worried about the chilling effects section 617.261 will have on expressive conduct, it appeared wholly unconcerned with the chilling effects on the private, expressive conduct involved in creating the images which may become revenge porn in the absence such a law.217 Because the court proceeded from the assumption that it must apply strict scrutiny, it readily found an incurable constitutional problem with the statute.218
b. Minnesota Supreme Court Decision
On December 30, 2020, the Minnesota Supreme Court reversed219 the appellate court’s finding that the statute failed to survive strict scrutiny. The court declined to determine whether the Minnesota statute was a content-based or content-neutral restriction because it was satisfied that even under the more exacting strict scrutiny standard, the statute was constitutional.220 Given the obvious harm wrought by the dissemination of nonconsensual pornography, the court found that the state had a compelling interest in preventing such harm to its citizens.221 The court then determined that the statute was narrowly tailored to serve that interest.222 It enumerated five factors that compelled this result: (1) the legislature specifically defined the proscribed image;223 (2) the disclosure must be intentional, as opposed to reckless or negligent;224 (3) there are numerous exemptions protecting dissemination for legal, scientific, medical, commercial, educational, or journalistic purposes;225 (4) the defendant must act without consent to be eligible for prosecution;226 and (5) crucially, the type of speech proscribed by the statute involves only private speech.227 This final factor is significant, and illustrates an important aspect of the U.S. Supreme Court’s First Amendment jurisprudence—i.e., that certain private speech does not carry the same constitutional weight as speech involving matters of public concern.228 Having rejected the appellate court’s reasoning for invalidating the statute, the Minnesota Supreme Court remanded with instructions to render a decision on Casillas’s remaining issues raised on appeal.229
While this decision is certainly a win for privacy advocates and revenge porn victims, the court’s application of strict scrutiny is at odds with its recognition that private speech has diminished constitutional value. That the court side-stepped the question of whether the statute was a content-based or content-neutral restriction on speech on its way to concluding that the law survives strict scrutiny also reveals a discomfort with such a categorical approach. Rather than grapple with that question, the court obviates the need for discussing such a distinction by jumping to the strict scrutiny analysis. This may have been the “safer” choice—by holding the statute to the heightened standard, the court kills two birds (i.e., standards of review) with one stone. However, by side-stepping the threshold question of whether strict scrutiny applies, the court is chipping away at the distinction between strict and intermediate scrutiny. The court thereby sets a precedent that will no doubt increase the state’s burden in future cases because the state will presumably always have to satisfy strict scrutiny in cases involving First Amendment challenges to its laws. The ultimate outcome here is a win for revenge porn victims and privacy advocates, but it remains to be seen how the court’s analysis will shape cases involving similar clashes between privacy and free speech in the future.
III. Proposal
Courts confronting First Amendment challenges to revenge porn laws should decline to apply strict scrutiny as the operative legal standard. Strict scrutiny is the appropriate standard of review when the statute at issue works to censor ideas or stifle political debate. In such contexts, strict scrutiny is doubtless a necessary bulwark against government overreach and oppression of disfavored or minority viewpoints. However, when properly drafted, nonconsensual pornography laws do not implicate the kind of speech the First Amendment and strict scrutiny are meant to protect. Further, because nonconsensual pornography laws work to protect the privacy of victims, these statutes ultimately serve the First Amendment by safeguarding the kind of intimate expression Citron argues is necessary for identity formation. By holding revenge porn laws to the onerous strict scrutiny standard, courts risk victims’ freedom to express themselves in intimate relationships in favor of the disseminator’s freedom to share another’s intimate image as a perverse form of entertainment. Rather than relying on a categorical approach that often triggers a strict scrutiny analysis, courts should look to the Illinois Supreme Court, together with Justice Breyer’s balancing approach, as models for assessing the validity of their own nonconsensual pornography laws.
A. Strict Scrutiny Is Most Appropriate Where Core Political Speech Is Implicated
The Supreme Court has interpreted the Free Speech Clause of the First Amendment to protect a broad swath of expression, including speech about “politics, nationalism, religion, or other matters of opinion.”230 Strict scrutiny review, as already discussed, carries a presumption that the challenged law is unconstitutional, and imposes an onerous burden on the state to overcome that presumption by proving the statute is narrowly tailored to serve a compelling state interest.231 This level of scrutiny is appropriate where the core tenants232 of the First Amendment are at stake. Because of the potential chilling effects that come with censorship of ideas regarding matters of public concern,233 and the ensuing detrimental effects such censorship can have on our democratic institutions,234 strict scrutiny is necessary in certain circumstances to safeguard the free exchange of ideas.
However, when the ideas at issue do not involve matters of public or political import, but rather only concern private interactions, such a high standard of review is not necessary because the First Amendment ideals at stake are minimal. The Court has already recognized as much in the case of City of San Diego v. Roe,235 where a cop was fired after his superiors discovered he was selling self-styled porn on eBay. Because the speech at issue did not involve a matter of public concern, the Court declined to apply the balancing test it established in Pickering v. Board of Education,236 in which a court must balance the employee’s right to freely comment upon matters of public concern against the state’s interest in maintaining a well-functioning workplace.237 Like strict scrutiny, such a balancing test functions to protect employees’ right to free speech in the face of a government employer’s sanctions. Instead, the Court in City of San Diego v. Roe had no trouble concluding that the speech at issue—making and selling pornography while clad in his police officer uniform—did not involve a matter of public concern.238 Accordingly, the San Diego Police Department’s decision to fire him over the videos was not subject to the higher scrutiny involved in Pickering balancing.239
This conclusion—that speech not involving a matter of public import does not implicate core First Amendment values—also animated the Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.240472 U.S. 749 (1985). In that case, the Court refined its holding from Gertz v. Robert Welch, Inc.,241 to find that a private plaintiff in a defamation case need not prove actual malice where the statements at issue involve only private matters.242 The speech at issue in Dun & Bradstreet involved information in the plaintiff’s credit report, which erroneously stated the plaintiff had filed for bankruptcy.243 In contrast to New York Times Co. and Gertz, the Court concluded that the false statements in the credit report were of little constitutional value, and that the state’s interest in protecting the private plaintiff’s reputation was substantial in relation to the potential chilling effects of allowing presumed and punitive damages.244 In other words, because the speech at issue added little value to public discourse, its First Amendment protections were not as stringent as speech involving matters of public concern.245 Therefore, the plaintiff did not need to meet the high “actual malice” burden established in New York Times Co. and was entitled to both presumed and punitive damages even absent such a showing.246 Courts should employ this same reasoning when it comes to First Amendment challenges to revenge porn laws: where the speech targeted by a given statute involves matters of only private concern, First Amendment protections are less stringent and may be outweighed by the state’s interest in protecting individuals’ privacy.247
B. Properly Drafted Revenge Porn Statutes Do Not Implicate the Kind of Speech at the Core of First Amendment Protections
Nonconsensual pornography statutes that adhere to Franks’s model statute do not implicate the kind of expression traditionally protected by First Amendment strict scrutiny analysis. If properly drafted, a nonconsensual pornography statute would prohibit an actor from disseminating only those intimate or sexually explicit images of an identifiable person without their consent.248 A properly drafted statute would include an exception for intimate images disclosed pursuant to law enforcement work, medical need, or other public interest, and would also exclude images of people who voluntarily expose themselves in public or in a commercial setting.249 Further, Franks is clear that the requisite mens rea for each element of the crime would preclude purely accidental disclosures from criminal sanction.250
Admittedly, not every state legislature has drafted their revenge porn statute according to Franks’s Guide.251 Courts dealing with challenges to revenge porn laws will have to assess each statute according to its own terms. If a court finds a statute prohibits only private speech, the presumption should not be against the statute’s constitutionality.252 Instead, where it is clear the statute proscribes only private speech,253 courts should decline to apply strict scrutiny. By rejecting this heightened standard in favor of intermediate scrutiny, the practical implications will result in states having a lower burden in proving the statute is sufficiently tailored to serve its important interest.254 With an intermediate level of scrutiny, nonconsensual pornography statutes that lack a reasonable expectation of privacy or specific intent provision are more likely to withstand a First Amendment challenge.255 Courts will still have to engage in balancing First Amendment protections against the state’s interest in protecting privacy, but it will be a true balancing—the deck will no longer be stacked against states256 in their effort to protect the privacy of its citizens.
C. Justice Breyer’s Balancing Approach
Courts confronting free speech challenges to revenge porn laws should also look to Justice Breyer’s First Amendment jurisprudence for guidance. Justice Breyer has spoken out in both concurrence and dissent to caution against reliance on pre-ordained categories like content-based and content-neutral and their attendant presumptions.257 Where a case centers on the clash between free speech on the one hand, and privacy interests on the other, Justice Breyer has pushed back on the application of strict scrutiny as “out of place where . . . important competing constitutional interests are implicated.”258 Favoring a more nuanced approach to such a thorny issue, Justice Breyer would instead ask whether the proposed regulation has a disproportionate effect on free speech in light of the “privacy and speech-related benefits” at stake, “taking into account the kind, the importance, and the extent of these benefits, as well as the need for the restrictions in order to secure those benefits[.]”259 While this may not appear to be particularly revolutionary—after all, balancing competing interests is what judges are called on to do all the time260—it is a necessary reminder of the important interests at stake when free speech and privacy collide. Justice Breyer is simply returning the focus to the underlying issues themselves.
Even so, where the restriction appears to implicate the kind of speech the First Amendment is traditionally thought to protect, Justice Breyer believes a strong presumption against constitutionality is appropriate.261 But where the government is regulating an area arguably within its purview, like sensitive personal information, courts should take seriously the reasons put forth for such a restriction and determine whether any incidental restrictions on free expression outweigh the harm sought to be quelled.262 This approach not only honors the gravity of competing constitutional rights, but also respects the separation of powers between the coordinate branches by recognizing the legislature’s obligation to regulate activity the electorate deems necessary.263 If courts confronting First Amendment challenges to nonconsensual pornography statutes took Justice Breyer’s approach seriously, they would have to consider not only the free speech interests of defendants, but the equally weighty privacy interests of victims.264
The obvious counterargument to employing Justice Breyer’s approach is that he is merely one Justice, and his approach has never garnered enough votes to win a majority. However, Justice Breyer’s approach is arguably in line with, and perhaps more faithful to, the Court’s First Amendment jurisprudence. When confronted with clashes between free speech and privacy—“a conflict between interests of the highest order”265—the Court has been careful to circumscribe its opinions, limiting its rulings to the facts at hand.266
Florida Star v. B.J.F.267 is illustrative. Rather than relying on predetermined categories that carry presumptions of unconstitutionality, the Court carefully weighed the privacy interests of a rape victim whose name was published in the local paper (in contravention of the paper’s own policy and state law), against the First Amendment rights of the paper to publish truthful information regarding a matter of public concern.268 The Court ultimately found for the Florida Star, however it explicitly rejected the proposition that “there is no zone of personal privacy within which the State may protect the individual from intrusion.”269 In acknowledging the important privacy interests of the victim, and stressing its holding was limited, the Court signaled its willingness to accept there may be future cases in which privacy interests outweigh free speech concerns.270
By giving equal weight to the free speech and privacy concerns at stake, nonconsensual pornography statutes will be less burdened by the presumption against constitutionality. Still, this approach allows for the possibility a given statute may be struck down for impermissibly restricting more speech than necessary to achieve its privacy-related goals. Given the nature of nonconsensual pornography—which has no political value and creates an extremely damaging invasion of privacy271—courts should shun any approach to construing such laws that would replace careful analysis of the relevant interests with a cut and dried application of pre-ordained categories.272
Conclusion
Recent history has shown nonconsensual pornography laws are necessary to curb the practice of sharing intimate images without consent. Legislatures across the country have recognized the need for such regulation. Courts should not dispose of these efforts by relegating nonconsensual pornography statutes to a predefined, presumably unconstitutional category in lieu of careful consideration of the important competing interests at stake. If courts reckon honestly with the competing constitutional interests, all stakeholders will benefit. Such reckoning will provide a more solid foundation upon which legislators, law enforcement, courts, and affected individuals may build an equitable nonconsensual pornography law regime.