Revenge Porn

Law Prohibiting 'Revenge Porn' Violates First Amendment, Says Texas Appeals Court

The state law targeted people who share erotic photographs of others without their consent.

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philipp@nemenz.de Westend61/Newscom

A Texas appeals court has ruled that the state's "revenge porn" law is unconstitutionally overbroad and runs afoul of the First Amendment.

"A statute likely is to be found overbroad if the criminal prohibition it creates is of 'alarming breadth,'" the court notes. "Such is the case with the current statute."

The law, passed in 2015, targeted people who share erotic photographs of others without their consent. It was part of a wave of legislation aimed at the practice—dubbed "revenge porn" because it often involves jilted lovers sharing sexy selfies or videos that their partners had consensually shared with them but had not intended for a wider set of eyes.

But while "revenge porn" is a legitimate problem that many people, especially young women, suddenly found themselves facing, the legislative responses to it were based more on its trendy cachet in media and policy circles. This sudden mass exposure created a demand—or, for ambitious attention-seekers in state legislatures, an opportunity—for government to Do Something. The resulting legislation criminalizing revenge porn often overlooked existing laws that already allowed ways to address such behavior in court, and they frequently encoded vague and overbroad prohibitions on sharing photos. Either redundant or unconstitutional, such measures were opposed by civil liberties groups and praised by local prosecutors.

The Texas Attorney General's Office is still fighting for its flawed law, vowing to take the case to the state Supreme Court. The law the state wants to preserve makes it a misdemeanor crime to disclose or promote "intimate visual material," punishable by up to a year in jail and a $4,000 fine. A convoluted series of offenses and caveats, it involves four particular offenses.

The current case stems from charges against Jordan Bartlett Jones, who was indicted in 2017 for "unlawful disclosure or promotion of intimate visual material," under subsection (b) of the statute. This section bans "intentionally disclos[ing] visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct" without "the effective consent of the depicted person," when the visual material in question "was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; the disclosure of the visual material causes harm to the depicted person; and the disclosure of the visual material reveals the identity of the depicted person in any manner."

Jones filed an application for Writ of Habeas Corpus, arguing that the law was facially unconstitutional. A trial court denied the application, and he appealed to the Texas 12th Court of Appeals.

The appeals court ordered that the charge against Jones be dropped, declaring the law "an invalid content-based restriction" that was "overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits."

"The Texas Court of Criminal Appeals has concluded that photographs and visual recordings are inherently expressive," notes the 12th Court of Appeals decision. And "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," the court concluded "that the right to freedom of speech is implicated in this case."

The court does not suggest that any nonconsensual disclosure of intimate photographs would be protected First Amendment speech, but that the Texas law as written reaches too far. It does not merely prohibit the disclosure of images judged to be obscenity (which is already illegal) or extortion based on private images (also already illegal). It declares a certain subset of broadly protected images—those that show someone's "naked genitals, pubic area, anus, buttocks, or female nipple" or someone engaged in "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, bestiality, masturbation, or sadomasochistic abuse"—to be inherently impermissible to share without express permission, even when the images are not criminally obscene and even when no extortion, fraud, hacking, or other crime is involved.

Subsection (b) of the law "discriminates on the basis of content," concludes the court, "and content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories" of speech and expression (including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct). "New categories of unprotected speech may not be added to the list based on a conclusion that certain speech is too harmful to be tolerated," it notes:

The State argues in its brief that the expectation of privacy and the nonconsensual nature of the disclosure causes any visual material covered by [Subsection (b)] to be unprotected speech because it is contextually obscene. We disagree. For more than forty years, the issue of whether a matter is obscene, and, thereby, constitutes unprotected speech, has been a determination to be made initially by the trier of fact.

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. Thus, we decline to overstep our role by concluding that any visual material disclosed under Section 21.16(b) is obscene by its context.

The court goes on to dismiss the state's assertion that the law falls under the "compelling government interest in protecting an individual from a substantial invasion of his/her privacy." This is only true when the privacy interest "is substantial and the invasion occurs in an intolerable manner," notes the court. But the way the law is written, it does not only cover such invasions of privacy.

The problem in the law's language "is best illustrated by way of the following hypothetical," suggests the court:

Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara's coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara's supervisor, who terminates Barbara's employment.

In this scenario, Adam can be charged under Section 21.16(b), but so can Charlie and Donna. Charlie has a First Amendment right to share a photograph. Charlie had no reason to know that the photograph was created under circumstances under which Barbara had a reasonable expectation that the photograph would remain private. Charlie was not aware of Barbara's conditions posed to Adam immediately prior to the photograph's creation, nor did he receive the photograph with any commentary from Adam that would make him aware of this privacy expectation on Barbara's part. In fact, there is nothing to suggest that Charlie could not reasonably have believed that Adam found this picture on a public website or had been given permission by the depicted person to share the image with others. Further still, Charlie did not intend to harm the depicted person. Lastly, Charlie did not and could not identify the depicted person because he did not know Barbara.

Yet, under the disjunctive language used in Section 21.16(b)(2), Charlie nonetheless is culpable despite his having no knowledge of the circumstances surrounding the photograph's creation or the depicted person's privacy expectation arising thereunder.

If the law had required "knowledge of the circumstances giving rise to the depicted person's privacy expectation," things might be different. But because it 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 contentbased restriction in violation of the First Amendment," the Texas court concludes.

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  1. The Texas Attorney General’s Office is still fighting for its flawed law, vowing to take the case to the state Supreme Court.

    Why would they fight so hard to keep it on the books? That doesn’t make-

    $4,000 fine

    Oh.

    1. When in doubt, follow the money.

      1. Yeah man, follow the money! If you are Hooker Hulk Hogan, and someone does revenge porn on you, THEN there will be TONS of taxable money paid to lawyers and so forth!!! So, special laws for special people, basically…

        See https://reason.com/blog/2016/03…..nt_5994639 ? About Hooker Hulk Hogan? “Hooker Hulk” gets $115 MILLION, v/s “Stormy Daniels” gets only $130 K, for each of them being skanky hos. The MALE skanky ho gets almost THREE orders of magnitude more money!!! How is THAT for sexual equality?!

        But what gets my bowels in an uproar even more, is that through the courts and policemen enforcing court orders and/or contracts here in these kinds of cases, Government Almighty is the Pimp Daddy and hit-man enforcer of it all! And then they go and jail $50 and $100 poor hookers, to “protect us from trafficking in sex slaves”.

        If Government Almighty is going to be the Big Pimp Daddy and hit-man enforcer, for the rich and famous, then could they PLEASE stop being hypocrites, and stop punishing the “little people” for doing the same things!??!

        1. SIDE-BAND SNIDE COMMENT:

          As a socio-economic and sexual-political experiment, I think someone should get Hooker Hulk Hogan to fuck Stormy Daniels. Which of the two would owe how much money, to the other?

          MAIN COMMENT:

          I think I have figured out WHY does Government Almighty play Big Pimp Daddy to the rich and famous, while punishing the dirt-poor hookers?! When $130 k or $115 million gets thrown around, Government Almighty gets to tax the payment and the lawyers, and grab at least 1/3 of it. Easy-peasy on the big transactions? When a small-time hooker turns a trick “under the table” (a kinky place to do it!), it is MUCH harder to collect! Especially if he or she is paid in smack or crack or Ripple wine?

          I am UTTERLY crushed to have fingered out that Government Almighty (which claims to LOVE me and want to PROTECT me from sleezy sex), is actually just wanting to line its own wallet!!!

          1. Since when is there anything wrong with basing important legal decisions on financial considerations? Such considerations, of course, are exactly why New York’s high court upheld some of the convictions of our nation’s leading criminal “satirist,” on an ad hoc, retroactively applied “damage to reputation” theory that hadn’t even been mentioned at trial. If the convictions had all been overturned, the individual in question could even have sued New York University. The Texas Supreme Court would do well to uphold this law, just the way the New York Court of Appeals upheld that state’s criminal “impersonation” law for inappropriately deadpan parody susceptible of causing damage to a reputation, whether or not the reputation is deserved. See the documentation at: https://raphaelgolbtrial.wordpress.com/

            1. “…whether or not the reputation is deserved.”

              Free speech is an utterly fuddy-duddy concept of old dead white men; we are SOOOO much wiser now! Only Government Almighty is qualified to decide who deserves what kind of reputation!

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  2. “was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

    People should assume that nude selfies are going to be made public 100% of the time.

    1. Nude selfies are one thing, nudie pics taken by someone else are a different matter. It’s a pretty well established point of law that copyright adheres to the photographer, not to the subject of the photograph. (Or the owner of the camera in the case that it’s a monkey taking a selfie with a photographer’s camera.) If you’re sharing somebody’s selfies, you’re liable for copyright infringement. If it’s pics you took with the express reservation that they were not to be shared, you’re liable for contractual damages – despite the adage that verbal contracts are not worth the paper they’re written on, verbal agreements are enforceable.

      Which is not to say that the aggrieved party wouldn’t be better off contacting someone with some knowledge of Photoshop and posting a nude pic of her ex showing his 2 inch dick and a caption indicating the real bone of contention in their relationship.

    2. I don’t know about y’all, but I am proud of my penis. So I am not particularly threatened by revenge porn.

      1. We all know how proud you are of your penis, but can you please take me off your daily text distribution list?

          1. He’s subscribed to the digest version.

            1. digest/blockquote>
              *shudder*

              1. Whoops, Greason fucked me up.

  3. WTF is the Eiffel tower doing there?

      1. Holy shit she’s got to be at least 10,000 ft. tall!

      2. Crusty’s chinchilla cage abode is actually shaped lile the Eiffel tower?

    1. Following the unwritten rule that photos on Reason must never be related to the story where they are displayed.

  4. As long as the person in the photo is an adult and consented to the taking of the picture, I don’t see how posting it on the internet could ever possibly be a crime. The whole thing is absurd. Sorry, if you let people take naked pictures of you, you have no control over where those pictures end up. It is just how life works.

    1. That’s definitely the reality: whether one took the images with the subjects consent or the subject took their own image and sent it to another party, it seems it should hinge on consent only. Legal action should only apply if the image was taken without consent of the subject or the image was procured (stolen) without the subjects consent.

      1. If a site has your picture on it that you never consented to them having, then you should be able to tell them to take it down and sue the hell out of them like Hulk Hogan sued Gawker if they don’t. But no way in hell should any of it ever be criminal unless the picture was taken without your consent or it is a picture of a minor who can’t legally give consent.

        1. But no way in hell should any of it ever be criminal unless the picture was taken without your consent or it is a picture of a minor who can’t legally give consent.

          Minors aside, unless nudity or sex is inherently violent or criminal the consent is a civil matter, not a criminal one. Photographing people in front of an abortion clinic or a movie premier isn’t exactly a criminal act and just because someone doesn’t want to have their photo taken doesn’t make it one. It’s really about criminalizing (male-instigated or -dominated) sex rather than regarding it as a breach of contract and it’s a big reason why the whole Stormy Daniels story is flopping (and it’s advocates can’t understand why).

          IMO, the consent may assuage does but does not absolve implications of damages. Even in the case above, it’s hard to convict Adam of a crime as he couldn’t necessarily know Barbara’s employer anymore than Chuck could recognize Barbara. Donna is the only one with knowledge of the damaging photo, the subject’s identity, and the ability to do actual harm to the subject via sharing the photo.

          1. When I say without consent I mean hidden cameras and things like that. Photographing people without their consent in places they reasonably believe to be private, should be a crime.

            1. Agreed. That’s why any criminality should rest on consent of the photos or video being taken.

            2. So recording an antifa guy threatening to kill you because you are a proponent of free speech should be illegal? He didn’t know you were recording him.

              I think in Texas it is legal to record someone without their knowledge as long as the person doing the recording is part of the conversation/action. The theory being the person doing the recording has as much a right to disseminate speech as you have to privacy. Of course they must be a willing participant in conversation/action.

              1. Jazzizhep: That’s why John had a two point criteria:
                1) Photographing people without their consent
                2) in places they reasonably believe to be private

                So a public protest would not be reasonable considered private. Likewise a public employee engaged in their duties does not have a reasonable expectation of privacy.

                1. Apologies to Jassishep if you were just pointing out that exact point to JQP.

        2. Agreed, it’s a civil matter.

  5. We already has a process for preventing someone from sharing your selfie’s without permission. It’s called the copyright office. It can make the Library of Congress much more fun. If you want to take advantage of economies of scale, go through an adult web camming website that copyrights performances to protect its models. Personally, I prefer to be generous with my lovers. The last time I sent an erotic video selfie to a lover, I included credits with my name and a notice that says it’s in the public domain. If your bitch doesn’t have the foresight to pick on of these paths, use a condom. She’s not baby mama material.

    1. And go ask Gawker about it if you don’t think the system worked pretty well.

  6. What is so horrible about seeing the human body anyway?

    1. You ask that question despite your handle.

  7. But taking someone’s home or business without their permission is ok. Thanks for clearing that up, judges.

  8. Do I even want to know where that model of the Eiffel Tower has been?

    Yes. Yes, I do.

  9. It’s also way too easy to trick idiots into violating such laws. Which is a huge problem with this kind of ‘anti-bullying’ legislation. It inevitably gets exploited to abuse the vulnerable.

  10. You say this law is “redundant” because “existing laws that already allowed ways to address such behavior in court”. What Texas law should this have been charged under?

  11. Nothing that can be solved by just not taking naked photographs of yourself can be considered “a legitimate problem”.

    1. And free speech issues in general could just be solved by not freely speaking. You’ve got a good plan there, tovarishch.

    2. Or, alternatively, simply not caring that naked photographs were taken.

      What realistic consequences could even result from a nude photo (or even a sex tape) in this day and age? Feelings of self-consciousness? The horror!

      1. What realistic consequences could even result from a nude photo (or even a sex tape) in this day and age? Feelings of self-consciousness? The horror!

        I used to be befuddled by the stories about hypothetical people plumbing the depths of internet porn to discover a relatively mundane pic of someone they know and then taking the evidence it to their employer thinking they would be some white knight after wading chest deep in shit. Then Google fired James Damore… and didn’t punish the person who actually leaked the memo to Gizmodo or wherever and actually caused the shitstorm.

  12. Until legislators can start respecting the law they write as a serious gun-point control enforcement measure instead of compulsively using it for election propaganda; they’re going to get the same respect in return. They don’t need more election propaganda law – they need to clarify the law that ALREADY exists and enforce the #%@##@ thing.

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  14. The easy way to avoid revenge porn would be to never let anyone take naked photos of yourself or make a sex tape of you.

  15. If the person taking the photo of a woman has the consent of that woman to take that picture, isn’t that picture the IP
    of the photographer? The woman would have a claim too except she gave her consent to use her image in a picture.

    The easiest fix would be women only do it under an NDA with the person taking the photo. That’s not very sexy though.

    1. Perhaps the law could say that, when a woman (well, a person) permits an intimate partner to take a photograph showing what are considered intimate parts of the body, there is an implied NDA established, even if they don’t discuss it, well, explicitly?

      1. That makes more sense than anything I’ve yet read on the subject. My personal opinion is that if you are stupid enough to allow someone else to take a nudie of you, you should realize that you cannot control who sees it or what they do with it. And this is why none of my ex-boyfriends have any compromising pictures of me.

      2. So law enforcement, lawyers and judges are now mindreaders? What other stipulations should we be able to just add whenever we feel like it?

      3. You raging sexist!
        Don’t you know that anything you do with/for/to a woman during any and all sexual activity must have continuing postive expressed consent? Nothing can be assumed!
        If she doesn’t say “yes, I want you to kiss me, and i give my consent to that one kiss” then stay 10 feet away.
        If she says yes, I want you to kiss me, and i give my consent to that one kiss” , kiss once and stand back until her next positive express consent.

        (alternatively, stay the hell away from a college campus)

  16. Quite amazing that every single time a hypothetical female nude sexting scenario is brought up, it’s ALWAYS topless, as if pussy pics don’t exist. Why must there always be this downplaying of what women would or would not do?

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  18. “If the law had required “knowledge of the circumstances giving rise to the depicted person’s privacy expectation,” things might be different.”

    Doesn’t this seem like a way the legislation could be fixed?

    1. Theoretically, yes that could be a way for the legislation to be fixed. However, under these types of circumstances, such as the hypothetical fact pattern used in this article, proving knowledge of the circumstances could be very difficult. Opening the door to crimes that can be enforced primarily if not entirely upon circumstantial evidence is a dangerous thing. There should be as little guesswork or filling in the blanks as possible when it comes to convicting someone for a criminal offense. Our system is already inherently flawed by the fact that police investigations work backwards from the suspect rather than the investigation leading to the suspect.

  19. Here in Brazil there are still no laws that prohibit pornography for revenge even so it happens in sporadic cases we have many good adult sites with good content like this https://bucetas.blog/categoria/filme-porno/, plus some politicians have been trying to amend to add the laws in force in these cases.

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