Free Speech

Vermont Supreme Court Reads Revenge Porn Law Narrowly

Alice sends nude picture to her ex, Bob. Bob's new girlfriend (or maybe would-be girlfriend) Carol gets it and posts it online. Carol wouldn't be guilty under the state revenge porn statute, the court rules.

|The Volokh Conspiracy |

In State v. VanBuren (2018), the Vermont Supreme Court held that the state's ban on distributing nonconsensual pornography was facially constitutional, despite the First Amendment; but just last week, it concluded that the statute didn't apply to someone sharing a photo that the subject had "sexted" to someone with whom she had no present romantic relationship, First, the facts:

Complainant sent nude pictures of herself to Anthony Coon via Facebook Messenger, Facebook's private messaging service. Her sworn statement reflects that on October 8, 2015, multiple people contacted her to report that the nude photos of her had been publicly posted on Mr. Coon's Facebook page and she had been tagged in them. Complainant initially tried to untag herself but was unable to. She eventually deleted her account. She left Mr. Coon a telephone message asking that he delete the pictures from Facebook.

Complainant then received a call from Mr. Coon's phone number. The caller was defendant [Rebekah VanBuren]. Defendant called complainant a pig and said she was going to tell complainant's employer, a child-care facility, about "what kind of person work[ed] there." Defendant said that she had left her "ex" for Mr. Coon. Complainant asked defendant to remove the pictures from Facebook, and defendant replied that she was going to "ruin" complainant and "get revenge." After that call ended, complainant contacted the police.

The investigating officer spoke with defendant over the phone. Defendant admitted that she saw the nude pictures of complainant through Mr. Coon's Facebook account and that she posted the pictures on Facebook through Mr. Coon's account. Defendant stated to the officer, "you think she [complainant] learned her lesson." …

The parties … stipulated that "complainant was not in a relationship with Mr. Coon at the time the photographs were sent to Mr. Coon." Finally, they stipulated that defendant did not have permission to access Mr. Coon's Facebook account, and Mr. Coon believes defendant gained access to his account through her phone, which had his Facebook password saved on it.

Now, the legal analysis:

[In our decision upholding the statute against a facial challenge,] we held that the statute survives strict scrutiny because it is narrowly tailored to serve the State's compelling interest in regulating this form of speech, which because of its purely private nature has low constitutional significance, and which has the potential to cause severe harm to the individuals depicted in the images.

To avoid potential constitutional infirmity, we provided a narrowing construction of the statute's provision excluding from the statute's reach images involving nudity or sexual conduct in a setting in which the depicted person does not have a reasonable expectation of privacy. In particular, we clarified that this should also be understood to exclude from the statute's reach "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." Although we upheld the facial validity of the statute, we concluded that the State could proceed with the prosecution only if it could show that (a) complainant had a reasonable expectation of privacy in the images, and (b) the statute is constitutional as applied….

We conclude that dismissal is appropriate because the State has not established that it has evidence showing that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon. The statutory exception for images taken in a setting where there was no reasonable expectation of privacy, or previously distributed in a manner that undermined that expectation of privacy, is fundamental to the constitutionality and purpose of this statute, and must be understood as an element of the crime. The State bears the burden of establishing that it has evidence as to each element of the offense, including this one. Because the State has stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent Mr. Coon the photo, and there is no evidence in the record showing they had any kind of relationship engendering a reasonable expectation of privacy, we conclude the State has not met its burden.

The requirement that the images at issue be subject to a reasonable expectation of privacy is central to the statute's constitutional validity under a strict-scrutiny standard. A content-based restriction on First Amendment-protected speech like § 2606 can withstand strict scrutiny only if it is narrowly tailored to serve a compelling state interest. The compelling state interest underlying § 2606 is "to protect people['s] reasonable expectations of privacy in intimate images of them," and prevent the serious harms that can result when those expectations are broken. We noted that "[w]here an individual does not have a reasonable expectation of privacy in an image, the State's interest in protecting the individual's privacy interest in that image is minimal." Where the State has only a minimal interest at stake—such as where the individual depicted did not have a reasonable expectation of privacy—a prosecution under § 2606 would not be a justifiable incursion upon First Amendment-protected speech. Our conclusion that § 2606 is narrowly tailored insofar as it penalizes only the disclosure of images in which the depicted person had a reasonable expectation of privacy rested in part on our construction that the statute would apply only where the person depicted had not distributed the images in a way that would undermine their reasonable expectation of privacy….

The State has not shown it has evidence that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon…. We do not attempt to precisely define here where and when a person may have a reasonable expectation of privacy for the purposes of § 2606(d)(1), except to note that it generally connotes a reasonable expectation of privacy within a person's most intimate spheres. Privacy here clearly does not mean the exclusion of all others, but it does mean the exclusion of everyone but a trusted other or few….

We conclude that the State has not shown, as we held it must, that the images were not distributed by the person depicted in a manner that undermined any reasonable expectation of privacy. As the State acknowledged in its briefing, "it is difficult to see how a complainant would have a reasonable expectation of privacy in pictures sent to a stranger." But the State has not presented evidence to demonstrate that, in contrast to a stranger, Mr. Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others.

Nor has it offered evidence of any promise by Mr. Coon, or even express request by complainant, to keep the photos confidential. The State stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent the pictures. In the face of this stipulation, the facts that complainant and Mr. Coon apparently knew each other, had each other's contact information, and had a conversation about whether Mr. Coon was sleeping with defendant, are not sufficient to support an inference that she had a reasonable expectation of privacy….

Under this analysis, by the way, it wouldn't have been a crime for Mr. Coon to post the material himself, so long as he and the complainant were no longer in a "sufficiently intimate or confidential" relationship when complainant had sent him the material (and there was no promise to keep the material confidential). Indeed, the same would presumably apply if complainant and Mr. Coon had never been in a relationship, and the sexting was a means of flirting.

UPDATE: Prof. Eric Goldman (Technology & Marketing Law Blog) has more.

NEXT: Bayer to Waste $5.6 Billion Trying to Appease Anti-Pesticide Activists

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  1. I’m worried about Ted – what happened to him in all this?

    https://en.wikipedia.org/wiki/Bob_%26_Carol_%26_Ted_%26_Alice

  2. This ruling scuttles a criminal proceeding.

    Is there still a civil suit remedy available?

  3. “Under this analysis, by the way, it wouldn’t have been a crime for Mr. Coon to post the material himself, so long as he and the complainant were no longer in a ‘sufficiently intimate or confidential’ relationship when complainant had sent him the material (and there was no promise to keep the material confidential). Indeed, the same would presumably apply if complainant and Mr. Coon had never been in a relationship, and the sexting was a means of flirting.”

    I think the act of sending nude images implies at least a request to keep them confidential, absent specific language between the parties otherwise. I think the Court rushes to dispense with expectation of privacy a little too much here.

    1. Of course you’re correct re sending implying at least a request for confidentiality. But unless the law changes, I think the legal standard is: Is there a reasonable **expectation** of privacy. The court is, I think, correct in saying, “Well, if there’s no special relationship between the two of you, then why on earth would anyone expect dirty pix to be kept confidential?” Hence the famous Latin warning, “Caveat Spanktor” (Let the sender of porn beware.)

      We all agree that receiving these photos and then passing them on (other than, perhaps, to law enforcement in some situations) is repulsive and bad behavior. But illegal? I have my doubts.

      1. Some women receive entirely unsolicited dick pics from guys. I really don’t think these guys have a *reasonable expectation* of privacy. The man clearly can’t think the picture is entirely “private” if he just decides to send it out when it has not been requested. I don’t think his adding “please don’t share” makes any difference to my assessemnt of whether this is a “private” picture.

        Under these circumstances, I think the woman should be well within her legal rights to post the picture, comment on the man’s behavior and perhaps on the merits of the dick in the picture. Whether that’s what she ought to do is another matter, but sharing these shouldn’t be illegal nor should it be considered invading the man’s privacy.

        If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man. I agree with the court.

        1. “If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man.”

          If you start by assuming your conclusion is true, nobody should be surprised when you “prove” you conclusion. Here, I’ll do it the other way.
          If naked pictures are inherently private, then anyone who access them by whatever method and then further distributes them has violated someone’s privacy.

          Under your logic, the massive release of celebrities’ nude photos dubbed the fappening weren’t an invasion of privacy, because the hacker(s) didn’t have a personal relationship with the celebrities.

          1. James
            >If naked pictures are inherently private
            So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.
            In fact: naked picture are not inherently private. Moreover, neither society nor the courts treat them as such. If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.
            Context and behavior of the person pictured affects whether the pictures are private or not.

            >Under your logic
            Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them, then the celebrities weren’t treating them as private and they weren’t. The celebrities did not send the pictures to hackers either accidentally or on purpose. The hackers obtained them by hacking.

            BTW: Yes. I do assume that people who voluntarily disseminate their pictures, confessions, or deep dark secrets to others who don’t wish to receive the pictures, confessions or deep dark secrets have no reasonable expectation that the others will keep these things private. The picture senders and so on may have expectations, but those are delusional.

            1. “So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.”

              You managed to figure out what that was an example of? Brilliant! And all I had to do was explicitly say that’s what it was.

              “Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them”

              Good lord. I have to explain YOUR logic to you, as well as mine? Fine. Start by getting your facts straight. For example, stop insisting on inserting “people sent photos” when the facts don’t happen to include that one. Get it? The celebrities didn’t *sent the pictures* to the person who published them. But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

              “If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.”

              You’re also apparently unaware of what “waiver” means. Hint: Before magazines like Playboy and Penthouse (do either of these still exist?) publish photos, they obtain waivers.

              1. Get it? The celebrities didn’t *sent the pictures* to the person who published them.

                Of course not. That is one of my points exactly. I didn’t say they sent the celebrities sent them. In fact, I wrote

                The celebrities did not send the pictures to hacker

                If you wish to understand my logic (and I suspect you do not) you might want to learn the meaning of the word “if”.

                Following my logic it is those who send their pictures themselves who don’t have expectation of privacy. That is why the celebrities can have expectation of privacy, while the complainant in this case or people who send dick pics to stray women do not.

                But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

                Nope. Never said that and it doesn’t follow from my logic.

                You’re also apparently unaware of what “waiver” means.

                Wrong. I know what waiver means. If that’s the word you like: people like the claimant or those who send dick pics to people who don’t want them have, by their actions, waved any reasonable expectation of privacy.

                Also: if one can wave away the privacy in nude photos, then, contrary to your claim the privacy is not inherent in the fact of nudity in the photo. The privacy springs from something other than mere nudity.

                1. ” But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

                  Nope. Never said that and it doesn’t follow from my logic. ”

                  It’s the ruling of the court that you said you agreed with.

      2. Consider the case where person A intends to send their naughty photos to person B, but actually sends them to person C by mistake. Person C hasn’t done anything wrong by receiving them, but they have if they further distribute the images to the public.

        Nekkid pictures, by their nature, are by default expected to be private. Now, that expectation can be expressly waived, but that’s the way I’d have decided the case.

        1. Again, the issue is reasonable expectation of privacy rather than a mere expectation. If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.

          1. “But if you send unsolicited pictures, you can’t reasonably expect that”

            Yes, you can. Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. That’s why “revenge porn” is a crime in the first place.

            Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

            1. > They do this because if you don’t, nobody will send you any.

              Women who are sent dick pick by near strangers don’t want them. The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly.

              >sent using technologies that themselves have an expectation of privacy
              The technology by which these are sent is irrelevant. If the unsolicited pictures being sent to people who don’t even want them are sent by mail, carrier pigeon or SMS, I don’t think the method by which the pictures are sent can confer an expectation of privacy.

              1. “Women who are sent dick pick by near strangers don’t want them.”

                OK. And? This is a case of a woman who got not-dick-pics and had to go looking for them.

                ” The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly. ”

                That is silly. Where did you get it?

                “The technology by which these are sent is irrelevant.”

                Speaking of silly.
                You’re willing to toss aside the wiretap act?

                1. “That is silly. Where did you get it?”
                  Uhmmm… You provided this as the reason people treat nude images as confidential:
                  “Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. ”
                  The corollary would be that women who don’t wish to be sent dick pictures would have absolutely no reason to treat those sent to them as confidential. The man sending them to someone who did not request them certainly can’t reasonably expect that person wants them, and therefor might be motivated to keep them confidential. The receiver has every motive to blab and show them to others– if only to prevent getting further ones!

                  “>Speaking of silly.
                  You’re willing to toss aside the wiretap act?”

                  You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?

                  1. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    AFIK, You are correct as to federal law. State laws vary. Some states allow one participant to consent to recording a conversation, but some states require that all parties consent. So what you describe, could well be illegal under the state wiretap law depending on where you are.

                    1. Yes. I was referring to the federal wiretap act. But one party consent recording is more common than all party consent. So, yes, I am willing to toss all party consent just as many states and the feds have done.

                      FWIW: I live in Illinois, which recording can require 2 party consent with exceptions to comport with the 1st amendment. Among other things, to make it compliant with the 1st amendment a party can record as long as the recording is not “surreptitious”. There is also language about consent. But presumably, the consent is implied the moment a party says they are recording or makes it obvious they are recording and the other party continues in the conversation.

                      (The law also has provisions permitting surrepticious recording with 1 party consent.)

                      It’s also worth noting that I was responding to Pollock who wrote

                      Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

                      This seems to claims that merely sending by SMS or something would transform the final delivered product into something “private”. That’s just not true. Obviously, when sent by email, the sender has consented to the contents of message being “recorded” by the receiver.

                      I think my larger point that that the technology for communicating isn’t what makes a conversation or image private is true. Sending a message by email doesn’t render a spam message from the Nigerian scammer “private” in the sense that I can’t re-post it!

                    2. “This seems to claims that merely sending by SMS or something would transform the final delivered product into something “private”.”

                      Are you just flatly unable to comprehend what has been said to you? It seems to be the case.
                      You didn’t get it right any of the times you tried to summarize what I wrote. Not once.

                  2. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    No, but I DO know that you’re flatly incorrect in fifteen states, including the one I happen to be sitting in at present.

                    1. Yes. And as I told Mathew above, I am willing to throw the two party consent laws out or drastically narrow them, just as many courts periodically do.

                    2. “I am willing to throw the two party consent laws out or drastically narrow them”

                      Interesting, considering how you tried to lecture me that we’re discussing what the law is, not what it should be. But the one time you made a statement about what the law is, you got it 180 degrees wrong.

          2. ” If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.”

            So if you get nude images sent to you by mistake, your inclination is to publish them?

            1. The question is what is legal, not what a person is inclined to do. Lots of people will be disinclined to publish the pictures or secrets or other things not intended for them. But there are two problems with your conclusion based on your analogy.

              With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t “accidentally” sent to the ex boyfriend. They were sent on purpose. So the person who received them didn’t want them, and certainly wouldn’t be “expected” to indulge the sender in the hope of getting more pictures. (The desire for more pictures seems to be your theory about why the sender might “expect” the receiver to keep them private.)

              But even if the accident had occurred, the ‘reasonable expectation’ still wouldn’t exist, which we can see if we change what is sent. Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest. (Perhaps he committed it to inherent funds so he and Jane can run off to the Bahamas and live in splendor.) The note is misaddressed and accidentally is sent to Sally. Joe might have expected his fiance Jane to keep mum. But that hardly binds Sally to keep the contents of this private communication a secret. Most people would expect Sally to trot over to the police and turn Joe in.

              1. “The question is what is legal”

                No, it isn’t. The question is what should be legal. See how that’s not the same thing? Take your condescension and shove it under the mattress, ‘K?

                “With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t ‘accidentally’ sent to the ex boyfriend.”

                Duh? Did somebody say they were?

                “Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest”

                With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t actually a confession of murder. Or, put non-condescendingly, confessions of murder aren’t inherently private. Try again with something that is: Suppose the nekkid pictures aren’t amourous in nature, but rather medical. If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them? Your doctor has a special relationship with you that confers a duty of confidentiality, but the janitor has no such relationship with you. The logic of this ruling says “go right ahead!”
                If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?
                Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                Here’s another type of case where the outcome probably isn’t what the Court anticipates: naked photos are on a computer or device. The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away. On photos that were not intentionally transmitted to anyone… because no expectation of privacy?!?!?!

                1. >No, it isn’t. The question is what should be legal.
                  Uhmm… The court rule is on what is legal or illegal. So yes, the question is what is legal.
                  But I happen to think this is the way it ought to be.

                  > Or, put non-condescendingly, confessions of murder aren’t inherently private.
                  Nude pictures aren’t inherently private either.
                  > If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them?
                  Once again your conclusion about what my logic dictates is incorrect.
                  The doctor is the one who hasbreeched his duty of confidentiality. The cleaning crew employed by the medical establishment almost certainly also has a duty their employer which will include not sharing confidential information the employer accidentally revealed at the office. So, the doctor-patient context and the employment context creates an expectation of privacy with respect to the janitors actions.

                  In contrast, the woman who is sent dick pictures she quite likely doesn’t want to receive has no such duty toward the person who sent them to her.

                  If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?

                  I might not think highly of people who fish around dumpsters to find confidential information, but I think they are free to publish the information. You may very well be able to take legal action against your accountant for his slip-shod methods.

                  Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                  You keep wanting to assume your conclusion. But your assumption is incorrect. Nudie pictures can become non-private through the actions of the person pictures. They are routinely published in magazines like Playboy and Penthouse.

                  The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away.

                  You keep missing the distinction between someone stealing photos (by hacking) and a person voluntarily disseminating their photos. It’s perfectly possible for the law to distinguish between publication of an item obtained by theft (i.e. hacking) and an item given away by the owner (i.e. the man sending a dick pick to an unwilling person.)

                  It’s also perfectly clear that in the latter, the man himself is not treating the his naked pictures as “private”. It is the man’s own behavior that is relevant to the issue of whether his privacy is invaded.

                  1. “Uhmm… The court rule is on what is legal or illegal.”

                    I’m not on the court, and obviously neither are you.

                    Go the fuck away.

                    1. So I don’t suffer fools gladly. Chalk it up as a character flaw.

    2. Where is the “expectation of privacy” in this case?

      Did they have a prior agreement?

      Did the sender write, “Do not post or forward,” and if they did, does that impose some legal obligation on the receiver?

      I’m with the court on this one.

      And a warning to everyone that once you post something on line, then you lose physical control of it.

      You may have some legal control of it (e.g. copyright, proprietary, etc.), but that can’t physically stop someone from using it.

      And once it’s out in the Interuniverse, then tough cookies getting it removed.

  4. “Complainant sent nude pictures of herself to Anthony Coon[CASE DISMISSED!]”

  5. It strikes me that this sort of republication might be a copyright violation.

    If the picture was a nude self-portrait, it seems likely to me that the recipient would have a right to look at the photo or show it to whoever (implied license), but republication (or a public performance?) would require a license, either express or implied, and I don’t think that is present here.

    If the copyright was owned by a third party, that might implicate expectation of privacy but could also be a violation of that person’s rights to publication, etc.

    If the picture had been taken by the boyfriend, things get significantly more complex. If the new girlfriend’s publication was not authorized by the boyfriend, she could be violating his rights, though he might well not be interested in pursuing the issue. If the publication was authorized, that could implicate explicit or implicit agreements between the photographer and model at the time of the photo. In that case, it’s unclear to me how such agreements might be affected by her re-sending the photo back to the photographer.

    But any of those would be a case for a different venue. Probably one without the “victim” friendly features of the state revenge porn law.

    1. Yes, it is a violation of copyright. It is also arguably extortion and blackmail as they threatened to get her fired. Revenge porn cases have been settled civilly on all these counts before. However, the purpose of these laws was expressly to prevent that from being necessary.

      1. It looks like the complainant could file a civil suit:

        he State failed to show that there were no less restrictive alternatives available, or to address why civil penalties, such as those set out in 13 V.S.A. § 2606(e), were not reasonable and effective alternatives. It thus concluded the statute did not survive strict scrutiny and dismissed the State’s charges.

        The provision permitting a civil suit is here:
        https://legislature.vermont.gov/statutes/section/13/059/02606

    2. The copyright idea is interesting. I admit my understanding of copyright is ‘internet search level’ (e.g. https://copyrightalliance.org/ca_faq_post/statutory-damages-why-do-they-matter/ )

      It sounds like filing a DMCA notice with Facebook would be sort a shot. The accused violator would probably take it down, but might also push back and send Facebook a response claiming it was fair use. But I bet it would get taken down.

      If it wasn’t the complainant could then go to copyright court. Getting damages under copyright might be difficult. The image needs to be registered to sue; she can register now. I think actual damages must be financial, and she probably lost $0 as a result of publication. So she would presumably want statutory damages. To get statutory damages you need to register within 3 months of first publication or before the infringement starts. She probably didn’t register the image before sending it to Mr. Coons or before VanBuren posted.

      Still, if her main concern is privacy the copyright claim could backfire. The entire incident could potentially become fodder for discussing the legal claim; those discussions might be able to discuss the photo under fair use! Also, currently, the case is “State vs. VanBuren” and the complainant is unnamed. I assume the complainant would need to reveal her identity in a copyright suit. (And possibly attach the photos as evidence!?)

      I also don’t know much about blackmail. But to be blackmail doesn’t a person demand something like money in exchange for not causing the harm to another? VanBuren threatened to do something to harm the complainant, but doesn’t seem to have made any demand of the complainant. So perhaps that won’t fly.

      1. “If it wasn’t the complainant could then go to copyright court.”

        All records in civil court are presumably public records, which means that after the case proceeds, the images she’d like to limit are available to the public.

  6. This defines revenge porn so narrowly as to effectively delete the statute. This whole thing hinges on the fact that she was no longer in a relationship. The motivation for sending the pictures appears to be an attempt to restart that relationship. This is a completely different scenario than a random picture from a stranger. She was treating him as a lover, and should be able to expect a modicum of privacy.

    From my impression, the judge is creating law whole stop as a moral judgement against attempting to “steal” another woman’s man. I do not find any reasonable “Homewrecker” exemption in the statute. This goes beyond being clearly wrong, and I am inclined to think the judge should be officially censured.

    1. Ben,

      Isn’t the relationship requirement precisely what most people – other than James Pollock here – think is wrong about revenge porn? Two people have a relationship, and in the course of that relationship exchange intimate visual images. One doesn’t need a law degree to understand that such exchanges have an implied promise of confidentiality. How robust that promise is may be open to question, but I think most would distinguish between showing an image on your phone to a friend (to make him envious?) and transmitting it indiscriminately to hundreds or millions.

      The odd situation in this case isn’t like that. I agree that it’s not exactly the scenario Lucia above describes, either. If the question was, “Which is the more gentlemanly course of action?” – well, that wouldn’t exactly help since the new GF found them, but I bet we would agree that disclosure would be wrongful. But given that we are tiptoeing around the First Amendment, making hopefully-informed conjectures about what the average sexter thinks about digital privacy, this counsels caution in applying criminal law to a situation not specifically contemplated.

      1. Adam, that makes the definitions so vague as to be useless. She was obviously treating him as a lover in her act of sending erotic pictures.

        This goes beyond manners and “gentlemanly behavior”. This was a genuine attack on the woman’s reputation combined with explicit threats against her livelihood. This is clearly beyond the realms of manners and is at least civilly liable, if not criminal.

      2. “Isn’t the relationship requirement precisely what most people – other than James Pollock here – think is wrong about revenge porn?”

        Adam, if you read what James Pollock here wrote, and came away thinking he’s not complaining about the relationship requirement, then you are as stupid as lucia.

        ” If the question was, ‘Which is the more gentlemanly course of action?’ – well, that wouldn’t exactly help”

        Because neither the complainant nor the defendant are gentle, or any other kind of, men.

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