Free Speech

Limits of "Revenge Porn" Laws

An interesting D.C. trial court decision from last year, involving an image of nudity submitted as part of a court case.

|The Volokh Conspiracy |

As I mentioned in an earlier post ("Rape Claims, Speech Restrictions, and Consent"), prominent whistleblower lawyer Jesselyn Radack had accused prominent political publicist Trevor FitzGibbon of rape; prosecutors declined to bring charges; and FitzGibbon then sued Radack, claiming her allegations were false.

FitzGibbon's complaint included some partly naked photos that Radack had allegedly sent him, which FitzGibbon said were evidence that their relationship had been consensual and that her claims of rape were therefore libelous. Radack sought a restraining order against FitzGibbon based on that, claiming that this violated Virginia's "revenge porn" statute—but the D.C. court disagreed (Radack v. FitzGibbon, No. 2018 CPO 1516 (D.C. Super. Ct. July 20, 2018)):

[T]he pertinent inquiry [in this restraining order proceeding] is whether there is "good cause" to believe that Respondent "committed or threatened to commit a criminal offense against the petitioner" as per D.C. Code § 16-1005…. [The criminal offense alleged here was] unlawful dissemination of [intimate] images, [which requires] an "intent to coerce, harass, or intimidate" and "malicious[] disseminat[ion]." Va. Code Ann. § 18.2- 386.2(A).

Respondent credibly testified that he filed the lawsuit in order to clear his name. Respondent did not testify that he intended to publish the photos maliciously or with the "intent to coerce, harass, or intimidate" Petitioner. Petitioner did not testify and did not put forth any evidence of Respondent's malice or intent to "harass or intimidate."

The context alone of the instant "dissemination"—i.e. a civil action in a federal district court—coincides more with the purpose of obtaining civil relief than with the purpose of "intimid[ating]" Petitioner. The only extant evidence of intent was the testimony under oath by Respondent, which was unrebutted and unimpeached. Petitioner's argument is seemingly grounded in a per se malicious intent theory given that Respondent could have filed the complaint under seal. However, Petitioner's argument—which concedes the relevance and materiality of the images in question to the underlying suit—does not take into account that sealing is an extraordinary measure as an exception to the public's right to trial information.

Accordingly, given that Petitioner has failed to demonstrate "intent," the court need not address the other issues presented—such as i) whether publication in a court database constitutes "dissemination" or ii) whether such actions are "privileged" by a litigation privilege and iii) whether Respondent should have known he was not authorized to distribute the photo given the absence of evidence in the record.

Sounds quite right to me, though I personally think the better way of crafting these laws (which I think may be constitutional, if properly written) is to expressly exclude from the prohibition certain uses of such sexual images—including in filings with government agencies—rather than using an intent test (see pp. 1405-06 of my Freedom of Speech and Bad Purposes article for more on that). But the result in this case, under the Virginia statute as it's now written, strikes me as quite correct.

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  1. “expressly exclude certain uses of such sexual images—including in filings with government agencies”

    Wouldn’t your solution prohibit the use of those images to support the idea that the relationship was consensual? If the texts are a part of the defense, how do you justify prohibiting them?

    1. Methinks by “exclude” that the Professor meant “exclude from the limitations and penalties of this law”.

      1. Right — I’ve revised that sentence to make that clear.

  2. Is there any reason why the court decided on this as an issue of “intent” rather than the litigation privilege? My understanding is the litigation privilege is very broad, and parties (or the court sua sponte) can seal documents.

  3. I fail to see why courts refuse to make obvious inferences of intent just from the appearance of the web sites that display this kind of material.

    But a better way to handle this would be to enact something like the German photography law, the Kunsturhebergesetz, which simply says that if I take a picture of you, that picture is born copyrighted by you, not by me. With that law the first amendment would not be implicated, nor would (or should) the photographer’s intent make any difference.

    1. Is permission of the copyright holder required in order to use something as evidence in a court case?

    2. With that law the first amendment would not be implicated

      Since such a law would seem to make a great deal of photojournalism effectively impossible, I’m not sure I agree.

      1. Such a law would also be of great service to the police officers who dislike members of the public recording their activities.

      2. Also, I’m not sure how such a rule would help resolve this case: Ms. Radack is both the photographer and the subject of these pictures.

    3. jdgalt1: How would that work for news photographs? A TV station is shooting a scene at the beach, or someone leaving a courtroom — would they be infringing the copyright of the people who are being depicted.

      And if your answer is, “No, because news uses are fair uses and are thus excluded from copyright law, while porn uses aren’t fair uses and are thus not excluded,” then is your solution really much simpler, given that it still requires the law to distinguish lawful kinds of uses from unlawful ones?

      Finally, as to intent, the owners of the typical nonconsensual porn web site (as opposed to some of its users) probably don’t have an intent to coerce, harass, or intimidate, at least in the strict sense of a deliberate purpose. They probably just have a purpose to make money, or perhaps to tittilate.

    4. Wouldn’t that law violate the First Amendment? Wouldn’t it permit politicians to bar unflattering photos of themselves, even if taken in the public arena?

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