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.