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.

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.