The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Former California Democratic Congresswomen Katie Hill, whose promising political career unraveled in 2019 after she was accused of inappropriate relationships with staffers and various media outlets published nude and sexually graphic photos of her, said in a lawsuit filed Tuesday that the world is watching her ex-husband's "revenge vendetta."
Hill, who unseated an incumbent Republican as part of the 2018 "blue wave" at the age of 32, claims in the suit filed in Los Angeles that her ex-husband, Kenneth Heslep, orchestrated her political downfall with the right-wing news blog RedState and the British tabloid the Daily Mail after she tried to end their relationship.
You can read the Complaint, but much of it isn't actually the direct basis for the legal claims. Rather, the heart of the argument against the media defendants (I set aside the ex-husband here) is that the Daily Mail and RedState published two nude, insufficiently redacted photos in 2019. These photos—the "Hair Brushing Picture" and the "Water Pipe Picture"—are alleged to violate the California nonconsensual porn statute (Cal. Civ. Code § 1708.85):
(a) A private cause of action lies against a person who intentionally distributes by any means a photograph … [or video recording] … of another, without the other's consent, if
(1) the person knew that the other person had a reasonable expectation that the material would remain private,
(2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and
(3) the other person suffers … damages [including emotional distress damages] ….
(b) "[I]ntimate body part" means any portion of the genitals, and … any portion of [a female's] breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.
(c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances: …
(4) The distributed material constitutes a matter of public concern….
(6) The distributed material was previously distributed by another person.
Here's my quick, tentative analysis of the situation:
[A.] The photos do seem to show, even with the redactions, some "portion of the breast below the top of the areola," and the Complaint plausibly alleges that Hill reasonably expected that the material would remain private.
[B.] But it seems likely that the "distributed material constitutes a matter of public concern": These are photographs of an elected official, illustrating behavior that some voters may see as unethical—intimate involvement with a staffer, and recent use of marijuana (still illegal under federal law) in what appears to be a sexual context, bespeaking a kind of hedonism that at least some voters may view as a character defect.
Many people might not care about such behavior by elected officials, but I think people reasonably might. And because "anything which might touch on an official's fitness for office" is seen as a matter of public concern, the photos should qualify. (One can debate whether courts should decide at all whether something is on a matter of public concern, but First Amendment law does sometimes call for such decisions, and this statute certainly does.)
The Complaint argues that "A written description of the images or the published text messages would have achieved the same goals of disclosing information regarding Plaintiff's personal life. The intimate images merely exposed Hill's nude body to the public for prurient interests and for no other justifiable purpose." But I don't think that's right. Whether or not you think the publication of the images was on balance ethically proper, they conveyed information in a way that was clearer and much less disputable than a "written description" could possibly convey.
Now it may well be that the unredacted depiction of the breast below the top of the areola was not itself necessary for that purpose: A bit more redaction (just blacking out the rest of the breast) would not have changed the public value or effectiveness of the photos.
But the statutory exception applies when "[t]he distributed material constitutes a matter of public concern." "[D]istributed material" appears to refer to "a photograph" that "exposes an intimate body part." The public concern determination would thus be made as to the "photograph" as a whole and not as to any particular portion of the photograph. And this seems consistent with Florida Star v. B.J.F. (1989), where the Court applied the public concern test under the First Amendment by asking whether "the article generally, as opposed to the specific identity [of a rape victim] contained within it, involved a matter of paramount public import."
[C.] Now let's turn to the exception for when "[t]he distributed material was previously distributed by another person." The media defendants allegedly got the material from the ex-husband (Kenneth Heslep), so when they published it, the material had indeed been previously distributed—even if just to them.
The Complaint argues that the Mail and RedState were each the first to make one of the two of the photos "accessible to the general public." But the "previously distributed" exception doesn't on its face seem to be limited to public distribution, and the Complaint itself describes Heslep's sending the material to the media defendants as distribution:
The conspiracy was formed when Defendant Heslep distributed an electronic file containing blackmail material regarding Plaintiff. The file … was distributed to various individuals, including Defendant Messina, as well as to Defendants Does ….
So if I'm right, then the media defendants should win under the "previously distributed" exception. Perhaps a court might read the qualifier "publicly" into the "previously distributed" phrase; but the face of the statute lacks such a qualifier.
[D.] If I'm right that the statute doesn't apply here, at least to the media defendants, then they should be able to get the claim dismissed quickly (and even get their attorney fees paid) under the California anti-SLAPP statute. That statute applies to lawsuits based on speech "in connection with a public issue," and the RedState and Daily Mail publications certainly seem to qualify under that standard. And if a court declines to dismiss the claim, the defendants should be able to immediately appeal that decision.
[E.] I think that, as a First Amendment matter, properly crafted nonconsensual porn statutes are constitutional, and this statute might indeed be narrow enough. (I prefer the term "nonconsensual porn" to "revenge porn," because I don't think the law should be limited to speech motivated by a desire for revenge, and indeed the California law has no such limitation.)
Indeed, the California statute might have been narrow enough even if it didn't have the "previously distributed" exception (or if it had a narrower exception for material that had been previously distributed to the public). It likewise might have been narrow enough even if it had a narrower "public concern" exception, which would apply only if the inclusion of the unredacted depiction of an intimate body part was necessary to effectively communicate important information on a matter of public concern. (Note that there are some other exceptions in the statute for photos of public conduct, and there may need to be similar exceptions as to material in court filings.)
But under the statute as written, I tentatively think that Hill can't prevail. (Thanks to Ken White [Popehat Report] for his help.) There could potentially also be a 47 U.S.C. § 230 defense for the media defendants, but I'll save that discussion for a separate post.