The Volokh Conspiracy
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Texas High Court Upholds Revenge Porn Statute,
by limiting it to exclude people who sincerely believed the material wasn't revenge porn (i.e., the participants had agreed that it be publicly released).
In today's Ex Parte Jones, the Texas Court of Criminal Appeals (the state's highest court for criminal matters) upheld the state nonconsensual porn statute, because it concluded that the statute applied only to people who knew the material they were distributing was being distributed without the participants' consent (or were knew that this was very likely, which is to say they were "reckless" about the absence of consent). The opinion was released as "unpublished," which is to say as it has "no precedential value and must not be cited as authority by counsel or by a court." (That likely happened in part because likely because the opinion dealt with a version of the statute that is no longer in effect.) Nonetheless, I expect it to be influential with Texas prosecutors and judges, and likely outside the state as well.
First, the relevant statute, which is the 2017 version of Penal Code Section 21.16(b):
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
"Intimate parts" means "the naked genitals, pubic area, anus, buttocks, or female nipple of a person." "Sexual conduct" means "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse." "Visual material" includes "any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide;" or "any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method."
The court held that the statute was content-based, and was therefore subject to strict scrutiny; but it passed such scrutiny, because it was properly construed as requiring a "culpable mental state of knowledge or recklessness" as to each of the elements. (A lower court had struck it down, on the grounds that it created a strict liability crime.) Here's the court's analysis:
Under a strict scrutiny analysis, a regulation is justified only if it is narrowly tailored to serve a compelling government interest…. If a less restrictive means of meeting the compelling interest could be at least as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law in question does not satisfy strict scrutiny.
We agree with the State that the privacy interest in the statute is a compelling government interest. First, privacy in general has been recognized and protected by our common law, statutory law, and Constitution. And particularly, the interest in sexual privacy is substantial. Sexual behavior is "the most private human conduct[.]" Violations of sexual privacy are intrinsically harmful because sex is inherently private. The consequences of violations of sexual privacy can be serious and include harassment, job loss, and suicide. Victims of revenge porn cannot counterspeak their way out of a violation of their most private affairs and bodily autonomy nor the serious harms that may accompany that violation. The Legislature recognized the severity of these harms and passed this law to protect against them.
Second, disclosing visual material when the depicted person reasonably expected it would remain private is an intolerable invasion of privacy, especially when the visual material shows the depicted person's intimate parts or sexual conduct….
We find that the statute, under this construction, is narrowly tailored—i.e., it is the least-restrictive means of serving the government's compelling interest in protecting sexual privacy.
First, in addition to the requirement that the disclosure be intentional, the lack-of-consent element narrows the statute's reach to an actor who intentionally discloses visual material despite knowing or being aware of a substantial and unjustifiable risk that the depicted person did not effectively consent to the disclosure. In those cases, the actor has, at the very least, some objective fair warning that the sensitive and potentially harmful speech he is about to utter is contrary to the wishes of the person who might be harmed by it. Providing criminal penalties for speech made in disregard of this fair warning is a narrowly tailored means to deter that speech—and only that speech—thereby vindicating, to the greatest extent constitutionally permissible, the depicted person's expectation of privacy.
Second, the expectation-of-privacy element further narrows the scope of the statute, even without an express culpable mental state, because (1) the reasonable expectation of privacy requirement provides adequate protection; and (2) as a practical matter, the evidence needed to prove the circumstances under which the defendant obtained the material would necessarily satisfy a culpable mental state of knowledge. And, when this element is read with the lack-of-consent element, the statute only punishes those who knew or were aware of but consciously disregarded a substantial and unjustifiable risk that the circumstances giving rise to the depicted person's reasonable expectation that the material would be private.
Third, the identification element narrows the statute's reach to those who knowingly or recklessly reveal the identity of the depicted person through disclosure. Such a requirement means that a person could intentionally disclose visual material otherwise prohibited by the statute if the depicted person is not identified or identifiable by future recipients. But we reiterate that, because of the language in his indictment and how we construed the statute above, Appellant cannot be convicted for disclosure of a photograph whose subject was identified by a third party. Consequently, the statute, as it is charged here, is narrowly tailored to address—and punish—only the people who were in intimate relationships and then vengefully circulated intimate visual material.
We acknowledge that those who receive intimate photos and forward them to others without knowing the disclosure lacks effective consent fall outside the statute's narrowed scope. However, the subjects of such material are not wholly without protection in those circumstances. Copyright law can provide an adequate vehicle for curbing these third-party disclosures. This body of law protects original works of authorship fixed in any tangible medium of expression, including photographs. An author of an original work "gains 'exclusive rights' in her work immediately upon the work's creation, including rights of reproduction, distribution, and display."
If copyright law applies and no exceptions [such as fair use] are implicated, a third-party consumer of a "revenge porn" photograph could be subject to copyright infringement because they are not the copyright holder. {In cases where the revenge porn image is a "selfie," the subject taking the photo of herself is the copyright holder. And in the remaining cases—i.e., where the photograph was taken by someone other than the subject—the photographer would be the copyright holder. In either scenario, the later consumer cannot be the copyright holder.} Further, copyright law also provides a legal avenues for the victim of "revenge porn" to stop the third-party spread of their intimate visual material.
Lastly, the alternatives offered by Appellant are not as effective in achieving the government's compelling interests. First, Appellant points to civil liability as a less-restrictive means of achieving the governmental interest here. This is unpersuasive because a civil remedy, though less heavy-handed, is also generally less effective than a criminal remedy. Furthermore, if this argument were valid, no criminal statute could ever touch speech. But the Supreme Court has not struck criminal statutes on that summary basis, instead analyzing them under conventional First Amendment doctrines.
Second, Appellant offers elements found in Texas tort law or in similar criminal statutes from other jurisdictions. For example, he recommends requiring the elements "physical intrusion or a wiretap." But these requirements would not address the harm that the statute was intended to address since intimate visual material is often supplied by the depicted person or created with his cooperation and consent. Appellant also suggests requiring an element like "highly offensive to a reasonable person." But "highly offensive to a reasonable person" is essentially encompassed in an obscenity determination, and we have already said that material regulated by Section 21.16(b) is non-obscene.
Next, Appellant suggests requiring an element that the material is not of "legitimate public concern," thereby excluding material that is a matter of public concern from the scope of the statute. Speech deals with "matters of public concern" (1) when it can "be fairly considered as relating to any matter of political, social, or other concern to the community;" or (2) when it "is a subject of legitimate news interest," i.e., a subject of general interest and of value and concern to the public. It is unclear whether a sexual image depicting a public official is a "matter of public concern." But even if it is, the objective aspect of the expectation-of-privacy element includes the idea that public matters are given special protection. Sexual material dealing with "matters of public concern" would not be something a person could reasonably expect to remain private. Therefore, a defendant who discloses such matters would fall outside of the statute's scope.
{Appellant and amici point to works of art and images that may be relevant to public discourse as evidence of Section 21.16(b)'s overbreadth. But there is no evidence that people who willingly participate in the creation of sexually explicit art commonly do so with any reasonable expectation of privacy, and the likelihood seems remote. Consequently, Section 21.16(b) is unlikely to chill such speech. As for images relevant to public discourse, it is doubtful that the non-consensual disclosure of sexually explicit material would be relevant to public discourse, and even if it were, there is no evidence that this would often be the case. Thus, in instances of artistic endeavors and images relevant to public discourse, as-applied challenges would be more appropriate than facial challenges. Therefore, we reject Appellant's overbreadth challenge.}
Further, Appellant argues that punishing only intentional, serious harm, rather than merely "harm," would be a less-restrictive means. That would likely make the law less restrictive, but it would also not address the governmental interest in preventing the intrinsic harm from violations of bodily and sexual privacy….
In summary, there is no way to adequately prevent the harm from disclosure of intimate material without restricting the disclosure of intimate material….
Justice Yeary, joined by Presiding Justice Keller, concurred; they would have applied intermediate scrutiny, on the theory that the law targets not the "content" of the speech but its "secondary effects":
The justification for Section 21.16(b) has nothing to do with whatever value non-obscene pornography may have as expressive activity, and everything to do with the potentially devastating secondary effect that disclosure of sexually explicit material may have upon the non-consenting person depicted therein. It is not a regulation "that focus[es] on the direct impact of speech on its audience …." Rather, it focuses on the direct impact that the disclosure will have on the non-consenting person depicted in the visual material.
The majority disagreed, I think correctly on this point:
Moreover, the statute cannot be saved as a content-neutral time, place, and manner restriction or under an analysis of its secondary effects. The justification for the statute is to prevent the harm that results from having intimate images of oneself shared without one's consent. We cannot say that this has nothing to do with content. The sexually explicit nature of the images is inextricable from the regulation; the harm results from the intimate nature of the content.
The concurring justices said that they would have released the Court's opinion as binding precedent.
