Punishing Revenge Porn as (Federal) Criminal Libel

It doesn't always work, but it worked on the facts of this case.

From U.S. v. Uhlenbrock, decided Tuesday by Fifth Circuit Judge Jerry Smith, joined by Judges Carl Stewart and Kyle Duncan:

A jury convicted Mark Uhlenbrock of violating 18 U.S.C. § 2261A-(2)(B) for publishing [on Reddit] his ex-girlfriend's nude images and videos and exhibitionist and masturbatory stories that he wrote in her name…. Some of [the] images she had voluntarily sent to him during their romantic relationship, but some he surreptitiously recorded. She never allowed him to share any of the media or to post it online.

Accompanying those pictures and videos, Uhlenbrock shared stories that he drafted in the first-person using YT's maiden name. They further identified her by occupation, employer, and state of residence. Writing as YT, he claimed to be an "addicted" "exhibitionist." For example, he stated, "I am a real US Airline flight attendant…. Here, I share clothed to naked pics, 'G' and 'R' rated home videos and erotic stories that you can read about my exhibitionist fantasies." Another post read, "I enjoy stripping nude and masturbating for men I meet on my layovers. It's my favorite way of sexually expressing and satisfying myself." He invited men to look for YT on their flights and sexually to proposition her….

A grand jury indicted Uhlenbrock on one count of cyberstalking under 18 U.S.C. § 2261A(2)(B), which states, in relevant part,

Whoever … with the intent to … harass[ ] [or] intimidate … engage[s] in a course of conduct that … causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress to a person … shall be punished as provided ….

A jury convicted Uhlenbrock, and the district court sentenced him to 60 months' imprisonment, three years' supervised release, and restitution….

The court concluded that Uhlenbrock could be punished under the cyberstalking statute because his speech fit within a First Amendment exception—in this case, defamation:

Uhlenbrock's speech was [knowingly] false. He claimed that YT had authored his internet posts, though she had not. He wrote, for example, "I am a real US Airline flight attendant…. Here, I share clothed to naked pics, 'G' and 'R' rated home videos and erotic stories that you can read about my exhibitionist fantasies."

He also falsely called her an "addicted" "exhibitionist." YT testified that, upon discovering her naked photos and videos online in 2007, she was "humiliated and embarrassed by this and fearful that [she] would be discovered." She said that, after court proceedings following his 2016 conviction for the same conduct, she "wanted to kill [her]self to make this go away." And after she discovered his 2020 posts, she felt "instant fear and disgust that opened that wound again." She became "reclusive and paranoid" and "hid[ ] out under a baseball hat." That is not the reaction of an addicted exhibitionist.

Uhlenbrock's speech was also "defamatory." He "impute[d] … unchastity" to YT by conveying that she freely shared her naked pictures and videos with the internet, inviting men to look for her when they flew, and suggesting that she would strip and masturbate for them….

The court rejected Uhlenbrock's vagueness challenge to § 2261A(2)(B):

"[S]ubstantial emotional distress" is an "easily understood term[ ]." A familiar term from tort law, "[e]motional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and nausea."

So is the term "reasonably expected." Indeed, we have explained that potential vagueness is not created but, instead, "constitutionally remedied" "by the inclusion of [a] reasonable person standard."

Under those definitions, § 2261A(2)(B) "clearly proscribed" Uhlenbrock's conduct. He posted YT's nude photographs and videos, after she had gone to great lengths to stop him from posting. Those photos and videos—some of which he captured without her permission—exposed her breasts, vagina, and buttocks in sexually charged poses. Some showed her masturbating. Her face was visible in most. Alongside those pictures and videos, he appended stories that invited men to look for her when they flew, suggesting that she would strip and masturbate for them if they winked at her.

That conduct alone would be "reasonably expected" to cause YT to experience "substantial emotional distress." But he also identified her to the world by signing the posts with her real maiden name, real occupation, real employer, and real state of residence. It beggars belief that, by using YT's maiden name, he "effectively eliminat[ed] the possibility" that she would discover his posts and, thus, experience any distress. Again, as Uhlenbrock acknowledges, YT's family friend found his posts, identified YT in them, and alerted her to them.

Because § 2261A(2)(B) "clearly proscribed" Uhlenbrock's conduct, he "cannot complain of the vagueness of the law as applied to the conduct of others."

The court also concluded the jury had sufficient evidence to find that Uhlenbrock
"intended to harass or intimidate YT":

The jury had sufficient evidence to conclude that Uhlenbrock intended to harass or intimidate YT. Each time he had posted her nude media in prior years, she discovered it. A rational jury could conclude that he expected that she would also learn about his 2020 Reddit posts. Likewise, because he knew the "humiliation" and "fear" that she had suffered in past years, a rational jury could conclude that he expected to cause the same result this time, too. The jury could thus conclude that he intended "to disturb [YT] persistently; torment, as with troubles or cares; bother continually; pester; persecute" her or "to make timid" or "fill [her] with fear."

A rational jury could also conclude that he intended to harass her by sending strange men to find her. He invited readers to "keep an eye out for [YT] when" flying on her airline. "Who knows where a suggestive wink will lead. You could get a sexy strip tease from a pretty Latina flight attendant who, after an erotic nude dance, will lie back, spread her legs …."

Resisting that conclusion, Uhlenbrock says that his posts "were not directed to YT; they were posted in a [forum] that the alleged victim only found out about when a close family friend provided a link." But the question is "whether any rational trier of fact could have found" the requisite intent "beyond a reasonable doubt." The answer is yes….

And the court concluded the jury had sufficient evidence to find that Uhlenbrock's "conduct was 'reasonably expected' to cause substantial emotional distress" or did cause such distress:

[A] rational jury could conclude that Uhlenbrock's conduct was "reasonably expected to cause" such distress to YT. As we have recounted several times already, Uhlenbrock published her nude photographs, masturbation videos, and exhibitionist fantasies to internet forums. He signed them with her maiden name and told readers her occupation and employer. He invited men to look for her when they flew. People could link the posts to YT; she found out about them from a family friend.

Regardless, a rational jury had enough evidence also to conclude that Uhlenbrock's conduct "cause[d] … substantial emotional distress." When YT saw the 2020 posts, she "immediately started searching" for them and "spent eight, nine hours a day scouring the internet to find these images to see how bad this was going to be again." Seeing the pictures brought her "instant fear and disgust." She "feared for [her] safety" because her "private and personal information was in these pornographic stories and [she] feared that anyone who could see these could find [her] at home or at [work]." She "became very reclusive and paranoid," covering her face "under a baseball hat" and "not wearing any make-up." "Overprotect[ing] her grandchildren," she controlled what they could wear and who could photograph them. The posts disturbed her so much that she contacted the FBI.

Note that this particular theory worked only because the posts suggested that YT had posted the items herself. If Uhlenbrock had made clear that he was the one posting the images and stories, without YT's approval (and that the stories were fictional and thus didn't accurately describe YT's fantasies), there wouldn't be any false statement. Perhaps the material might then still be punishable on some other theory, but not a defamation theory.

Note also how the federal cyberstalking statute—which, to oversimplify slightly, essentially criminalizes communications (at least those that fall within a First Amendment exception) that fit within the intentional infliction of emotional distress tort—is being used as a form of federal criminal libel statute. Some state harassment statutes are likewise being used to revive criminal libel law, even in states that have generally repealed criminal libel (see the closing paragraph of this post).

This yields what strikes me as a good result in this revenge porn case. But keep in mind that § 2261A is by no means limited to revenge porn, and can be used for other repeated libels that are seen as "inten[ded] to … harass" and that "cause[], attempts to cause[], or would be reasonably expected to cause substantial emotional distress" (as libels often would); see, e.g., U.S. v. Morris (E.D.N.C. 2023); U.S. v. Sergentakis (3d Cir. 2019); U.S. v. Gonzalez (8th Cir. 2018); U.S. v. Sayer (D. Me. 2012). That might be good or bad, depending on what you think about criminal punishments for libel; but I think it hasn't drawn as much attention as it should.

Elizabeth Berenguer and Joseph H. Gay, Jr. represent the government.

UPDATE: The discussion of falsity in the "Note that" paragraph above was originally imprecise (I was focused on the posting of the photos, rather than the text); I've corrected it. Thanks to commenter ReaderY for alerting me to this.

Comments

[John F. Carr]

"He also falsely called her an 'addicted' 'exhibitionist.'"

Did the government have the burden of proving she was not an addicted exhibitionist?

[ReaderY]

Yes. Since this was a criminal conviction, the government had the burden of proving the statements were defamatory, including both proving they were false and that they damaged her reputation, beyond a reasonable doubt.

The judge here found that the government had met its burden of proof. I suspect her testimony went a long way towards doing that.

[TwelveInchPianist]

"The judge here found that the government had met its burden of proof. I suspect her testimony went a long way towards doing that."

I'm not sure how probative her testimony is though, I mean, most people would deny these claims whether they were true or not.

This question often comes up in cases where there is a single uncorroborated eyewitness and a defendant denial, it's kind of the opposite here.

As a juror, I'd be happy to infer that the allegations of exhibitionism, etc are false based on low baseline rates for such behavior, plus questionable motivations of the ex.

[ReaderY]

This woman is an airline stewardess. As a result of this man posting that she is a nymphomaniac, likes having random sex with airline passengers, etc. etc. etc., strange men repeatedly came up to her solicited her for sex at work, sometimes in graphic terms.

You really think an American jury is going to have a hard time believing her when she said she found this harassing?

[ReaderY]

I disagree with Professor Volokh’s assessment. Even if he hadn’t posted them in her name, claiming she was an exhibitionist, a nymphomaniac, liked to have random sexual encounters with male flight passengers, etc., would all be defamatory and not protected by the First Amendment. The claim the posts were written by her was far from the only false factual statement made.

[David Nieporent]

I agree with ReaderY, but the post made me wonder about the opposite fact pattern: what if the underlying claims were true, and the only false thing the guy said was that she was the one posting it? Is that, by itself, sufficient to be defamation?

[Eugene Volokh]

Whoops, sorry; I was focusing on the images, and should have also discussed what it would take to keep the text from being defamatory. I've revised that paragraph accordingly; thanks for pointing this out!

[ReaderY]

Also, there is another difference from ordinary repeated defamation. The judge said the jury could reasonably find the posts were intended to encourage men to approach her and solicit her for sex, and she testified that this actually happened. This means this case isn’t just about repeated defamation. It’s about stalking in the ordinary sense of repeated harassment done in person. The fact the defendant solicited others to harass her rather than doing it himself doesn’t absolve him of responsibility for the in-person harassment that actually occurred.

Indeed, I suspect this case could have proceeded on the crime-facilitation speech exception separately from defamation.

Consider, as a hypothetical, an even stronger case where he posts “I really like to be raped by strangers. Don’t listen to me if I tell you to stop. I love it.”

If someone raped her after he did this, he would be liable for rape, or at least solicitation or attempt to commit rape, under an appropriately worded statute. And there would be no First Amendment problem with such a conviction.

[Stupid Government Tricks]

IANAL, and this makes me curious. Have there been other cases where solicitation to stalk, or to rape, have resulted in convictions? It seems reasonable and just to me, although the barrier to conviction would be higher.

[Gasman]

Quick google reveals that he is much older than I would have guessed, now age 70; I imagined this is more the act of someone in their 40's-50's.
Newspapers report he is a St. Louis resident, so quick search of tax records shows his condo. Anyone on the globe can look that up at the county tax web site.
Curiously, his listed corresponding mailing address on the tax site is the town of Labadie, where the Missouri Eastern Correctional Facility is located. Good for him keeping up with his tax commitments.

[jdgalt1]

Punishing speech because it "causes emotional distress" is the dangerous beginning of a slippery slope and ought to be categorically overturned. Distress is not damage or harm. The proper remedy for someone making fun of you is to make fun of them.

This goes for civil libel cases such as Carol Burnett v. National Enquirer, too. (She proved that defendants lied about her, but could show no damages except being upset. I would have awarded her $1 and sent her home.)

[David Nieporent]

The proper remedy for someone making fun of you

Is there a reason why you would describe the actions of the defendant in this case as "making fun of" his victim?

[ReaderY]

You really don’t think a women is damaged or harmed if strange men repeatedly come up to her and solicit her for sex because somebody falsely posts that she’s a nymphomaniac and encourages strangers to approach her?

This kind of behavior has long been recognized as way outside the protection of the First Amendment.

I think trying to defend this guy makes First Amendment absolutism look really, really bad.

[not guilty]

I haven't read the opinion, but from the description I can see where defamation would lie here. With the juxtaposition of pornographic images and text the accused falsely (I assume) portrayed the woman as unchaste and of easy virtue.

The photos alone could not be defamatory. Nudity per se is not capable of being true or false. Invasion of privacy would be a more viable tort theory, either publication of private matters or portrayal of the subject in a false light.

I do however recall reading several years ago about women who had posed nude for Playboy having sued when those images appeared surreptitiously in Hustler. The theory was that a woman who would pose for Hustler is lower class than a woman who would pose for Playboy.

[ReaderY]

I would look at this one from a more contemporary perspective. The women works as an airline stewardess. This man’s posts encouraged men flying on her flights to come up to her and try to have sex with her, resulting in her repeatedly getting solicited for sex and harassed by strange men.

That has nothing at all to do with whether or not she was “chaste” or “virtuous” in any traditional sense. This case really is fundamentally about soliciting harassment. The defamation is only incidental to the gravamen of the offense.

[ReaderY]

As mentioned in my comments above, I think Professor Volokh was wrong in describing this case as a “criminal libel” case that was prosecuted as a harassment case because the harassment statute was worded broadly enough to cover libel.

This is a genuine harassment case. This man wrote posts in this woman’s name claiming she was a nymphomaniac and wanted sexual encounters with random men, and encouraging men to approach her for sex. As a result of these posts, this woman, who worked as an airline stewardess, was repeatedly approached, at work and in public, by male passengers who wanted sex with her.

Repeated unwanted graphic in-person solicitiation for sex is harassment in a very ordinary sense of the word.

While the posts were indeed libelous, I think the judge here would have better analyzed the constitutionality of the conviction under the crime-facilitation speech exception to the First Amendment, not the libel exception. The gravamen of the offense was intentionally soliciting others to harass this woman. That’s classic crime-facilitating speech. Harassment, not libel, really was the central crime here.

The situation is the opposite of the way Professor Volokh described it. The judge here used the libel exception to the First Amendment to uphold a conviction for what was essentially harassment under a very narrow and ordinary definition because the harassment was incidentally libelous. That’s the exact opposite of what Professor Volokh claimed he did, use a broadly (perhaps overly broadly) worded harassment statute to punish what was essentially libel because the libel was incidentally harassing.

The harassment consisted of the men solicitiing her for sex that the post intentionally precipitated, not the post itself. I think Professor Volokh, by failing to see this, grossly misrepresented what this case was about.

[ReaderY]

It’s not too difficult to come up with a similar criminal solicitation that ISN’T incidentally libelous. If for example he had posted in her name that she was tired of her house and didn’t want to have anything to do with it any more, gave out the combination to her lock and told people they could just enter and take anything they wanted, this would pretty clearly be solicitation to commit theft and perhaps theft proper in some jurisdictions. But I don’t think there would be anything particularly damaging to her professional reputation about such a post.