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"Revenge Porn" in Virginia: New Law, First Case, Lots of Questions…

A woman from Augusta County was charged with violating Virginia’s new law against so-called “revenge porn.”  Virginian-Pilot Article.

This story begins like a garden-variety relationship dispute: A woman sent a nude photo of herself to a man. (One may safely assume she was attempting to signify her interest in an amorous relationship.) Unfortunately, the man’s girlfriend found the nude photo on his phone. Then, the story takes a twist… Rather than resort to physical violence or destruction of personal property (the normal outcome of a story like this), the girlfriend posted the nude photo on Facebook. 

Now, the girlfriend is the first person to be charged with violating Virginia’s new law against “revenge porn.” 

The new law is Virginia Code §18.2-386.2. In pertinent part, it reads:

Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor…

A few preliminary comments and observations:

1) Revenge porn is despicable. I am not attempting to excuse or condone the behavior.

2) “Maliciously disseminates…” ???

How does a court distinguish between malicious dissemination and non-malicious dissemination? What if the dissemination was merely with great disdain, but not quite full-blown malice? I know what it looks like to maliciously wound someone. I can point to examples of malicious intent in assault or homicide. I am not nearly as clear on how to recognize malicious dissemination.

3) This law raises some serious First Amendment concerns.

You will notice that the law purports to criminalize only the “malicious dissemination” of the photo. This is a not-too-clever attempt to withstand First Amendment scrutiny.

Over the years, courts have distinguished between laws that regulate speech and laws that regulate conduct. For a number of reasons, laws that regulate speech rarely survive First Amendment challenges.

In response, legislatures (including the Virginia General Assembly) have attempted to draft criminal statutes in narrow terms to only regulate specific conduct.

A good example of this can be found in §18.2-429(A)

That code section prohibits causing a phone to ring with the intent to annoy another person. A typical example is where someone calls a phone number hundreds of times within a short period of time, usually with plenty of additional evidence of an intent to annoy. The law does not regulate speech. It only regulates the conduct—ringing a phone with intent to annoy. Thus far, Virginia trial courts have found no fault with this law on First Amendment grounds. (I am unaware of any appellate decisions that directly address this issue.)

In the new law against “revenge porn,” the statute purports to prohibit “dissemination.” This is an obvious attempt to proscribe the conduct, only, and to leave untouched any instances of speech. I think this is problematic because the term “dissemination” necessarily implicates speech. Speech, in any form, is the dissemination of information. Whether it is malicious or not, it is still speech.

What if, instead of proscribing the “dissemination” of a nude photo, the statute prohibited the “sharing of information that conveys a person’s appearance”? That language would clearly regulate speech; no one could reasonably contend otherwise.

Trying to distinguish between “dissemination” and “speech,” is making a distinction without a difference.  

With very few exceptions (e.g., threats of violence), private speech is almost always protected under the First Amendment. This is so regardless of whether the speech includes an intent to “coerce, harass, or intimidate” and regardless of whether the speech was “malicious” (whatever that means).

A hypothetical example interposed on real-world headlines: When Anthony Weiner stumbled into the national spotlight, it was because of his infamous sexting scandal. Let us suppose that a concerned citizen was outraged that a United States Congressman would engage in such reckless behavior. In response, the citizen emailed a copy of one of the public photos to his friends saying, “Can you believe this clown is a U.S. Congressman? Let’s make it our mission to coerce, harass, and intimidate this clown into resigning his office by spreading this email to as many people as possible! Let’s make it so this guy can never hold another job for the rest of his life."

Under Virginia Code §18.2-386.2, that email would be illegal. That is a problem, because that email is constitutionally protected speech under the First Amendment. 

4) “Where such person knows or has reason to know that he is not licensed or authorized to disseminate…”

It is 2014. Everyone knows that once something is transmitted digitally, whether by computer or phone, it can never be completely erased. It is extremely unlikely that this photo contained a caption or disclaimer that warned against unauthorized distribution. (That would be more along the lines of a copyright infringement case.) 

Therefore, the Commonwealth must prove, beyond a reasonable doubt, that the defendant “knew or had reason to know” that the “victim” did not consent to the distribution of the photo. How was the defendant supposed to know that the “victim” did not want the photo shared? If the “victim” was all that concerned with the distribution of her nude photo, why did she send it to another man’s phone in the first place? Again, everyone knows that digital transmission can never be completely erased. It is not outlandish for the defendant to assume that the “victim” was not all that concerned with further distribution.

Additionally, I do not believe that it is possible to start with a presumption that the dissemination was unauthorized. Stated differently: it is not possible for the court to assume, from the beginning, that all dissemination is unauthorized until proven otherwise. To do so would, in effect, shift the burden of proof to the defendant. The defendant would then be required to prove that she was, in fact, authorized to share the photo. In our criminal justice system, the burden of proof must always remain on the Commonwealth.

Granted, it may be possible for the Commonwealth to produce evidence that the defendant “knew or should have known” otherwise. The defendant may have made incriminating statements to law enforcement. There may be other evidence that would indicate that she knew that the “victim” did not consent to further distribution. Regardless, the Commonwealth must produce that evidence to carry their burden of proof.

It will be very interesting to watch this case and any others after it. I think the First Amendment challenges will prove to be the most problematic to this particular statute, but it may take some time for the courts to address all of the issues involved.

Our society is founded on principals of individual liberty and limited government. As a society, we protect our rights, as a whole, by protecting the rights of each individual. 

If you find yourself dealing with Code §18.2-386.2 or any other criminal charge, contact my office for a free consultation.

Call today: (757) 333-7529.

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