Texas Revenge Porn Laws Loses Battle With First Amendment
from the do-it-right-or-you-might-as-well-not-do-it-at-all dept
Texas attorney Mark Bennett -- instrumental in getting an unconstitutional "peeping tom" law tossed in 2014 -- has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It's not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It's that there's plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.
Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court's finding the law was First Amendment-compliant.
As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.
In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.
As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas' law cannot hold up to this level of scrutiny. From the decision [PDF]:
In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.
The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court's help and, further than that, courts need a jury's help to determine whether or not disputed content is actually obscene.
Then it points out the obvious flaw in this argument -- one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.
Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.
Having dispensed with the state's attempts to salvage a redundant law, the court gives it this send off -- a light kick to ass of legislators and the state's legal counsel: DO BETTER.
At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.
Once again, it's not that revenge porn should be ignored. It's that it's almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors' desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.
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Filed Under: constitution, first amendment, mark bennett, revenge porn, texas
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copyright strategy
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Re: copyright strategy
Better to just use existing criminal laws. Lots of revenge porn sites and distributors continue to break laws already on the books (extortion, stalking, hacking). Use those instead.
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Re: Re: copyright strategy
Giving a judge the ability to assign copyright only as a result of a lawsuit could be reasonable here.
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Re: copyright strategy
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Re: copyright strategy
If the states do it, it Is impossible under 17 USC 201(e).
If it gets over that hurdle, then it’s eminent domain in which the property is conveyed to a third party, so if states are doing this, it’s illegal under various states’ anti-Kelo laws. And if it is okay, then the state government has to pay fair market value to the prior rightsholder — so it could be fairly profitable and encourage revenge porn. (Since there’s no infringement prior to the forced sale)
Do we really want the government to literally be smut peddlers?
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Re: Re: copyright strategy
I could see them getting away with $1 to use Eminent Domain.
Your solution is more reasonable, this needs a national law, perhaps empowering small claims courts to cover situations where:
- Hosts demand payment for image removal
- Image owners intend to cause damage to the reputation of the person in the image (Or cause real damage)
- The image is of a private nature, taken in a private place
Of course a reasonable test is not something I would expect from law makers.
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Re: Re: Re: copyright strategy
Also I generally dislike small claims courts — I don’t think they usually do a good job — so I would probably never suggest sending any class of cases, particularly ones that strongly implicate the first amendment, copyright, and defamation, to them.
Frankly this whole thing smacks of truthful defamation from way back — where the law protected undeserved reputations — and I am not convinced the victims of revenge porn merit special protection beyond usual defamation or invasion of privacy claims. If you’re aware that someone is taking salacious photos of you and you are okay with it because you’re in a romantic relationship, more fool you, I think.
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Punish for what? Under what law?
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Of course they can choose a no removal policy to get around this, but that cuts off funding for the sites. That's been the problem, right now there is no reasonable law when someone wants to ruin someones life and has no profit motive.
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Again, certain stuff is blatantly illegal.
Tzar Peter and General Sherman would have both been jealous.
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Often there are cases where the leaker shouldn't be the only liable party, the site providing the leaked photos should be too. While you're right and some sites may have user-uploaded photos that they have no way of knowing are revenge porn, some sites market themselves as revenge porn sites, explicitly solicit user submissions of revenge porn, and some have even been run as protection rackets where they offer victims of revenge porn a chance to remove the photos for a fee. Remember Craig Brittain?
I think it's perfectly reasonable to go after sites of that type and their owners, and can be done in a way that's consistent with the First Amendment -- but this requires laws that are narrowly and specifically tailored. Unfortunately, a number of the "revenge porn" laws passed so far have been like this one: overbroad to the point of infringing on protected speech.
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But, if they hadn't put up those "give us money to take the photos down" mechanisms, their revenge porn sites would likely have been legal.
I don't think that a narrowly-tailored law saying you can't post pornographic photos of a person without their consent (and for the explicitly stated purpose of revenge) would run afoul of the First Amendment. There are states that have passed revenge porn laws that haven't been challenged on free speech grounds.
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Many of the photos people complain are just nude photos but not pornographic.
How often do people explicitly state they're doing it for revenge?
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There is no time to carefully craft a law, we have to throw something together to get the coverage for the 5 o'clock news.
Its not helped by people who will claim Mark Bennett supports & loves revenge porn because he cares about the 1st Amendment. We are back at the zero sum game of you are with us or against us & who cares if there aren't enough life boats on the ship, we need to support the idea its unsinkable.
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I LIKE REVENGE PORN..
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Re:
I'm not saying that the 1st amendment claims raised by Bennett are not important. I agree with his approach and respect what he's doing. But I think it's misleading to say that the revenge porn problem has been solved by extortion laws because AFAIK that only covers a certain subset of revenge porn cases -- where someone charges money for removal. It doesn't cover any other scenario where someone posts sexually explicit images of someone on the Internet to humiliate them or harass them, and as far as I can tell there's no way to force someone to take down those types of images as long as they don't commit extortion.
Maybe that's just something that we have to accept as a society, but I think that it's sort of unreasonable to just pretend like the problem has already been solved.
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