Florida “Revenge Porn” Bill

A Florida bill would ban “knowingly transmit[ting] or post[ing]” to any web site, a “photograph or video that depicts nudity of another person” coupled with “personal identification information” of that other person, “for the purpose of harassing the depicted person or causing others to harass the depicted person.” “Harass” is defined as “to engage in conduct directed at a specific person that is intended to cause substantial emotional distress to such person and serves no legitimate purpose.”

Readers of this blog know that I’m not a fan of laws imposing liability for disclosure of private facts about a person and laws that criminalize saying offensive things about a person. In particular, I think (for reasons discussed in this article) that speech restrictions that exempt speech with a “legitimate purpose” are likely unconstitutionally vague.

But I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts. While I don’t think judges and juries should be able to decide, on a case-by-case basis, which statements about a person aren’t of “legitimate public concern” and can therefore be banned, I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value.

Of course, I can imagine a few situations in which such depictions might contribute to public debates. But those situations are likely to be so rare that the law’s coverage of them wouldn’t make it “substantially” overbroad (even if the “no legitimate purpose” proviso is seen as too vague to exclude those valuable nonconsensual depictions of nudity). Any challenges to the law based on such unusual cases would therefore have to be to the law as applied in a particular case. A facial challenge asking that the law be invalidated in its entirety, based on just these few unconstitutional applications, would not succeed.

I recognize that United States v. Stevens (2010) held that “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” and that First Amendment exceptions be limited to “historic and traditional categories long familiar to the bar,” such as obscenity, defamation, fraud, incitement, and the like, which are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire (1942).

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.