Is California's Revenge-Porn Statute Constitutional?

 Posted on October 17, 2013 in Uncategorized

I've discussed Mary Anne Franks's proposed state statute criminalizing revenge porn and New Jersey's statute criminalizing revenge porn, and concluded that under current Supreme Court caselaw appellate courts will be constrained, in the face of a serious First Amendment challenge, to invalidate both as unconstitutional restrictions on free speech.

What about California's statute, which was more recently signed into law? According to that statute, misdemeanor disorderly conduct is committed by:

Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

Frankly, that's weak sauce, ((Even if I thought revenge porn could be criminalized without violating free-speech principles, I wouldn't be happy with California's statute.)) especially compared to an earlier draft proposal:

Every person who, with the intent to cause substantial emotional distress or humiliation, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

The California statute has something that Franks's proposed statute and the New Jersey statute lack: a requirement that the defendant intend to cause harm (and in fact cause harm) by his publication of the images. Franks's proposed statute requires only publication "under cir­cum­stances in which the per­son has a rea­son­able expec­ta­tion of pri­vacy"; New Jersey's requires only that the defendant "know[] that he is not licensed or priv­i­leged" to publish. Both would criminalize publication of images even if the subject of the images did not object to the publication.

So the California statute, in its requirements of an intent to cause harm and actual harm caused, has an advantage over the Franks and New Jersey statutes. Is that enough to save the California statute from unconstitutionality?

Since the California statute, like the New Jersey statute and the Franks statute and the Texas statute (and, in truth, any statute targeting revenge porn) is a content-based restriction on speech (that is, you violate the statute by publishing private images of intimate, but not of non-intimate body parts), it is presumptively invalid, and it fails unless it can be shown to fall within some long-established category of unprotected speech.

The recognized categories of protected speech are obscenity, defamation, incitation, and speech integral to criminal conduct.

Speech that violates California's revenge-porn statute is not obscenity, defamation, or incitation. But is it integral to the criminal conduct of intentionally causing serious emotional distress?

That's a trick question. "Intentionally causing serious emotional distress" is not a crime.

Could it be?

The U.S. Supreme Court has explic­itly affirmed the pro­tected sta­tus of embar­rass­ing speech, ((See NAACP v. Clai­borne Hard­ware Co., 458 U.S. 886, 910 (1982) ("Speech does not lose its pro­tected char­ac­ter... sim­ply because it may embar­rass oth­ers or coerce them into action."))) annoy­ing speech, ((Nor­well v. Cincin­nati, 414 U.S. 14 (1973).)) and offen­sive speech. ((Carey v. Pop­u­la­tion Ser­vices Int'l, 431 U.S. 678, 701 (1977).))

The Supreme Court has not similarly affirmed that the First Amendment protects speech that is intended to cause and causes serious emotional distress...except in the context of a suit by a public figure (Jerry Falwell) over emotional distress intentionally inflicted by a publisher (Hustler Magazine). In Hustler Magazine v. Falwell in 1988 the Court held that the a public figure could not recover for serious emotional distress intentionally caused by the magazine's patently untrue statements.

Could a state criminally sanction intentionally causing serious emotional distress to someone who is not a public figure?

If the state can't allow a public figure to recover damages for serious emotional distress (absent falsity or something more), it surely can't criminally prosecute the person causing the serious emotional distress to the public figure (absent falsity or something more)-when the stakes are conviction and imprisonment, the standards can't be lower than when people are fighting over money.

The criminal law does not distinguish between public and private figures. So, to complete the syllogism, if the state can't prosecute a person for causing serious emotional distress to a public figure, it can't prosecute a person for causing serious emotional distress to a private person.

This is an answer both to the question, "does the element of causing serious emotional distress make any difference" and the question, "is the speech that California would forbid integral to criminal conduct?"