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'Revenge Porn' Becomes Polarizing Legal Issue, Attracting Ample Amicus Briefs

Photo: Shutterstock

The Texas Office of the Attorney General has become the latest to file a string of amicus briefs in a case challenging the constitutionality of a Texas law that criminalizes “revenge porn.”

The term “revenge porn” refers to sexually explicit photos of another person posted online, without the victim’s consent, usually by a former lover meaning to harm or seek revenge.

“Revenge porn can shatter lives, destroy careers and devastate families. Texas has an obligation to bring the perpetrators of these crimes to justice,” Attorney General Ken Paxton said in a statement.

The state appealed the case, Ex Parte Jordan Bartlett Jones, to the Texas Court of Criminal Appeals after the 12th Court of Appeals in Texas declared the law unconstitutionally overbroad and a violation of free speech, and said the trial court should dismiss charges against Jordan Bartlett Jones, who allegedly posted an intimate photo of a woman without consent and was charged with a Class A misdemeanor.

A 2015 Texas law made revenge porn a Class A misdemeanor, then later, the Texas legislature upgraded the offense to state jail felony. The law makes it an offense for someone to intentionally disclose images, without consent, showing someone’s intimate parts or engaged in sexual conduct, if the victim had a reasonable expectation the images would remain private, the disclosure of the images harms the victim and reveals his or her identity.

Assistant State Prosecuting Attorney John Messinger, who represents the state, argued in a Sept. 10, 2018, brief that the high court should avoid the difficult strict scrutiny review in favor of a lesser intermediate scrutiny standard. He wrote the law doesn’t regulate speech on matters of public concern, the government has a compelling interest in preventing harm from the invasion of privacy, and the law is narrowly tailored to hit the worst violations.

“There is no ‘debatable public question’ about an ex-girlfriend’s nipples. There are no competing viewpoints about a ‘dick pic’ requested by a lover but later posted on the internet,” he wrote.

Messinger declined to comment.

Bennett & Bennett partner Mark Bennett of Houston, who represents Jones, wrote in a November 2018 brief that there can’t be exceptions to free speech protections for unpopular speech with low value or pernicious effects. The law in question must face strict scrutiny, because it involves content-based speech—intimate images—and the function of the speech, causing harm.

“Because this law restricts speech that embarrasses or offends, but not speech that flatters or uplifts, it discriminates among points of view,” Jones argued.

The court must ask if the law reaches a real, substantial amount of speech protected by the Constitution, the brief said, regardless of whether the government was trying to target just unprotected speech. He argues the law does apply to protected speech.

“The restriction of protected speech is never legitimate,” Jones argued.

The court could decide the case any day now, and meanwhile, four amicus briefs have flowed in to sway its mind.

The latest brief by Paxton on March 26 said the law is not overbroad, and it only criminalizes very harmful invasions of privacy.

“The state has a compelling interest in protecting its citizens from the egregious harms caused by nonconsensual pornography,” Paxton wrote.

Also supporting the state’s arguments was the Cyber Civil Rights Initiative, a nonprofit that addresses the problem of unauthorized distribution of intimate images. Its Jan. 17 amicus brief noted that 42 states have criminalized nonconsensual pornography. The area includes more than an ex-partner posting images of his ex taken during their relationship. The images may also come from hidden cameras, hacked photos or recordings of assaults. The victims suffer serious harm: shame and embarrassment, losing jobs or being passed over for a new position, and some even die by suicide.

“There is no First Amendment right to invade a person’s privacy by distributing private, intimate images of him without authorization,” it said. The law is just like other privacy protection laws prohibiting disclosure of health records or trade secrets, the institute argued.

However, a group of media and publishing associations argued the opposite—that the revenge porn law “poses a broad threat to free speech,” both online and in traditional media, and by the public, journalism outlets and other publishers. The law doesn’t have an exception for publishing images in the public interest or on matters of public concern, it said.

“A defendant can be convicted even though there was no past or present relationship between the defendant and the depicted person, and even though the defendant did not know the circumstances in which the image was made and thus did not know whether the depicted person consented to the disclosure or whether the depicted person had a reasonable expectation of privacy,” the media amicus brief said.

One other amicus brief by Oregon resident Benjamin Barber, who is litigating a similar case in his state, also argued for the high court to rule the revenge porn law unconstitutional.

Bennett, Jones’ lawyer who has litigated at least four other revenge porn cases, said in an interview that no one wants to tell revenge porn victims that the First Amendment protects posting their images, but it does.

“A court really doesn’t want to hold the statute unconstitutional for the emotional argument that the attorney general and state make,” Bennett said. “But there’s Supreme Court constitutional law that makes it an easy issue.”