Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'

Last week a Tyler, Texas, appellate court struck the state’s criminal revenge porn law as fatally overbroad, so facially unconstitutional, under the First Amendment to the federal Constitution.  The ruling garnered headlines heralding the unconstitutionality of revenge porn law, which could have big implications in privacy law and policy nationwide—even ramifications for U.S. foreign relations.

However, the court’s ruling was not so broad as headlines have suggested.  In fact, the court gave wise and constructive feedback on what a revenge porn law needs to look like to pass constitutional muster—which it can.  It seems in the end that the Texas law was just not well drafted.  Accordingly, the revenge porn laws that have proliferated in the United States, now in 38 states (collected at Cyber Civil Rights Initiative), should be scrutinized and, if necessary, corrected.  (Constitutional problems with Vermont and Arizona laws were mentioned just today by the U.K. Register, here.)

The Texas case, Ex parte Jones, No. 12-17-00346 (Tex. Ct. App. Apr. 18, 2018), involved a criminal information against Jones under Texas Penal Code section 21.16(b), which criminalizes the “unlawful disclosure of intimate visual materials.”  The statute reads:

A person commits an offense if:

  (1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

  (2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

  (3) the disclosure of the visual material causes harm to the depicted person; and

  (4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]

The statute, section 21.16(a), furthermore defines “visual material” broadly (“any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide,” as well as electronic transmission) and “intimate parts” specifically (““the naked genitals, pubic area, anus, buttocks, or female nipple of a person”).

The court’s First Amendment analysis was sound.  The court applied de novo review to test the constitutionality of a criminal statute.  The court rejected a narrow construction that would confine the law to mere obscenity, as stringently defined by federal precedent.  Because the statute is then a content-based restriction of expressive content, the court charged the government with the burden of rebutting presumptive unconstitutionality.  The State conceded at oral argument that the law must survive strict scrutiny, i.e., advance a compelling state interest and be narrowly tailored to do so.  Intimate privacy passes muster on the first prong, but the statute facially fails narrow tailoring.  The court acknowledged that overbreadth doctrine is “strong medicine”; nevertheless, the statute could not measure up.

The court illustrated the statute’s fatal flaw with a hypothetical, unattributed so presumably original, that seems drawn from a law school or bar exam:

“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”

“In this scenario,” the court observed, “Adam can be charged under Section 21.16(b), but so can Charlie and Donna.”

Therein lies the problem: not necessarily as applied to Adam, but as applied to Charlie and Donna, who are ignorant of the circumstances under which the photo came to be.  Certainly Charlie, who received the photo from Adam “without comment,” might as well believe that Adam ripped the photo of a stranger from a pornographic website.  However indecent the photo, both Charlie and Donna have a First Amendment right to communicate the photo “downstream.”  Yet without Barbara’s consent, Charlie and Donna run afoul of the revenge porn law.  Given the ease with which persons can share visual images in the age of electronic and online communication, the court found “alarming breadth” in this potential criminalization of expression.  In First Amendment overbreadth doctrine, a facially overbroad criminal law must be ruled unconstitutional even if it might be constitutional as applied to the defendant before the court.

The court distilled the law’s flaws in two dimensions related to culpability.  Typically of a criminal prohibition, the statute requires intent.  But intent pertains only to the republication of the image.  The statute does not require that the actor have “knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.”  Second, the statute does not require “intent to harm the depicted person,” or even knowledge “of the depicted person’s identity.”  Borrowing the language of civil law (meaning common law tort), one would say that the statute requires volitional intent, but not intent to commit a wrong or to cause an injury.

The requisite intent to survive constitutional challenge may be likened to “actual malice,” which is used in both civil and criminal defamation law to describe “knowledge of falsity or reckless disregard of truth or falsity.”  In the context of revenge porn, a constitutional law might require “actual knowledge of the depicted person’s reasonable and continuing expectation of privacy in the image, or reckless disregard of same.”  If Charlie knew the identity of Barbara, so might infer the circumstances under which the photo had been taken, then the State might at least allege recklessness.  Donna, who did know Barbara’s identity, might be charged.  But she should be entitled to defend upon a qualified privilege, borrowed again from common law defamation, to share information in the interest of a recipient or third party when the defendant should disclose according to general standards of decency.  A corrected statute would hold Adam accountable without a constitutional problem.

Also just last week, the Rhode Island legislature (my home state) passed a revenge porn bill (2018-H 7452A) that has the support of the Governor Gina Raimondo (AP).  Raimondo vetoed a revenge porn bill in 2016, objecting on free speech grounds (Providence Journal).  Her position now is bolstered by the Texas decision in Jones.  Beefing up the intent requirement is precisely one of the R.I. legislative fixes that brought the latest bill to fruition.  The Rhode Island bill requires that the defendant intentionally disseminated, published, or sold “[w]ith knowledge or with reckless disregard for the likelihood that the depicted person will suffer harm, or with the intent to harass, intimidate, threaten or coerce the depicted person.”

I still have qualms about extending the “reasonable expectation of privacy” (REP) standard—which is drawn from Fourth Amendment jurisprudence as a bulwark against improper state action—being extended into the realm of private criminal or civil liability.  REP is potentially much broader than the intimate-depiction definitions of revenge porn laws.  And criminalization and civil liability are not the same.  Even though criminal defamation is constitutional when qualified by actual malice, contemporary human rights norms discourage the criminalization of expression at all.

At the same time, I have argued in favor of evolving U.S. law to recognize downstream control of private information, in consonance with both American values in the information age and emerging global legal norms.  Revenge porn laws—as against Adam, to the exclusion of Charlie and Donna—are a modest step in that direction, which European observers will welcome of us.  We will have to remain vigilant to continue to protect freedom of expression in tandem with expanding privacy rights, especially in a time in which the latter at the expense of the former is the fashion.  Conscientious actors such as the Jones panel (Worthen, C.J., and Hoyle and Neeley, JJ.) and Governor Raimondo are doing well, so far.

Mass. high court supports AG in climate change investigation of Exxon Mobil

I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change.  The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Mass. A.G. Maura Healey
(Edahlpr CC BY-SA 4.0)

Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth.  The AG tracks the investigation blow by blow online.  The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.

As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change."  Exxon resisted the CID on personal jurisdiction grounds.  Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469).  A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018).  Exxon is incorporated in New Jersey and headquartered in Texas.

The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained.  Exxon denied "suit-related" activity in Massachusetts.  But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.

Exxon franchise in Durham, N.C.
(Ildar Sagdejev CC BY-SA 4.0)

"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts."  More than 300 Exxon and Mobil franchises operate in Massachusetts.  Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'"  The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.

The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country.  The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830).  If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).

In re United States, 884 F.3d 830 (9th Cir. 2018)

884 F.3d 830

In re United States, 884 F.3d 830 (9th Cir. 2018)

Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary

Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.

As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates.  The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained.  Read more about that here (predating implementation of the EU General Data Protection Regulation).  The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.  

Hat tip @TheItalianLawJournal.  For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF.  The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.

Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0)

The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000.  I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most obnoxious and grumpy characters in the entertainment world."  The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years.  Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video. 

Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after."  The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion."  However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.

The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained.  "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."

The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:

1. the contribution made by the dissemination of the image or of the news to a matter of public interest;
2. the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image; 
3. the high degree of notoriety of the subject represented, for the economic or political reality of the country;
4. the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
5. the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.

Applying its multi-factor test, the court decided that RAI's interest in the rebroadcast video segment was outweighed by Antonello's privacy and data protection rights.  The court below had erred by finding Antonello's fame dispositive.  Reminding one of the analysis of Elmer Gertz in U.S. defamation lore, the court held that Antonello's large public following "certainly" did "not invest[ him] with a primary role in national public life."  Moreover, RAI's purpose, five years on, lacked merit. The court found it "undeniable that the reiterated broadcast ... had [the] unique purpose of allowing the inclusion of the singer ... in a ranking of ... 'the most obnoxious and grumpy of the entertainment world,' invented by the same broadcaster, allowing, in this way, the satisfaction of an interest that is exclusively informative [again, divulgativo], for commercial purposes, and for the television operator's audience."  The broadcaster's derogatory comments about Antonello's fame in 2005 aggravated the offense, the court added.  

The court also rejected "satire" as a defense.  The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist."  The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."

This case is the very stuff of American media advocates' nightmares.  Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case.  The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver.  Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.  

I've advocated in favor of evolving U.S. privacy law toward European data protection norms.  But the Italian court went too far here, lending credence to American nay-saying.  I fault the court's analysis of Antonello as, in U.S. terms, a "private figure."  The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary.  It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame.  The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste.  American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.

SCOTUS 'Microsoft' privacy case likely moot, R+C blog reports

It looks like we won't get an answer from the U.S. Supreme Court in the Microsoft privacy case.  For the Data + Privacy Security Insider at Robinson + Cole, Kathleen Porter and Connor Duffy report that the Government and Microsoft agree that the case was mooted by the CLOUD Act, signed into law in March as part of omnibus spending legislation. 

The CLOUD Act gives the Government the authority to compel Microsoft to produce the sought-after data, whether stored at home or abroad, and the Government already has attained a warrant under the new law.  Microsoft's reported statement indicates that the company's position was exonerated insofar as it maintained that the legislature was the appropriate branch of government in which to resolve the matter.

I wrote about Microsoft and the pending Carpenter case for the winter 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the ABA Section of International Law (published just last month, March 2018).