Forty-six states and the District of Columbia have passed revenge porn laws, but courts are increasingly considering the constitutionality of the statutes on First Amendment grounds. However, there is little cohesion among state revenge porn laws.
Two recent cases in Illinois and Texas, People v. Austin and Ex Parte Jordan Bartlett Jones, have challenged revenge porn statutes on First Amendment grounds. The appellants alleged the statutes unconstitutionally restricted individuals’ freedom of speech. In People v. Austin, the Supreme Court of Illinois ruled disseminating private sexual images without permission is not constitutionally protected speech. The Twelfth Court of Appeals in Tyler, Texas, considered the appeal of Jordan Bartlett Jones and concluded the Texas revenge porn law was unconstitutional. The Court wrote, “it violates rights of too many third parties by restricting more speech than the Constitution permits.” The case is currently pending in Texas’ highest criminal court.
Illinois and Texas have not been the first states to consider the constitutionality of revenge porn laws either. In 2018, Wisconsin and Vermont court of appeals rejected First Amendment challenges to the states’ revenge porn laws. In 2016, Rhode Island’s Governor vetoed the state’s revenge porn bill over concerns of its constitutionality. In 2015, Arizona revised its 2014 revenge porn statute following a court challenge.
Part of the issue is whether revenge porn statutes should be viewed under privacy laws or laws restricting unpleasant speech. If viewed under privacy laws, disseminating private sexual images stands alongside the illegal practice of disclosing Social Security numbers or medical records. Thus, viewed under privacy laws, revenge porn would not be a First Amendment problem.
However, in Illinois and Texas, the privacy argument failed, and the states’ revenge porn statutes were considered free speech. The Constitution protects free speech, even when offensive or disagreeable, unless an exception exists. The First Amendment does not protect threats, obscenity, incitement of violence, and public disclosure of private information.
Another issue is what level of scrutiny the courts should use when considering First Amendment challenges on revenge porn laws. Courts have struggled in deciding whether to apply the lower level of intermediate scrutiny or the higher bar of strict scrutiny. Some courts have held that revenge porn does not constitute a matter of public concern, and, thus, does not merit as much protection. Other courts have held that restrictions on fundamental speech rights must serve a compelling government interest and be as minimal as possible.
Comparison to Minnesota Revenge Porn Laws
In 2016, Minnesota became the 33rd state to criminalize the “non-consensual dissemination of private sexual images,” or, in other words, revenge pornography. The Minnesota statute is named “Nonconsensual Dissemination of Private Sexual Images” and makes it a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part. Violation of the statute is a Gross Misdemeanor, which may result in imprisonment of up to one year and/or a fine up to $3,000. If aggravating factors exist, such as the person in the image suffers financial loss due to the dissemination, the actor disseminates the image with intent to profit, or the actor disseminates the image with intent to harass the person depicted in the image, whoever violates the statute may be imprisoned for up to three years and/or must pay a fine of up to $5,000.
However, on December 23, 2019, a Minnesota court of appeals ruled the state’s revenge porn law was unconstitutional and violated First Amendment rights. The court in State v. Casillas ruled the State may punish the dissemination of private sexual images only when the perpetrator intended to harm his or her victim. The ruling has supporters of the revenge porn statute and local politicians pushing for a review by the Minnesota Supreme Court. The case likely will be appealed to the Minnesota Supreme Court, where the statute will be considered again.
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With the court in State v. Casillas ruling that Minnesota’s revenge porn law is unconstitutional, you may be confused if you have been charged with violating the revenge porn statute. If you have any questions about your situation, contact Brandt Kettwick Defense at 763.421.6366 for a free consultation with one of our attorneys.