Is New Jersey's Revenge-Porn Statute Constitutional?

 Posted on October 16, 2013 in Uncategorized

In Are Statutes Criminalizing Revenge Porn Constitutional? I considered Mary Anne Franks's proposed statute aimed at revenge porn, and concluded that lower courts considering the constitutionality of the statute will be constrained by current Supreme Court precedent to find the statute unconstitutional.

At least three states-New Jersey, California, and Texas-have statutes that would criminalize revenge porn. I've discussed the unconstitutionality of Texas's improper-photography statute before, and California's statute is newer, so let's turn our attention first to New Jersey's third-degree-invasion-of-privacy statute.

Here's the relevant portion:

(c) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.d. It is an affirmative defense to a crime under this section that:(1) the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and(2) the actor acted with a lawful purpose.

New Jersey's statute comes with a loophole big enough to drive a truck through: if, before disclosing the image, the bad ex-boyfriend gave the ex-girlfriend notice of his intent to do so, and if he acted with a lawful purpose, he has an affirmative defense. That is, if he presents evidence that he gave notice and acted with a lawful purpose the State has to disprove the defense beyond a reasonable doubt.

So what?, you might think, revenge porn is never posted with a lawful purpose. Think again, teacup. There is nothing inherently unlawful about embarrassing someone, much less about promoting art. So provided that, before posting her nude pictures online, he sent her an email...:

Lucrezia,I am sorry things didn't work out between us. Thank you for the lovely nudes. I will be publishing them, along with your name and address.Ciao,Giovanni

...Giovanni has not committed the New Jersey felony of invasion of privacy.

Further, Giovanni might reasonably believe that, because of his right to free speech, he is "privileged" to republish the images-an inferential rebuttal defense.

There are no appellate court opinions in cases in which the constitutionality of New Jersey's 2C:14–9c, the third-degree-invasion-of-privacy statute, has been challenged. When it is seriously challenged, what result does United States Supreme Court precedent require?

Note first that the statute-like Franks's proposed state statute-is content-based. That is, whether publication is forbidden depends on the content of the communication. A content-based restrictions on speech is presumptively invalid. The Supreme Court has said that the burden is on the State to show that a content-based criminal statute meets strict scrutiny, that is: a) it is justified by a compelling governmental interest; b) it is narrowly tailored to achieve that interest; and c) it is the least restrictive means for achieving that interest.

But Eugene Volokh argued in 1997 that "strict scrutiny" does not in fact describe the Court's test for content-based restrictions on fully protected speech, and in fact in 2010, in the Supreme Court's most recent significant First Amendment case, U.S. v. Stevens, the court did not even discuss strict scrutiny beyond the introductory section in which the Court described the Third Circuit's reasoning. The Court did not discuss the Government's compelling interest in preventing animal abuse, ((The dissent did.)) nor whether the statute was narrowly tailored. Instead it applied a categorical approach, much as Volokh advocated in 1997.

The Court in Stevens didn't explicitly reject strict scrutiny, but it deprecated it. Discussing the example of New York v. Ferber, the Court wrote:

In Ferber, for example, we classified child pornography as [a category of speech outside the protection of the First Amendment]. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this "balance of competing interests" alone. We made clear that Ferber presented a special case....Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.

The statement of the case in Stevens is pretty darn categorical:

Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.

Merely meeting strict scrutiny is not enough to uphold a statute. The State must also show that the speech that is restricted falls in some category that has been historically unprotected. Those categories are currently obscenity, defamation, fraud, incitement, and speech integral to criminal conduct

The speech addressed by New Jersey's statute-images of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact-is not in itself obscene as the Supreme Court has defined obscenity.

It is not defamatory because it's true.

It is not necessarily incitative-that is, it can be published without inciting the imminent commission of a crime.

It is not necessarily integral to criminal conduct. Speech is not "integral to criminal conduct" when the only crime that it is integral to is its own publication; if it were, then all outlawed speech would be integral to criminal conduct because it was outlawed, and no speech would be protected.

Because the nonconsensual publication of nude images does not fit into any enumerated category of unprotected speech, New Jersey's third-degree-invasion-of-privacy statute-Like Franks's proposed state statute-will fall in intermediate appellate courts to a serious First Amendment challenge.