Vermont’s “Revenge Porn” Crime Survives Constitutional Challenge–State v. VanBuren

Like many other states, Vermont has a relatively new crime against nonconsensual pornography (NCP) dissemination. A lower court ruled that the crime was facially unconstitutional. The state appealed. In this ruling, the Vermont Supreme Court grants the “extraordinary” relief of declaring the crime constitutional. Equally remarkably, the court concludes that the crime doesn’t fit into any of the existing categorical exclusions from the First Amendment, such as obscenity, but the law nevertheless survives strict scrutiny.

Distinction from Obscenity: “The offending disclosures pursuant to Vermont’s statute, by contrast, need not appeal to the prurient interest or be patently offensive. Typically, their purpose is to shame the subject, not arouse the viewer….Given the ill fit between nonconsensual pornography and obscenity, and the Supreme Court’s reluctance to expand the contours of the category of obscenity, we conclude that the speech restricted by Vermont’s statute cannot be fairly categorized as constitutionally unprotected obscenity.”

No New Exclusion for “Extreme Invasion of Privacy.”

The broad development across the country of invasion of privacy torts, and the longstanding historical pedigree of laws protecting the privacy of nonpublic figures with respect to matters of only private interest without any established First Amendment limitations, distinguish the kinds of privacy-protecting laws at issue here from the law prohibiting depictions of animal cruelty at issue in Stevens, 559 U.S. at 460. In that respect, nonconsensual pornography seems to be a strong candidate for categorical exclusion from full First Amendment protections.

Notwithstanding these considerations, we decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court’s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

Compelling State Interest. The state’s interest in the crime is compelling because of “the U.S. Supreme Court’s recognition of the relatively low constitutional significance of speech relating to purely private matters, evidence of potentially severe harm to individuals arising from nonconsensual publication of intimate depictions of them, and a litany of analogous restrictions on speech that are generally viewed as uncontroversial and fully consistent with the First Amendment.”

Narrow Tailoring. “Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State’s compelling interest because their disclosure would violate a reasonable expectation of privacy.” The court clarifies the knowledge element of the crime requires “knowledge of both the fact of disclosing, and the fact of nonconsent,” and law doesn’t reach depictions made in public or that the subject has publicly distributed.

The Dissent. The dissent disagrees that the law survives strict scrutiny. It says the state can’t protect people “from their own folly” (a wince-inducing victim-blaming remark), and a civil remedy would be less restrictive than a crime.

Implications

What’s Next. The lower court dismissed the claim on facial grounds, so it didn’t resolve any as-applied issues. In an odd response, the Vermont Supreme Court doesn’t remand the case back to the lower court to evaluate the as-applied issues. Instead, the court orders the parties to brief the issues directly to it, presumably so it can rule on the as-applied issues for the first time. I don’t understand why the Supreme Court will be doing this front-line work itself. Maybe it’s a quirk of Vermont procedure? Maybe they don’t trust the lower court to do it right?

I believe the defendant could appeal this ruling to the US Supreme Court due to its First Amendment implications, but the odds of the US Supreme Court taking it are super-low.

Opinion Persuasiveness. This is a well-constructed opinion that echoes many arguments made by supporters of new NCP laws. I expect they will cite this case heavily in other future cases. I also think it’s standing as a state supreme court ruling will enhance its importance.

Comparison to Texas. In April, in Ex Parte Jones, a Texas appellate court ruled that Texas’ NCP law was unconstitutional. The Vermont opinion didn’t cite that ruling, and I didn’t compare the statutes to identify any material differences.

Like the Vermont opinion, the court held that the NCP law was a content-based speech restriction and the obscenity exclusion didn’t apply. Like Vermont, it applied strict scrutiny, and it presumed a compelling state interest.

Unlike the Vermont court, the Texas court unsurprisingly held that the law didn’t pass strict scrutiny. The Texas court said the “knowledge” requirement didn’t apply to lack of consent (so a successful enforcement action could occur when the defendant had no scienter about any lack of consent), while the Vermont court casually added that requirement as a qualifying limitation. The Texas statute’s absence of this scienter requirement supported an overbreadth conclusion.

The Texas Court of Criminal Appeals has agreed to hear the Jones case, so the appellate court ruling may not be the final word. If it stands, it suggests that the Vermont court was more willing to interpose a limiting interpretation rather than strike down the law. The Vermont court did so because of the policy considerations; the Texas court may have taken a less flexible statutory construction approach (which isn’t necessarily inappropriate when we’re circumscribing First Amendment-protected speech). It’s hard to guess today whether future courts will be more focused on policy like Vermont or less tolerant of legislative drafting limitations like Texas.

Least Restrictive Means. While I didn’t love the VanBuren dissent, I think the least restrictive means issue deserves serious consideration by any judge reviewing NCP statutes. I continue to believe that many of the sui generis NCP statutes primarily overlap with existing law; and where the statutes don’t overlap, they extend existing law unconstitutionally. As Angie Jin and I documented in extensive detail, NCP plaintiffs have successfully used many other legal doctrines dozens of times. In the facts at issue in the VanBuren case (which I omitted from this post for simplicity), the criminal defendant almost certainly broke other laws or committed other torts (especially IIED), so the real question is why we need an overlapping/duplicative crime to supplement those. In light of the First Amendment concerns, the overlapping and duplicative nature of NCP laws is relevant to any facial challenge because it demonstrates that other less restrictive means are available.

Case citation: State v. VanBuren, 2018 VT 95 (Vt. Sup. Ct. August 31, 2018).