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"Revenge Porn" Law Ruled to be Unconstitutional

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A Texas appeals court finds that a state statute is unconstitutional and extremely broad.

An appeals court has struck down a “revenge porn” statute as unconstitutional and overly broad.

So-called “revenge porn” laws are intended to prohibit use of intimate photographs to cause embarrassment. Although in some circumstances sharing such photos might support a civil lawsuit for invasion of privacy, consent is typically a defense to an invasion of privacy claim.

If a person consented to being photographed in an intimate situation, someone who later shares such a photograph would have an argument that the consent bars a claim for invasion of privacy. As a way around the consent defense, some legislatures have crafted criminal laws that prohibit certain uses of intimate photographs even if the person consented to being photographed.

Texas, for example, has a “revenge porn” statute that prohibits intentionally disclosing visual material depicting another person’s intimate body parts, if the person had a reasonable expectation the material would remain private, the disclosure causes harm, and the disclosure reveals the person’s identity.

In Ex parte Jones, a Texas appeals court found that states “revenge porn” statute unconstitutional. That law, the court explained, “is extremely broad,” applying to any person who discloses visual material depicting another person’s intimate parts or a person engaged in sexual conduct, even if the disclosing person has no knowledge or reason to know the circumstances surrounding the material’s creation.

In addition, a person disclosing such a photo could be guilty of a crime, the court explained, even if the disclosing person had no intent to harm the depicted person or was unaware of the depicted person’s identity. The statute, therefore, did not satisfy the “strict scrutiny” analysis that applies to laws prohibiting speech based upon its content.

The Jones decision illustrates the significant First Amendment limits on laws that regulate speech. Uses of intimate photos might be embarrassing, harmful or offensive, but the First Amendment still poses significant challenges to lawmakers who attempt to criminalize use of such images.

Jim Lake is a partner in the Tampa office of Thomas & LoCicero.  His practice focuses on media law, intellectual property, and business litigation.  He represents clients in state and federal courts and before the U.S. Patent & Trademark Office, and he frequently renders advice on newsgathering, defamation, trademark and copyright matters.