[T]he Vermont Supreme Court says the state’s law against revenge porn is constitutional.
However, whether a Vermont woman should face a criminal charge for allegedly sharing online a nude image of another woman she found by accessing her boyfriend’s Facebook account is still an unanswered question.
Ultimately, it may be the U.S. Supreme Court that decides.
An attorney for the woman facing criminal prosecution called the recent court ruling “bizarre,” while a prosecutor termed it “pretty significant.”
That’s the upshot from a decision Friday that was the first test of the state’s revenge porn statute. Attorneys on both sides are now preparing to file additional briefs to the state’s highest court before it’s decided whether criminal charges brought against Rebekah Van Buren will stand.
That decision will likely hinge on whether the woman who had her nude images shared online had a “reasonable expectation” of privacy after sending them privately to the man.
The Bennington County case is the first from the Vermont Supreme Court regarding a challenge to the 2015 statute targeting the electronic distribution of intimate photographs of someone, often a former partner, as a form of retribution
Vermont Defender General Matthew Valerio, whose office represents Van Buren, said Friday that he was reaching out to “procedural gurus” about the possibility of appealing the recent ruling to the U.S. Supreme Court.
“This is a bizarre decision,” Valerio said. “This is one of those things where, my guess is, that there was disagreement as to what they were going to do with this and so you end with a very odd kind of decision.”
Vermont Solicitor General Benjamin Battles of the state’s attorney general’s office, which handled the appeal before the state’s Supreme Court jointly with the Bennington County state’s attorney’s office, called the ruling a “pretty significant” decision.
“About 40 states have passed similar laws and as far as I know I think this is the first state supreme court to address a First Amendment challenge to one of these laws,” Battles said Friday. “We’re certainly pleased with the ruling upholding the statute.”
The Vermont Supreme Court, in its opening paragraph to the 34-page ruling, stated, “We conclude that the statute is constitutional on its face.”
“The nonconsensual dissemination of such intimate images — to a victim’s employer, coworkers, family members, friends, or even strangers — can cause ‘public degradation, social isolation, and professional humiliation for the victims,’” wrote Justice Beth Robinson in a majority decision joined by three other justices. “The images may haunt victims throughout their lives.”
That opinion drew a sharply worded dissent from one of the court’s own members.
“While disseminating ‘revenge porn’ may be a repulsive and harmful action, the statute’s attempt to criminalize this behavior runs afoul of the rights and privileges of the First Amendment,” Justice Marilyn Skoglund wrote.
“Can revenge porn cause extreme emotional distress? Oh, yes,” Skoglund added. “However, while the majority finds a compelling State interest in preventing the nonconsensual disclosure of nude or sexual images of a person obtained in the context of a confidential relationship, I cannot agree that, in this day and age of the internet, the State can reasonably assume a role in protecting people from their own folly and trump First Amendment protections for speech.”
The majority decision overturns, at least in part, an earlier decision by trial court Judge David Howard, who ruled in favor of a constitutional challenge to the law by attorneys for Van Buren. He dismissed the case.
That prompted the prosecution’s appeal to the Vermont Supreme Court.
The drafting of the statute in 2015 sparked fierce discussion in the Legislature, before it was eventually adopted and signed into law by Gov. Peter Shumlin.
Victim’s rights advocates spoke up in support of the measure as vital to protect Vermonters from exploitation and violation of privacy.
Supporters of civil liberties argued that the the statute would step on constitutionally protected rights to free speech, contending the issue is best addressed in civil court.
The case that landed before the Vermont Supreme Court began in October 2015 when a Bennington County woman learned that naked photos of her had been posted on Facebook. They were photos that she had previously shared via private messaging with a man.
However, they were being posted publicly, without her consent, and she was tagged in them, according to the Supreme Court ruling. She tried to reach the man whose Facebook page it was, took down her account, and her friends posted messages in her defense and reported the images to Facebook.
“I was humiliated so I just wanted people to know what was posted wasn’t voluntary,” the woman said in a sworn statement to police.
Authorities did not charge the man on whose Facebook page the images were posted, but instead brought criminal prosecution in December 2015 under the revenge porn law against Van Buren — a woman who was romantically involved with the man.
Van Buren allegedly gained access to the man’s private Facebook messages through a phone and found the images. She called the woman depicted in the images, telling her she is a “moral-less pig” and threatened to contact her employer, according to authorities.
According to prosecutors, Van Buren admitted to a trooper who investigated the case that she posted the photos publicly. She reportedly said to him, “You think she learned her lesson?”
Her attorney, Albert Fox, argued in trial court that there could not be a reasonable expectation of privacy when someone sends nude photographs over Facebook, even when sent in a private message instead of a public post.
Van Buren, he wrote, “is in effect accused of transferring some images from one more private section of Facebook to another more public.”
Howard, in striking down the law, agreed with the defendant, and wrote that nude images in themselves do not qualify as obscenity.
The law, he added, “would apparently criminalize disclosure by a party who never had any relationship with (the) complainant and who received such unsolicited sexual photographs and decided to disclose them to convince (the) complainant not to send any more or out of anger for being the recipient.”
Skoglund, in her dissent to Vermont Supreme Court’s decision, added to Howard’s argument finding the law unconstitutional.
“My primary war with the statute is simply this,” Skoglund wrote. “The State has at its disposal less restrictive means to protect Vermonters against invasion of their privacy than subjecting a violator to a criminal penalty.”
She wrote that civil court actions involving claims of invasion of privacy and causing intentional emotional distress are available.
“While disseminating ‘revenge porn’ may be a repulsive and harmful action, the statute’s attempt to criminalize this behavior runs afoul of the rights and privileges of the First Amendment,” Skoglund added. “When content-based speech regulation is in question, exacting scrutiny is required. And, the burden placed on free speech due to its content is unacceptable if less restrictive alternatives would be at least as effective in achieving the statute’s purposes.”
Robinson, writing for Supreme Court’s majority, offered a different view.
“From a constitutional perspective, it is hard to see a distinction between laws prohibiting nonconsensual disclosure of personal information comprising images of nudity and sexual conduct and those prohibiting disclosure of other categories of nonpublic personal information,” Robinson wrote. “The government’s interest in protecting all from disclosure is strong.”
