On the list of negative consequences of the internet age, “revenge porn” has to rank
high. For the unaware, revenge porn occurs when a former significant other posts intimate photos following a breakup. It is hurtful, invasive and any number of other adjectives.

Many states (40 plus the District of Columbia) have enacted statutes to address the problem.

But the question persists, are those statutes constitutional? Like it or not, the practice implicates the First Amendment.

The most recent case to address the issue comes from an appellate court in Wisconsin. That court decided the Wisconsin statute is constitutional. The court concluded the statute was sufficiently narrow to survive the constitutional challenge.

The case presented fairly typical facts. The defendant, Norris Culver, posted nude photos of a woman (identified in the court’s opinion as “A.A.L.” online) without her permission. Culver admitted he posted the photos out of anger. A.A.L. told police Culver also was a felon who had firearms at his residence.

In June 2015, Culver was charged with one count of posting or publishing a private depiction of a person contrary to Wisconsin law. 

In August of that year, Culver entered a guilty plea to the “post or publish” charge. The court imposed a sentence of nine months in jail.

Culver filed a motion for post-conviction relief, arguing that the statute is overly broad and impermissibly vague. The trial court denied the motion, and Culver appealed.

The appellate court quoted the key portion of the statute. It says:

“Whoever does any of the following is guilty of a Class A misdemeanor: ….  Posts, publishes, or causes to be posted or published, a depiction of a person that he or she knows is a private representation, without the consent of the person depicted.

(b) This subsection does not apply to any of the following:

3. A person who posts or publishes a private representation that is newsworthy or of public importance.”

The statue defines “private representation” as:

“[A] representation depicting a nude or partially nude person or depicting a person engaging in sexually explicit conduct that is intended by the person depicted in the representation to be captured, viewed, or possessed only by the person who, with the consent of the person depicted, captured the representation or to whom the person depicted directly and intentionally gave possession of the representation.”

According to the appellate court, several elements of the statute saved it. First, the parameters of “private representation” were limited to nudity, partial nudity or sexual conduct. This plainly limited its application to discreet and personal depictions. Second, the “intent” provision was a limiting feature. The photo had to be expressly intended for an audience of one. And the statute applies only to persons who know the photo was a private representation.

Finally, the statute carves out posting photos that are “newsworthy or of public importance.” So, if Stormy Daniels has photos of herself and the President, for example, she’d likely not be subject to prosecution for posting them. In Wisconsin at least.

Given these limitations, the court concluded:

“[The statute] encompasses only a particular type of image, which must be intended to be private, which must be captured with consent, which the publisher must know is private, and which is published without consent nonetheless. With its focused scope, we see no showing that the statute prohibits or even chills a substantial amount of free expression.”

States and municipalities looking to outlaw revenge porn consistent with the Constitution may want to model their law after the Wisconsin statute.

Read or Share this story: https://cin.ci/2CmZfxw