2018 Legislative Memorandum

Subject: Establishing the crime of unlawful dissemination or publication of an intimate image

A.11188-A (Braunstein) / S.9019-A (Boyle)

Position: OPPOSE

The New York Civil Liberties Union opposes A.11188/S.9019, which criminalizes nonconsensual distribution of intimate images with intent to cause harm – a practice often shorthanded as “revenge porn.” Revenge porn is a cruel invasion of privacy that disproportionately harms women and young people, and preventing that harm is a laudable goal. However, criminalizing such behavior is an unconstitutional overreach that will not solve the problem, and may itself disproportionately harm vulnerable persons, especially teens and young adults.

In addition, statutes drafted to address revenge porn can often capture a far broader swath of expressive behavior than the commonly-understood example: a jilted ex-lover who maliciously shares imagery that was created or obtained in a relational setting, as a means to harass or harm. Unfortunately, A.11188/S.9019 over-reaches in this regard, in that it could improperly penalize third parties that later share what were once private images. Such provisions have failed First Amendment challenges.

And, if enacted, who would be charged with the offense proposed in the bill? Young people, many of whom share racy content reflexively or as social currency, often with bravado but without real intent to harm; and most of whom are unlikely to be able to afford legal representation that would press to challenge the constitutional validity of the charging statute. Many of the individuals charged, many of them young people of color, will end up with a lifelong criminal record, or worse.[1]

The NYCLU urges lawmakers to avoid use of criminal penalties to rein in even repugnant expressive behavior, and reject A.11188/S.9019.

First Amendment Considerations

The NYCLU acknowledges the crucial privacy concerns implicated in sharing of intimate images; but we believe that, if enacted, A.11188/S.9019 would be unlikely to survive a First Amendment challenge. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[2] This legislation, which would criminalize the distribution of a category of images based upon their intimate nature, imposes precisely such a restriction.

In court, the proposed statute would face strict scrutiny[3] – meaning the state would have to show that banning the captured sharing of images was necessary to satisfy a compelling government interest in protecting individual privacy, and that creating a new category of criminal misdemeanor was the least-restrictive measure likely to achieve that interest. That is a near-insurmountable burden, as such laws rest on shaky ground from the start – they are presumptively invalid[4] – and are almost impossible to tailor in a sufficiently narrow fashion.

To be sure, preserving the dignity and bodily autonomy of all persons, including women and young people – who are disproportionately the victims of revenge porn – is a worthy goal. And protecting individual privacy can be a compelling interest.[5] But to successfully defend A.11188/S.9019, the state must demonstrate not only its compelling interest in curtailing the sharing of nonconsensual explicit imagery, but also that criminalizing this sharing will achieve that interest where no less-restrictive measure can.[6]

Proving that A.11188/S.9019 is the least restrictive means of curtailing revenge porn will be exceptionally hard, for a number of reasons. First, subjects of improperly disseminated images have other existing remedies, such as civil lawsuits for invasion of privacy and intentional infliction of emotional distress,[7] as well as new potential civil remedies more targeted to the offensive behavior. These would not only be considered effective alternatives to criminalizing the distribution of offensive images[8] – they may be preferable in that they permit victims to retain more effective control over litigation, desired remedies, and their own self-preservation in proceedings.

In addition, a statute’s defeat under “least restrictive measure” analysis is all but certain if it is unlikely to be effective itself,[9] and it is indeed unlikely that making a criminal misdemeanor out of distributing intimate imagery will either (1) deter those perpetrators who are already undeterred by the prospect of a costly civil judgment, or (2) stop the further distribution of intimate images once they are uploaded to the Internet.

The proposed statute is also likely to fail the “least restrictive measure” prong of the strict scrutiny test because it does not require that the subject of an intimate image actually be harmed by the image’s publication. This could lead to absurd outcomes, including criminal charges against individuals who publish intimate images that are never actually viewed by anyone.

Recent jurisprudence also suggests A.11188/S.9019 will not be considered a “least restrictive measure” because, under the bill’s proposed §245.15(1)(b), a third party who shares an image may be prosecuted “regardless of whether [they were] present when the still or video image was taken,” where the image’s subject had an expectation of privacy when the image was produced, and a third party “reasonably should have known” the image was intended to be confidential.[10] However, third parties often have no way of knowing the circumstances under which the image was captured or whether the person depicted had an expectation of privacy or intended an image to be confidential, and third party publication, even with harmful intent, may be protected by the First Amendment.[11]

Where an attempt to prohibit a particular form of expression restricts content beyond its intended and – if only arguably – legitimate, target, it is overbroad. This bill is overbroad for most of the reasons it fails the “least restrictive measure” test described above. Such objections are not merely hypothetical: a few weeks ago, a criminal appeals court in Texas invalidated the state’s revenge porn statute, which is similar in many respects to this bill, under the “least restrictive measure” test because, among other things, it criminalized third party publication.[12]

Finally, as amended, the bill’s proposed §245.15(1)(a)(ii) qualifies as an intimate image any depiction of the subject engaged in “sexual conduct” without further limitation. Alarmingly, defining prohibited content in this way – by referring to a very broad state Penal Law definition[13] – could render subject to penalty someone who shares images that do not even contain nudity or any commonly understood sexual conduct, so long as someone perceives the content to be sufficiently sexual in nature.

Concerns Related to Disparate Impact in Enforcement

The advancement of communications and image-sharing technology, and the way people integrate that technology into their personal lives, continues to outpace the law. As a result, there is no just, effective way to control, let alone legislate, how teens and young adults will use technology as they explore dating and sexual behavior. Electronic exchange of nude or sexually explicit photos has become common, even normative, behavior among teens and young adults, who often do not understand the risks of sharing intimate images and other data in a way that can be cruelly and irreversibly exploited.

Tossing teens in jail for exercising bad judgment[14] and poor impulse control at the intersection of sex and technology will neither deter them from future reckless sexual behavior, nor educate them about consent, privacy, or the consequences of misusing technology. It will, however, have serious and lasting consequences. Many convicted of disseminating revenge porn, even as a misdemeanor, will be forced to submit their DNA to the state DNA Databank;[15] many will have difficulty finding employment or getting into college; and, if recent history is any guide, many may, under likely future legislation, be compelled to register as sex offenders. These penalties will disproportionately affect youth of color, as well as those who lack the financial resources to easily navigate the criminal justice system. Such collateral damage must not be tolerated.

Conclusion

Technological advances continue to influence our attitudes about privacy, sexuality and consent, as each new app or device capability broadens the boundaries of “normal” online sexual behavior, especially among teens and young adults. Revenge porn is but one cruel, insidious outgrowth of that trend. To combat it, we must continue to educate the public about technology, privacy, sexuality, personal dignity, and consent.

Rather than prosecute, the important societal goals of preserving individual privacy and protecting personal dignity are better achieved through rigorous public education about sex, consent, personal dignity, bodily autonomy, digital privacy, and technology. The criminal law is too broad and too imprecise a tool to achieve these objectives. The NYCLU urges lawmakers to reject and reconsider A.11188/S.9019.




[1] Recently, calls for “revenge porn” legislation in New York have included a call to designate the offense as requiring registration on the statewide sex offender registry (see “Governor Cuomo Unveils 11th Proposal of the 2018 State of the State,” Dec. 17, 2017, available at https://www.governor.ny.gov/news/governor-cuomo-unveils-11th-proposal-20...).

[2] Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002).

[3] “A law that is content based on its face,” which A.11188/S.9019 is, because it applies solely to photographs and videos that depict certain body parts or activities, “is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech.” Reed v. Town of Gilbert, 576 U.S. ___; 135 S.Ct. 2218, 2227 (2015).

[4] See United States v. Stevens, 559 U.S. 460, 468-69 (2010) (explaining that restrictions on “photographs, videos, or sound recordings,” depending on what they depict, are “presumptively invalid,” and that “the Government bears the burden to rebut that presumption.”), citing United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000).

[5] More specifically, protecting individual privacy can be compelling where the privacy interest itself is substantial and the invasion occurs in an intolerable manner. See Snyder v. Phelps, 562 U.S. 443, 459 (2011).

[6] “When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals. Playboy, supra at 816. See also, Ashcroft, supra at 665 (2004) (affirming a preliminary injunction against the Child Online Protection Act because, among other reasons, the government had not shown that the proposed alternatives would be less effective).

[7] Note, however, that IIED suits are also subject to First Amendment scrutiny. Snyder, supra at 451.

[8] “If a less restrictive alternative would serve the Government’s purpose the legislature must use that alternative.” Playboy at 811-13.

[9] An act will also fail strict scrutiny if the government cannot show the measure “will in fact alleviate [the harm] in a direct and material way.” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n., 512 U.S. 622, 664 (1994); Edenfield v. Fane, 507 U.S. 761, 770-771.

 [10] See Ex Parte Jordan Bartlett Jones, No. 12-17-00346-CR (Tex. App. – Tyler, May 16, 2018), available at https://caselaw.findlaw.com/tx-court-of-appeals/1896041.html.

[11] Snyder at 456; see also Bartnicki v. Vopper, 532 U.S. 514 (2001); Florida Star v. B.J.F., 491 U.S. 524 (1989); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).

[12] Jones, supra (“Overbreadth” and “Summation”).

[13] N.Y. Penal Law §130.00(10) sets forth, et al., the following definition: (3) “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

[14] The law has long recognized and accounted for young persons’ incomplete cognitive and moral development in assessing the fairness of juvenile sentencing. See Roper v. Simmons, 543 U.S. 551, 561 (2005); Johnson v. Texas, 509 U.S. 350, 368 (1993); Thompson v. Oklahoma, 487 U.S. 815, 835 (1988); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982).

[15] See “NYS DNA Databank Qualifying Offenses,” available at: http://www.criminaljustice.ny.gov/forensic/dnaoffenses.htm, last viewed June 19, 2018.

 

Sponsors

Braunstein, Boyle

Authors

Erika Lorshbough

Bill number

A.11188-A / S.9019-A

Position

Oppose

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