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State v. VanBuren

Supreme Court of Vermont

June 7, 2019

State of Vermont
Rebekah S. VanBuren

          Original Jurisdiction Superior Court, Bennington Unit, Criminal Division David A. Howard, J.

          William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, and Erica Marthage, Bennington County State's Attorney, and Alexander Burke, Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

          Matthew F. Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellee.

          Bridget C. Asay of Donofrio Asay PLC, Montpelier, for Amici Curiae Cyber Civil Rights Initiative and Vermont Network Against Domestic and Sexual Violence.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, J.

         ¶ 1. This case raises a facial challenge to Vermont's statute banning disclosure of nonconsensual pornography. 13 V.S.A. § 2606. We conclude that the statute is constitutional on its face and grant the State's petition for extraordinary relief.

         I. "Revenge-Porn," or Nonconsensual Pornography Generally

         ¶ 2. "Revenge porn" is a popular label describing a subset of nonconsensual pornography published for vengeful purposes. "Nonconsensual pornography" may be defined generally as "distribution of sexually graphic images of individuals without their consent." D. Citron & M. Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 346 (2014). The term "nonconsensual pornography" encompasses "images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential relationship." Id.[1] 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." C. Alter," 'It's Like Having an Incurable Disease': Inside the Fight Against Revenge Porn,", []. The images may haunt victims throughout their lives. Id. (describing lasting effects of having one's nude photos posted online and stating that "this type of cyber crime can leave a lasting digital stain, one that is nearly impossible to fully erase").

         ¶ 3. This problem is widespread, with one recent study finding that "4% of U.S. internet users-roughly 10.4 million Americans-have been threatened with or experienced the posting of explicit images without their consent." See Data & Society, "New Report Shows That 4% of U.S. Internet Users Have Been a Victim of 'Revenge Porn, '" (Dec. 13, 2016), [ 937V]; see also C. Alter, supra (stating that "Facebook received more than 51, 000 reports of revenge porn in January 2017 alone"). Revenge porn is overwhelmingly targeted at women. D. Citron & M. Franks, supra, at 353-54 (citing data that victims of revenge porn are overwhelmingly female).

         ¶ 4. Forty states, including Vermont, have enacted legislation to address this issue. See Cyber Civil Rights Initiative, 40 States DC Have Revenge Porn Laws, [] (collecting state statutes). Federal legislation has also been proposed. See Intimate Privacy Protection Act of 2016, H.R. 5896, 114th Cong. (2016), [] (proposing to "amend the federal criminal code to make it unlawful to knowingly distribute a photograph, film, or video of a person engaging in sexually explicit conduct or of a person's naked genitals or post-pubescent female nipple with reckless disregard for the person's lack of consent if the person is identifiable from the image itself or from information displayed in connection with the image," with certain exceptions); Servicemember Intimate Privacy Protection Act, H.R. 1588, 115th Cong. (2017), [] (proposing to "amend the Uniform Code of Military Justice to prohibit the nonconsensual distribution of private sexual images").

         II. Vermont's Statute

         ¶ 5. Vermont's law, enacted in 2015, makes it a crime punishable by not more than two years' imprisonment and a fine of $2, 000 or both to "knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm." 13 V.S.A. § 2606(b)(1).[2] "Nude" and "sexual conduct" are both expressly defined. The law makes clear that "[c]onsent to recording of the visual image does not, by itself, constitute consent for disclosure of the image." Id. Violation of § 2606(b)(1) is a misdemeanor, unless a person acts "with the intent of disclosing the image for financial profit," in which case it is a felony.

         ¶ 6. Section 2606 does not apply to:

(1) Images involving voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy.
(2) Disclosures made in the public interest, including the reporting of unlawful conduct, or lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment.
(3) Disclosures of materials that constitute a matter of public concern.
(4) Interactive computer services, as defined in 47 U.S.C. § 230(f)(2), or information services or telecommunications services, as defined in 47 U.S.C. § 153, for content solely provided by another person. This subdivision shall not preclude other remedies available at law.

Id. § 2606(d)(1)-(4).[3]

         ¶ 7. The law also provides a private right of action "against a defendant who knowingly discloses, without the plaintiff's consent, an identifiable visual image of the plaintiff while he or she is nude or engaged in sexual conduct and the disclosure causes the plaintiff harm." Id. § 2606(e)(1). In such cases, the court may order equitable relief, including restraining orders and injunctions, "[i]n addition to any other relief available at law." Id. § 2606(e)(2).

         III. Facts and Proceedings Before the Trial Court

         ¶ 8. In late 2015, defendant was charged by information with violating 13 V.S.A. § 2606(b)(1). In support of the charge, the State submitted an affidavit from a police officer and a sworn statement from complainant, which was incorporated into the officer's affidavit by reference. The parties agreed that the trial court could rely on these affidavits in ruling on the motion to dismiss; the parties later stipulated to certain additional facts as well.

         ¶ 9. The police officer averred as follows. Complainant contacted police after she discovered that someone had posted naked pictures of her on a Facebook account belonging to Anthony Coon and "tagged" her in the picture.[4] Complainant called Mr. Coon and left a message asking that the pictures be deleted. Shortly thereafter, defendant called complainant back on Mr. Coon's phone; she called complainant a "moraless pig" and told her that she was going to contact complainant's employer, a child-care facility. When complainant asked defendant to remove the pictures, defendant responded that she was going to ruin complainant and get revenge.

         ¶ 10. Complainant told police that she had taken naked pictures of herself and sent them to Mr. Coon through Facebook Messenger. She advised that the pictures had been sent privately so that no one else could view them. Defendant admitted to the officer that she saw complainant's pictures on Mr. Coon's Facebook account and that she posted them on Facebook using Mr. Coon's account. Defendant asked the officer if he thought complainant had "learned her lesson."

         ¶ 11. In her sworn statement, complainant provided additional details concerning the allegations above. She described her efforts to delete the pictures from Facebook and to delete her own Facebook account. Complainant stated that the night before the pictures were publicly posted, she learned through a friend that defendant was asking about her. Defendant described herself as Mr. Coon's girlfriend. Complainant asked Mr. Coon about defendant, and Mr. Coon said that defendant was obsessed with him and that he had never slept with her. Complainant "took it as him being honest so we moved on." The next day, complainant discovered that defendant posted her nude images on Mr. Coon's Facebook page. A judge found probable cause for the charge against defendant in December 2015.

         ¶ 12. In February 2016, defendant filed a motion to dismiss. She argued that 13 V.S.A. § 2606 violated the First Amendment to the U.S. Constitution because it restricted protected speech and it could not survive strict scrutiny. Defendant also asserted that complainant had no reasonable expectation of privacy because she took the pictures herself and messaged them to Mr. Coon without any promise on his part to keep the pictures private. Defendant cited 13 V.S.A. § 2606(d)(1), which provides an exception from liability for individuals who disclose "[i]mages involving voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy."[5]

         ¶ 13. The State opposed the motion. With respect to the First Amendment, the State argued that the expression covered by the statute was not protected speech, and alternatively, that the statute was narrowly tailored to achieve compelling State interests. As to defendant's second argument, the State asserted that complainant had a reasonable expectation of privacy in the pictures. It explained that complainant used an application that allows one Facebook user to privately send text messages to another Facebook user, and it argued that complainant reasonably expected that only Mr. Coon would access the pictures. The pictures only became public, the State contended, because defendant logged into Mr. Coon's Facebook account without permission, accessed his private messages, and then posted the pictures on Mr. Coon's public feed where other Facebook users could view them. The State further argued that the reasonable expectation of privacy contemplated by the statute concerned the "place" where the pictures were taken, not the method by which the pictures were initially shared. It argued that the method of initial publication was relevant to whether complainant consented to defendant's disclosure under § 2606(b)(1), but complainant unquestionably did not consent to the disclosures here. Finally, the State asserted that the question of whether complainant had a reasonable expectation of privacy-either when the pictures were first taken or when they were later sent to Mr. Coon-was a question of fact that was not appropriate for resolution on a motion to dismiss.

         ¶ 14. At the court's request, defendant and the State later stipulated to the following additional facts for purposes of the motion to dismiss: complainant sent the photographs to Mr. Coon on October 7, 2015. The photographs were posted on a public Facebook page on October 8, 2015. Complainant was not in a relationship with Mr. Coon at the time the photographs were sent to him. Defendant did not have permission to access Mr. Coon's Facebook account. Mr. Coon believed that defendant accessed his Facebook account through her telephone, which had Mr. Coon's password saved.

         ¶ 15. Within this factual context, the trial court considered defendant's facial challenge to 13 V.S.A. § 2606 under the First Amendment. The court concluded that § 2606 imposed a content-based restriction on protected speech, which required the State to show that the law is "narrowly tailored to promote a compelling Government interest," and there is no "less restrictive alternative" available that would serve the Government's purpose. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000); see also Williams-Yulee v. Fla. Bar, U.S., 135 S.Ct. 1656, 1665-66 (2015) (explaining State bears burden of showing statute survives strict scrutiny). Assuming that a compelling governmental interest existed, the court concluded that the State failed to show that there were no less restrictive alternatives available, or to address why civil penalties, such as those set out in 13 V.S.A. § 2606(e), were not reasonable and effective alternatives. It thus concluded the statute did not survive strict scrutiny and dismissed the State's charges.

         ¶ 16. The court did not address defendant's assertion that complainant had no reasonable expectation of privacy in her nude photographs under 13 V.S.A. § 2606(d)(1). It did note, however, that the facts of this case were not a clear example of the "typical revenge porn case" because complainant sent the photographs to a person with whom she had a past but not present relationship. The court noted that complainant would not have known Mr. Coon's relationship status, the effect that such photographs might have on that relationship, or who might have access to his Facebook account.

         ¶ 17. The State challenges the court's dismissal of its charges through a petition for extraordinary relief requesting that we review the trial court's ruling that § 2606 is unconstitutional.[6]

         IV. Facial Validity of Section 2606

         ¶ 18. On appeal, the only issue the parties have briefed is the facial challenge to § 2606. First, the State argues that nonconsensual pornography, as defined in the Vermont statute, falls outside of the realm of constitutionally protected speech for two reasons: such speech amounts to obscenity, and it constitutes an extreme invasion of privacy unprotected by the First Amendment. Second, the State argues that even if nonconsensual pornography falls outside of the categorical exclusions to the First Amendment's protection of free speech, the statute is narrowly tailored to further a compelling State interest. Defendant counters each of these points.

         ¶ 19. The facial constitutionality of a statute presents a pure question of law that we review without deference to the trial court. State v. Tracy, 2015 VT 111, ¶ 14, 200 Vt. 216, 130 A.3d 196. To succeed in a typical facial attack, defendant would have to establish "that no set of circumstances exists under which [§ 2606] would be valid," or that the statute lacks any "plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 472 (2010) (quotations omitted). The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review. Although we focus our analysis on whether the statute has a "plainly legitimate sweep," our analysis does not ultimately turn on which standard of review we apply to this facial challenge.

         ¶ 20. The First Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I; Thornhill v. Alabama, 310 U.S. 88, 95 (1940). This protection applies to expression without regard "to the truth, popularity, or social utility of the ideas and beliefs which are offered." Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 444-45 (1963). For that reason, "[c]ontent-based regulations are presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

         ¶ 21. The protections of the First Amendment are not, however, absolute. The U.S. Supreme Court has "long recognized that the government may regulate certain categories of expression consistent with the Constitution." Virginia v. Black, 538 U.S. 343, 358 (2003). These well-defined and narrow categories of expression have "such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 358-59 (quoting R.A.V., 505 U.S. at 382-83). Among the speech categorically subject to some content-based restrictions are advocacy directed to and likely to incite imminent lawless action, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curium); true threats, Watts v. United States, 394 U.S. 705, 708 (1969) (per curium); obscenity, Roth v. United States, 354 U.S. 476, 483 (1957); and child pornography, New York v. Ferber, 458 U.S. 747, 763-64 (1982). Those regulations directed at other speech that is not categorically excluded from the broad protection of the First Amendment may stand only if they are narrowly tailored to serve a compelling government interest. R.A.V., 505 U.S. at 395.

         ¶ 22. For the reasons set forth below, we conclude that "revenge porn" does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

         A. Categorical Exclusions

         1. Obscenity

         ¶ 23. Although some nonconsensual pornography may meet the constitutional definition of obscenity, we reject the State's contention that the Vermont statute categorically regulates obscenity and is thus permissible under the First Amendment. The purposes underlying government regulation of obscenity and of nonconsensual pornography are distinct, the defining characteristics of the regulated speech are accordingly quite different, and we are mindful of the U.S. Supreme Court's recent rejection of efforts to expand the definition of obscenity to include new types of speech that may engender some of the harms of obscenity.

         ¶ 24. The Supreme Court has recognized the government's "legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." Miller v. California, 413 U.S. 15, 18-19 (1973) (footnote omitted). The Court has consistently recognized that a state's interest in regulating obscenity relates to protecting the sensibilities of those exposed to obscene works, as opposed to, for example, protecting the privacy or integrity of the models or actors depicted in obscene images. See, e.g., Ferber, 458 U.S. at 756 ("The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the 'sensibilities of unwilling recipients' from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws.").

         ¶ 25. By contrast, a state's interest in regulating nonconsensual pornography has little to do with the sensibilities of the people exposed to the offending images; the State interest in this case focuses on protecting the privacy, safety, and integrity of the victim subject to nonconsensual public dissemination of highly private images. In that sense, Vermont's statute is more analogous to the restrictions on child pornography that the Supreme Court has likewise categorically excluded from full First Amendment protection. See id. 756-59 (recognizing that restrictions on distributing child pornography that is not otherwise obscene serve State's compelling interest in preventing sexual exploitation and abuse of children by, among other things, protecting children from harm Flowing from circulation of images).

         ¶ 26. Given these disparate interests, the test for obscenity that may be regulated consistent with the First Amendment is different from that for nonconsensual pornography under the Vermont statute. In considering whether expression is obscene for the purposes of the categorical exclusion from the full protections of the First Amendment, a trier of fact must consider:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Miller, 413 U.S. at 24 (quotation and citations omitted). 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. See 13 V.S.A. § 2606(b)(1) (disclosure is prohibited if undertaken with intent to "harm, harass, intimidate, threaten, or coerce the person depicted"). Although, by definition, the nonconsensual pornography must include images of genitals, the pubic area, anus, or female nipple, or depictions of sexual conduct as defined in 13 V.S.A. §§ 2606(a)(3)-(4), 2821, those depictions need not appeal to the prurient interest applying contemporary community standards or be patently offensive in and of themselves. We agree with the State's assertion that the privacy invasion and violation of the consent of the person depicted in revenge porn are offensive, but the viewer of the images need not know that they were disseminated without the consent of the person depicted in order to satisfy the revenge porn statute. Although the context in which images are disseminated may inform the obscenity analysis, the circumstances of their procurement and distribution fall outside of the typical obscenity assessment. For these reasons, the category of obscenity is ill-suited to include the nonconsensual pornography regulated here.

         ¶ 27. We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court's reluctance to expand the scope of obscenity on the basis of a purpose-based analysis. Although images constituting nonconsensual pornography need not meet the constitutional standard for obscenity, they do, by definition, involve portrayals of sexual conduct or images of intimate sexual organs. In addition, the types of images at issue here have not historically enjoyed First Amendment protection. See Stevens, 559 U.S. at 469-72 (rooting constitutional analysis in part in historical protections, or absence of protections, for particular category of speech). However, the Supreme Court has recently expressed its reluctance to expand the category of obscenity to sweep in content not previously included within that category. See Brown, 564 U.S. at 792-94 (rejecting suggestion that violent video games can be included within category of obscenity because violence is distinct from obscenity that Constitution permits to be regulated). The Court characterized the State as attempting "to shoehorn speech about violence into obscenity," when the regulated video games were not obscene as to youth nor subject to some other legitimate proscription. Id. at 793-95.

         ¶ 28. 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.

         2. Extreme Invasion of Privacy

         ¶ 29. Although many of the State's arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

         ¶ 30. The Supreme Court recognized in Stevens that there may be "some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law." 559 U.S. at 472. In deciding whether to recognize a new category outside the First Amendment's full protections for depictions of animal cruelty, the Court focused particularly on the absence of any history of regulating such depictions, rather than the policy arguments for and against embracing the proposed new category. Id. at 469; see also Williams-Yulee, __ U.S. at__, 135 S.Ct. at 1666-67 ("[A] history and tradition of regulation are important factors in determining whether to recognize new categories of unprotected speech." (quotation omitted)); United States v. Alvarez, 567 U.S. 709, 722 (2012) ("Before exempting a category of speech from the normal prohibition on content-based restrictions, . . . the Court must be presented with persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.").

         ¶ 31. The State makes a persuasive case that United States legal history supports the notion that states can regulate expression that invades individual privacy without running afoul of the First Amendment. It points to a host of statements by the Supreme Court over the years suggesting that the government may regulate speech about purely private matters that implicates privacy and reputational interests, an influential 1890 law review article by Samuel Warren and Louis Brandeis recognizing the right to ...

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