Revenge Porn and the 1 st Amendment

1. Revenge Porn and the 1st Amendment • Section 123.456 (aka proposed Florida statute): • Vagueness & Over breadth challenges – nudity/harass are not defined so could have problems of (1) chilling, (2) arbitrary application, (3) sweeping in obviously protected speech. • Underinclusion – the statute only applies to websites but not email or billboards, etc. So if the court were to analyze this as a CB reg of high value speech (since it doesn’t obviously involve low value category), the law may not be narrowly tailored. • Is this statute better? An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

2. Invasion of Privacy Tort Option for Anna • Anna could possibly bring an invasion of privacy tort suit against Blake – Florida Star didn’t rule that the 1A barred individual suits between private citizens when non-newsworthy information is involved. • Fl0rida Star was primarily concerned with ensuring that newspapers that came across arguably newsworthy private information in a legal manner were not punished by law criminalizing such action per se. • The tort of public disclosure of private facts arises when one person reveals information that is not of public concern where the release would offend a reasonable person. • But there are multiple ways to defeat the tort claim: • Newsworthiness. - the information is of legitimate public concern (see slide 5) • Consent - P consented in some way to publication (this is where some of the messiness we saw yesterday can come up) • Publication doesn't outrage community notions of decency; not offensive to a reasonable person • Event took place in public/P hasn’t really kept facts private

3. Hurdles For Victims of Revenge Porn • Why doesn’t Anna sue the website GetBackatYourEx.comfor invasion of privacy in a civil suit? • Comm. Decency Act ' 230(c)(1) - No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. • http://www.law.cornell.edu/uscode/text/47/230 • Miscellaneous issues: • Is it extortion if the website operator agrees to take down the nude pictures but ONLY if Anna pays them a fee? • Other options for Anna? • Get police to prosecute for obscenity? • Lawsuit against Blake for or IIED? (See next discussion)

4. Intentional Infliction of Emotional Distress – Hustler v. Falwell • The ad: http://law2.umkc.edu/faculty/projects/ftrials/falwell/campariL.jpg • Does it meet the elements of IIED? • Defendant's conduct (1) is intentional/reckless; (2) offends generally accepted standards of decency or morality (is outrageous); (3) causes P’s emotional distress; and (4) that emotional distress is severe • SCT says Falwell (well-known public figure) can’t sue for IIED “by reason of publications such as the one here at issue” unless they also show the publication “contained a false statement of fact made with actual malice re its truth/falsity.” • Why does unanimous SCT use such a standard here? • Why don’t the elements of the tort protect against censorship? • Intentional conduct • Outrageous behavior • Severe distress

5. To what extent does (should) Hustler’s IIED reasoning extend to non-public figures? • Should private citizens have similar restrictions on their ability to sue for IIED when the basis of the tort is speech? • Snyder – protestors near funeral held offensive signs pertaining to the funeral if not directed specifically to the deceased. Father (private figure) brings IIED lawsuit • SCT (8-1) rejects IIED liability in this instance • “Whether the 1A prohibits holding WBC liable for its speech in this case turns largely on whether that speech is of public or private concernas determined by all the circumstances of the case.” [SCT notes that former is at the heart of the 1A] • Court looks at “context, form, and content” of speech to see if is “public concern” • Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social or other concern to the community” OR • When it “is a subject of legitimate news interest; that is a subject of general interest and of value and concern to the public.” • Was SCT right to say WBC was not liable for IIED? How does ANNA fare under these cases?