If I were to write a penal statute that was a content-based restriction on speech, I would come prepared with an explanation of how the statute passed constitutional muster, since such restrictions are presumptively invalid.
The proponents of revenge-porn-criminalization statutes never have picked a constitutional justification for their statutes. Instead they have, in post after article after column, thrown a bunch of possible justifications at the wall, hoping that something will stick.
When I visited the topic in January, Danielle Citron had written an article on Forbes.com entitled “Debunking the First Amendment Myths Surrounding Revenge Porn Laws.” In it she threw a couple of theories against the wall: “disclosing private communications about purely private matters” and “confidentiality.”
In a lengthy post fisking Citron, I wrote “Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.”
Now Citron has made another run at it, highlighting confidentiality. So I guess it’s time to write a post on that.
“Breach of confidentiality” is not a category of speech that the Supreme Court has recognized as unprotected. Citron hangs her confidentiality hat on Cohen v. Cowles Media, in which the issue was whether the First Amendment barred damages against a newspaper for a violation of its promise of confidentiality (spoiler: it did not).
Cohen is a civil case; those who would criminalize speech like to pretend that the rules applicable in civil cases also apply in criminal cases. This is untrue. Even in civil cases, the rules are different depending on whether there is money at stake, or a prior restraint. In civil cases, there are no as-written attacks on statutes, but the civil proceeding most similar to an as-written attack on a statute is an attack on a prior restraint: when the legislature passes a content-based restriction on speech, the effect is the same as that of a court issuing a prior restraint on speech, except much broader.
And as Justice Brennan wrote in his concurrence to Nebraska Press Association v. Stuart:
[T]here is effectively an absolute prohibition of prior restraints of publication of Any material otherwise covered within the meaning of the free press guarantee of the First Amendment.
While there is no absolute prohibition of content-based penal restrictions on speech, such restrictions are presumed to be invalid and subjected to strict scrutiny. Civil judgments in cases between private parties—as in Cohen v. Cowles—are not subject to such scrutiny.
Of Cohen, Citron writes, “Breaches of confidentiality have no First Amendment salience.” I would go further: breaches of confidentiality have no First Amendment relevance. Cohen is a red herring. It did not find a “breach of confidentiality” exception to the First Amendment. Rather, Cohen was decided on the unexceptional principle that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”
We can contract around the First Amendment. That is why we can criminalize breaches of confidentiality related to health data (HIPAA), federal agency records (the Privacy Act of 1974), and nude images.
So what about HIPAA? What about the Privacy Act?
42 USC § 1320 d-6 criminalizes the wrongful disclosure of individually identifiable health information. 5 USC § 552a criminalizes the prohibited disclosure of individually identifiable information by an officer or employee of an agency. It’s an interesting question whether either content-based restriction on speech passes constitutional muster; neither has been tested yet. So saying that we can criminalize breaches of confidentiality related to nude images for the same reason that we can criminalize breaches of confidentiality related to other things begs the question.
And that—Cohen, HIPAA, Privacy Act—is the full extent of Citron’s confidentiality argument. An irrelevant case and two untested statutes.
If the government wrote a penal statute of general applicability forbidding all breaches of confidentiality regardless of content, revenge porn could be punished under that statute. The statute would not be subjected to strict scrutiny under the First Amendment because it would not be content-based.
But revenge-porn statutes are by definition content-based. Citron’s proposed “criminal law [that] would apply only to publication of nude images in circumstances where the perpetrator and the victim had an implicit or explicit understanding that the image would be kept confidential” would be a content-based (“nude images”) restriction on speech, and therefore presumptively invalid.
The government has the burden of showing how a content-based restriction on speech is constitutional. To do so it must show that there is not a real and substantial set of potential unconstitutional applications of the statute—that is, applications to protected speech.
The Supreme Court has listed the narrow categories of speech that it recognizes as unprotected:
- Advocacy intended, and likely, to incite imminent lawless action;
- Speech integral to criminal conduct;
- So-called “fighting words”;
- Child pornography;
- True threats; and
- Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”
“Violations of privacy” are not a category of unprotected speech.
“Intentional infliction of emotional distress” is not a category of unprotected speech.
“Breaches of confidence” is not a category of unprotected speech.
Eugene Volokh’s suggestion that nudity posted without consent constitutes obscenity is “fascinating” only because it’s a dumb idea from a smart guy. No revenge-porn criminalization statute I’ve seen includes the elements of obscenity, but if revenge porn were obscene then current obscenity statutes could be used to deal with it.
Some revenge porn might incidentally fall into a category of unprotected speech—might be obscene, might be child pornography, might be defamatory—but revenge porn qua revenge porn fits into no category of unprotected speech, and so is protected.
Citron writes, “What about the argument that statutes proscribing the unauthorized publication of nude photos require an intent to harm? The ACLU has argued that revenge porn laws should only punish intentional, malicious privacy invaders.” Citron herself has taken this position:
Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.
So it’s interesting that Citron now attributes that position to the ACLU, without copping to it herself.
Shame on the ACLU, by the way, for taking that position.