Is New Jersey’s Revenge-Porn Statute Constitutional?

In Are Statutes Criminalizing Revenge Porn Constitutional? I considered Mary Anne Franks’s proposed statute aimed at revenge porn, and concluded that lower courts considering the constitutionality of the statute will be constrained by current Supreme Court precedent to find the statute unconstitutional.

At least three states—New Jersey, California, and Texas—have statutes that would criminalize revenge porn. I’ve discussed the unconstitutionality of Texas’s improper-photography statute before, and California’s statute is newer, so let’s turn our attention first to New Jersey’s third-degree-invasion-of-privacy statute.

Here’s the relevant portion:

(c) 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. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.

d.     It is an affirmative defense to a crime under this section that:

(1)     the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c., and

(2)     the actor acted with a lawful purpose.

New Jersey’s statute comes with a loophole big enough to drive a truck through: Continue reading Is New Jersey’s Revenge-Porn Statute Constitutional?

Doin’ it Wrong on Twitter (updated)

My friend "Gideon" (of A Public Defender fame) asked an intriguing question on Twitter:

@tbuhl's twitter profile proclaims "no tweets are publishable". What does that mean?

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By "not publishable," I suspected that "investigative journalist" Teri Buhl (you'll see the reason for the doubt quotes in a moment) meant "not worth publishing," which is ironic and funny because posting on Twitter is publication.

But no. Buhl responded to Gideon's inquiry (read from bottom to top):


So not "ironic and funny," but "ironic and inaccurate." Because, as any journalist knows, posting on Twitter is publication, and "I don't want my tweets in a story or on a blog" is not the same as "you may not republish what I have published."

Strike that. Gideon replied, "ok thanks. I don't know how you prevent that, though. I could write a post quoting you":


and Buhl showed her true colors, threatening to sue Gideon for doing so:


I have had enough people sue me, grieve me, threaten to sue me, and try to sue me over things I've posted here that I have come to see defending such cases as part of my duty to uphold our unalienable right to free speech.

Teri Buhl, by contrast, cares so little for free speech that she, in all seriousness, threatens to sue an anonymous public defender if he writes a blog post quoting words that she publishes on Twitter.


Shame on you, Ms. Buhl. Is "investigative journalist" code for "ignorant bully"?


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Clearly Ms. Buhl thinks that she's entitled to answers that are none of her business, and can't take "we've got nothing to discuss" for an answer. This, then, is not a shock.

I guess you could see this as "investigative journalism"…if it were dark and you'd had a few beers and you turned your head just right and squinted. 

Here's the court docket.

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And here's her lawyer, Frank DiScala. I hope he's advancing a free-speech defense, because clearly the journal of a teenage girl is "publishable" in a way that public tweets are not.

[See also this followup post.]