by Hans Bader
Virginia’s revenge-porn law may soon be expanded to punish people for posting embarrassing, revealing images of public figures, such as politicians, if Virginia’s legislature approves HB 926. Doing so would violate the First Amendment, and invite lawsuits by civil-liberties groups like the Foundation for Individual Rights and Expression or the Institute for Justice.
In 2023, the media and blogs covered the fact that a Democratic legislative candidate performed live sex acts on the pornographic web site Chaturbate. That information was leaked to the media, including The Washington Post. Blogs posted images of the candidate showing that she was undressed, but not showing her private parts or anything pornographic. The candidate, Susanna Gibson, lost a close race for the Virginia House of Delegates, but not before arguing that the leak of her porn to the general public was a “sex crime” for which people should be prosecuted under Virginia’s revenge porn statute. “Daniel P. Watkins, a lawyer for Gibson, said disseminating the videos constitutes a violation of the state’s revenge porn law, which makes it a Class 1 misdemeanor to ‘maliciously’ distribute nude or sexual images of another person with ‘intent to coerce, harass, or intimidate.’” But no prosecution was ever brought, perhaps because doing so would violate the First Amendment, and because it might be hard to prove the leak was done with the “intent to coerce, harass, or intimidate,” as opposed to educating voters about a candidate’s past.
Now, Delegate Irene Shin (D-Herndon) wants to rewrite the revenge porn statute so broadly that prosecutors will be able to prosecute not just the leaker, but also bloggers or journalists who posted publicly available images of Gibson showing that she was in a state of undress during her performances at Chaturbate.
Shin would remove the law’s requirement that there be an “intent to coerce, harass, or intimidate,” and the requirement that the posting of images or video be done “maliciously,” so that people like bloggers can be prosecuted even if they have no bad motive. Her bill would also expand the law to cover not just those who leaked or posted sexually graphic videos or images, but also those who posted images that contain no private parts at all, but that showed to viewers that Gibson was in a state of undress. Her bill would seemingly apply to two similar blog posts that discussed the First Amendment problems with applying Virginia’s revenge-porn law to Gibson’s political detractors, and the fact that Gibson may have violated Virginia’s broad prostitution laws by collecting tips from viewers for performing specific sex acts. Each of those blog posts contained a different image of Gibson when she was not wearing any clothes, but that did not show any of her private parts, or any other indecent material.
Shin’s bill, HB 926, would eliminate the words crossed out below from the revenge porn law, and add to it the words in italics:
A. or
Any person who
, with the intent to coerce, harass, or intimidate, maliciouslydisseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is (i) totally nude, or; (ii) in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast,; or (iii) in a state of undress so as not to expose the genitals, pubic area, buttocks, or female breast but such videographic or still image is sexual or sensual in nature where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class1 misdemeanor4 felony. For purposes of this subsection, “another person” includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic.
Many see a political motive behind Shin’s bill. New York criminal defense lawyer Scott Greenfield describes Shin’s legislation as a “bill introduced to protect candidate Susanna Gibson from exposure of her public sex video by eliminating mens rea, etc., from revenge porn law. Flagrant 1st A[mendment] violation to conceal actions of candidate for public office from voter disapproval.”
To remind voters about Gibson’s live-streaming porn, the State Republican Party sent mailers to voters in Gibson’s district that were not sexually explicit, but did contain images taken when Gibson was apparently in a state of undress. The Democratic president of the State Senate argued that this was illegal “revenge porn,” but experts disputed that, pointing out that the images were not “sexually explicit” enough to violate the revenge porn statute, according to Vice. Shin’s bill would arguably prohibit those mailers.
Doing so would violate the First Amendment. Disclosure of Gibson’s pornographic performances is protected by the First Amendment. That’s because there is a strong public interest in reporting on such activity by politicians, as a California Superior Court judge ruled in Hill v. Heslep, which imposed anti-SLAPP sanctions against ex-Congresswoman Katie Hill for filing a lawsuit over the release of photos of her engaging in allegedly inappropriate sexual conduct.
Gibson undoubtedly views the release of such images of her as an invasion of privacy. But as a politician, she is a public figure, and her qualifications and alleged misconduct are matters of public concern. The First Amendment protects speech on subjects of public concern (like images or video of a political candidate) from both prosecutions and lawsuits when the speech is not intentionally or recklessly false, as Supreme Court decisions like Garrison v. Louisiana and Snyder v. Phelps illustrate. The Supreme Court ruled in Time v. Hill that the First Amendment bars lawsuits for invasion of privacy when the speech is a matter of public concern. Photographs are, of course, protected by the First Amendment, as federal court rulings like Fields v. City of Philadelphia make clear.
Gibson does not have a right to prevent non-consensual use of images of her in political campaigns, news coverage, or political commentary. Public figures don’t have a right to prevent others from viewing newsworthy photos of them, even sexually revealing photos, as the First Circuit Court of Appeals made clear in rejecting a copyright claim over the media’s use of nude or nearly nude photos of Miss Universe Puerto Rico. It found that such non-consensual use of her images was fair use, in Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2020)
Hans Bader practices law in Washington, D.C. This column is republished with permission from Liberty Unyielding.
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