Texas Court Strikes Down Revenge Porn Law For Being 'Overbroad'

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A state appeals court in Texas has struck down a 2015 revenge porn law, arguing that it was written too broadly and infringed on free speech protections.

The law made it a misdemeanour in the state to post intimate photos of someone online without their consent. Defendants would be charged with up to a year in jail and fined up to $US4,000 ($5,185). However, Chief Justice James Worthen ruled on Wednesday that the bill violated First Amendment rights, which prohibits limitations on freedom of expression unless the government has a strong interest in the content.

As the Austin-American Statesman reports, prosecutors disputed this by arguing the government has an interest in ensuring people's expectations of privacy are protected. But the appeals court ultimately ruled that the law was too broad, punishing unwitting third parties. Worthen cited a person who forwards a nude photo of a stranger, unaware that the person wanted to keep it private, as an example.

Here's the hypothetical from the ruling, in full:

Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognise her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara's coworker, Donna. Donna recognises Barbara and shows the picture to Barbara's supervisor, who terminates Barbara's employment.

The issue here, argued by the state court, is that the bill in its existing form could punish individuals who shared intimate, private photos without knowing that they were, in fact, private. The court said that the bill "is an invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits."

The Texas Attorney General's Office will reportedly lead efforts in asking the 12th District Court of Appeals to rethink its ruling. If that fails, it may appeal to the state's highest criminal court. In an email to Gizmodo, the Office declined to confirm or deny its plans.

Dr. Mary Anne Franks, a professor at the University of Miami School of Law and a director at the Cyber Civil Rights Initiative, argues that the court "delivered a very poorly reasoned opinion that will hopefully be quickly reversed." While Franks characterised the state law as "not perfect, and could have been drafted more carefully," she says "the court interpreted the Texas statute in an unjustifiably aggressive and expansive way."

A number of stories from revenge porn victims served as the catalyst behind the law, but one victim in particular has been named as the prevailing inspiration. Hollie Toups found 10-year-old nude photos of herself online in 2012, which were posted without her consent, along with personal information like her name, city, and links to social media accounts. The website which hosted the photos allegedly wouldn't take them down unless she paid them $US500 ($648), which she refused to do, prompting them to dox her home address.

"You're being judged and shamed," Toups told BBC. "It erases the unspoken boundary of strangers, people think they know who you are and what you want, they approach you at will."

Toups and other women who found their nude photos posted on the website without their consent sought help from law enforcement officials and attorneys, but were reportedly told that they couldn't do anything to help and were shamed for taking the photos to begin with. The lack of legal recourse is why criminalizing revenge porn on state and federal levels is crucial for victims.

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