Free Speech v. Privacy Rights Concerns in California’s “Revenge Porn” Legislation

By: Elaine Ding

As California State Senator Canella adequately put it, “the law does not keep up with […] technology.”  SB 255 is the California Legislature’s attempt to counter the growing trend of “revenge porn,” a phenomena which generally occurs after a bad break-up where one person seeks revenge by posting sexually explicit images and videos of the other person online.  Senator Canella authored the bill after being approached by a constituent whose ex posted photos that were “intimate in nature” online.  After doing some research, Senator Canella discovered that not only is revenge porn much more common than he realized, but it is not illegal.

While California law allows a victim to seek remedy in civil court, often time victims are “too mortified and embarrassed” to pursue the issue in a public courtroom in addition to the fact that it is both expensive and time-consuming.  The current law does not provide a tool for law enforcement to protect victims from revenge porn.

Canella’s bill would amend Section 653.2 of the Penal Code, providing that:

“Any person who photographs or records by any means the image of another, identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress would constitute disorderly conduct subject to that same punishment.”

SB 255 makes such acts a criminal misdemeanor punishable by six months in jail and a $1,000 fine for a first offense, with a year in jail and a $2,000 fine for repeat violations.  The bill was introduced as an urgency statute and would take effect immediately if passed.

Although SB 255 passed the Senate with a vote of 37-1 on August 15, 2013, drawing the support of organizations like the California Partnership to End Domestic Violence and the California Sheriffs’ Association, there are some very real concerns about the applicability of the bill.  Senator Yee, the only Senator to vote against the bill, highlighted the primary issue of the legislation is its potential to undermine First Amendment freedom of speech.  “While I appreciate the intent of this legislation, I feel it was too broadly drawn and could potentially be used inappropriately to censor free speech.”  In opposition to the bill, the American Civil Liberties Union stated that “the posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected […] the speech must constitute a true threat or violate another otherwise lawful criminal law, such as a stalking or harassment statute, in order to be made illegal. The provisions of this bill do not meet that standard.”

Key issues with the earlier version of the legislation centered on the language which originally stated;

“Any person who photographs or records by any means the image of another, identifiable person without his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, where the distribution of the image would cause a reasonable person to suffer serious emotional distress.”

According to Brad Greenberg, an intellectual property and media law researcher at Columbia University Law School, the bill’s original language suggested that it would apply only to a narrow set of situations in which the victim did not consent to being photographed.  But frequently the victim did not object to the original recording, rather the issue arises with the private image or video being made public.

Since the Senate vote on August 15, lawmakers realized the bill was flawed and addressed the concerns Mr. Greenberg articulated in the revised version.  Instead of focusing on whether the victim consented to being recorded, the new version relies on whether the person agreed to distribute the images to other people.  It also further clarifies that the person leaking the sensitive material intended to cause serious emotional distress.  Id.  While Greenberg concedes that the new version does provide “more clarity,” he notes that the bill is still unclear on how to deal with situations where the sexually explicit material was recorded by the victim, himself/herself.

A bill similar to SB 255 failed in Florida earlier this year after similar First Amendment concerns were raised.  Despite these potential issues, Canella believes that “this [problem] goes way beyond free speech,” and these concerns will not be an issue with this bill.  SB 255, and legislation like it, is forcing lawmakers to address the issue of balancing free speech and privacy rights in the rapidly developing world of technology. It will be interesting to see how lawmakers will ultimately weigh in on the matter.

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