State v. Rebekah S. VanBuren, 214 A.3d 791

Background

Vermont enacted 13 V.S.A. § 2606 (2015), criminalizing knowing disclosure of an identifiable person’s nude or sexual images without consent when done with intent to harm, harass, intimidate, threaten, coerce, or for financial profit, and when disclosure would cause a reasonable person harm; misdemeanor generally, felony if for profit.
The statute contains express exclusions for images taken or shared where there is no reasonable expectation of privacy, disclosures in the public interest (including certain law‑enforcement, legal, and medical contexts), matters of public concern, and certain online service providers; it also creates a private cause of action and equitable relief.
Defendant was charged after she accessed a third party’s Facebook account without permission, posted nude photos that complainant had privately sent to that third party, and called the complainant threatening to “ruin” her; defendant moved to dismiss on First Amendment grounds and argued complainant had no reasonable expectation of privacy.
The trial court dismissed the charge, concluding § 2606 was a content‑based restriction that failed strict scrutiny because the State hadn’t shown no less‑restrictive alternatives existed.
The Vermont Supreme Court (majority) held § 2606 constitutional on its face: it does not fit within existing categorical exclusions (e.g., obscenity) but survives strict scrutiny as narrowly tailored to a compelling state interest; however, the Court affirmed dismissal on alternate grounds — the State failed to make a prima facie showing that the complainant had a reasonable expectation of privacy in the photos she sent to the third party.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Facial First Amendment challenge: whether § 2606 is a content‑based restriction that is unconstitutional	§ 2606 regulates nonconsensual pornography that is either unprotected (analogous to obscenity or an extreme invasion of privacy) or, if protected, is narrowly tailored to a compelling interest	Content‑based restriction of protected speech that cannot survive strict scrutiny; less‑restrictive civil remedies exist	Majority: statute is content‑based but constitutional on its face — not obscenity, not a new categorical exclusion, and survives strict scrutiny; dissent would hold statute facially invalid
Whether nonconsensual porn is categorically unprotected (obscenity or new category)	Should be regarded as outside First Amendment protection because it resembles obscenity or is an extreme privacy invasion	Not obscene in many cases; Supreme Court has refused to create new categories of unprotected speech	Court: not obscenity; declines to create new categorical exclusion and leaves that to U.S. Supreme Court
Whether § 2606 is narrowly tailored to a compelling state interest	Protecting privacy, safety, and severe harms from dissemination of intimate images is a compelling interest; statute has multiple limiting elements (defined content, intent, harm, privacy‑expectation exclusion, public‑interest/public‑concern carveouts)	Criminal sanctions are unnecessary because civil remedies suffice; statute burdens more speech than necessary	Court: compelling interest and narrowly tailored (including narrowing construction that distributions by the subject that undermine privacy are excluded); criminal penalties do not make it automatically overbroad
As‑applied: whether State proved complainant had a reasonable expectation of privacy (prima facie)	Facts and stipulations still allow jury could find a reasonable expectation of privacy; remand to develop evidence under narrowing construction	Complainant voluntarily sent the photos to the third party; stipulation shows they were not in a relationship — no reasonable expectation of privacy	Court: State failed to show prima facie that complainant had a reasonable expectation of privacy; affirmed dismissal of the charge

Key Cases Cited

United States v. Playboy Entm’t Grp., 529 U.S. 803 (content‑based restrictions require strict scrutiny)
Williams‑Yulee v. Fla. Bar, 575 U.S. 433 (narrow tailoring/compelling interest analysis for content‑based restrictions)
R.A.V. v. City of St. Paul, 505 U.S. 377 (content‑based regulations presumptively invalid)
Miller v. California, 413 U.S. 15 (obscenity test)
New York v. Ferber, 458 U.S. 747 (child pornography exception to full First Amendment protection)
United States v. Stevens, 559 U.S. 460 (refusal to create new categories of unprotected speech absent historical tradition)
Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (declining to expand unprotected categories)
Alvarez v. United States, 567 U.S. 709 (reluctance to add new unprotected‑speech categories)
Time, Inc. v. Hill, 385 U.S. 374 (privacy vs. free press — narrow/contextual analysis)
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (limitations on punishing publication of truthful public records)
The Florida Star v. B.J.F., 491 U.S. 524 (punishing publication of lawfully obtained truthful information requires highest order state interest)
Bartnicki v. Vopper, 532 U.S. 514 (speech lawfully obtained about matters of public concern is protected)
Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (lesser First Amendment protection for statements of private concern)
New York Times Co. v. Sullivan, 376 U.S. 254 (foundation for special protection of speech on public issues)
Garrison v. Louisiana, 379 U.S. 64 (free speech in public affairs)
Reno v. ACLU, 521 U.S. 844 (vagueness and chilling effect of criminal communication statutes)