State of Vermont v. Rebekah S. VanBuren
No. 2016-253
Supreme Court of Vermont
September 14, 2018
2018 VT 95
David A. Howard, J.
Original Jurisdiction. Superior Court, Bennington Unit, Criminal Division. March Term, 2017. April Term, 2019.
NOTICE: This opinion is subject to motions for reargument under
William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, and Erica Marthage, Bennington County State‘s Attorney, and Alexander Burke, Deputy State‘s Attorney, Bennington, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellee.
Bridget C. Asay of Donofrio Asay PLC, Montpelier, for Amici Curiae Cyber Civil Rights Initiative and Vermont Network Against Domestic and Sexual Violence.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
I. “Revenge-Porn,” or Nonconsensual Pornography Generally
¶ 2. “Revenge porn” is a popular label describing a subset of nonconsensual pornography published for vengeful purposes. “Nonconsensual pornography” may be defined generally as “distribution of sexually graphic images of individuals without their consent.” D. Citron & M. Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 346 (2014). The term “nonconsensual pornography” encompasses “images originally obtained without consent (e.g., hidden recordings or recordings of sexual assaults) as well as images originally obtained with consent, usually within the context of a private or confidential
¶ 3. This problem is widespread, with one recent study finding that “4% of U.S. internet users—roughly 10.4 million Americans—have been threatened with or experienced the posting of explicit images without their consent.” See Data & Society, “New Report Shows That 4% of U.S. Internet Users Have Been a Victim of ‘Revenge Porn,’ ” (Dec. 13, 2016), https://datasociety.net/blog/2016/12/13/nonconsensual-image-sharing/ [https://perma.cc/26FC-937V]; see also C. Alter, supra (stating that “Facebook received more than 51,000 reports of revenge porn in January 2017 alone“). Revenge porn is overwhelmingly targeted at women. D. Citron & M. Franks, supra, at 353-54 (citing data that victims of revenge porn are overwhelmingly female).
¶ 4. Forty states, including Vermont, have enacted legislation to address this issue. See Cyber Civil Rights Initiative, 40 States + DC Have Revenge Porn Laws, https://www.cybercivilrights.org/revenge-porn-laws/ [https://perma.cc/83UK-KKUS] (collecting state statutes). Federal legislation has also been proposed. See Intimate Privacy Protection Act of 2016, H.R. 5896, 114th Cong. (2016), https://www.congress.gov/bill/114th-congress/house-bill/5896 [https://perma.cc/RM6V-865X] (proposing to “amend the federal criminal code to make it unlawful to knowingly distribute a photograph, film, or video of a person engaging in sexually explicit conduct or of a person‘s naked genitals or post-pubescent female nipple with reckless disregard for the person‘s lack of consent if the person is identifiable from the image itself or from information displayed in connection with the image,” with certain exceptions); Servicemember Intimate Privacy Protection Act, H.R. 1588, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/1588 [https://perma.cc/7ZBK-KT49] (proposing to “amend the Uniform Code of Military Justice to prohibit the nonconsensual distribution of private sexual images“).
II. Vermont‘s Statute
¶ 5. Vermont‘s law, enacted in 2015, makes it a crime punishable by not more than two years’ imprisonment and a fine of $2,000 or both to “knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.”
¶ 6. Section 2606 does not apply to:
- (1) Images involving voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy.
- (2) Disclosures made in the public interest, including the reporting of unlawful conduct, or lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment.
- (3) Disclosures of materials that constitute a matter of public concern.
- (4) Interactive computer services, as defined in
47 U.S.C. § 230(f)(2) , or information services or telecommunications services, as defined in47 U.S.C. § 153 , for content solely provided by another person. This subdivision shall not preclude other remedies available at law.
¶ 7. The law also provides a private right of action “against a defendant who knowingly discloses, without the plaintiff‘s consent, an identifiable visual image of the plaintiff while he or she is nude or engaged in sexual conduct and the disclosure causes the plaintiff harm.”
III. Facts and Proceedings Before the Trial Court
¶ 8. In late 2015, defendant was charged by information with violating
¶ 9. The police officer averred as follows. Complainant contacted police after she discovered that someone had posted naked pictures of her on a Facebook account belonging to Anthony Coon and “tagged” her in the picture.4 Complainant called Mr. Coon and left a message asking that the pictures be deleted. Shortly thereafter, defendant called complainant back on Mr. Coon‘s phone; she called complainant a “moraless pig” and told her that she was going to contact complainant‘s employer, a child-care facility. When complainant asked defendant to remove the pictures, defendant responded that she was going to ruin complainant and get revenge.
¶ 10. Complainant told police that she had taken naked pictures of herself and sent them to Mr. Coon through Facebook
¶ 11. In her sworn statement, complainant provided additional details concerning the allegations above. She described her efforts to delete the pictures from Facebook and to delete her own Facebook account. Complainant stated that the night before the pictures were publicly posted, she learned through a friend that defendant was asking about her. Defendant described herself as Mr. Coon‘s girlfriend. Complainant asked Mr. Coon about defendant, and Mr. Coon said that defendant was obsessed with him and that he had never slept with her. Complainant “took it as him being honest so we moved on.” The next day, complainant discovered that defendant posted her nude images on Mr. Coon‘s Facebook page. A judge found probable cause for the charge against defendant in December 2015.
¶ 12. In February 2016, defendant filed a motion to dismiss. She argued that
¶ 13. The State opposed the motion. With respect to the First Amendment, the State argued that the expression covered by the statute was not protected speech, and alternatively, that the statute was narrowly tailored to achieve compelling State interests. As to defendant‘s second argument, the State asserted that complainant had a reasonable expectation of privacy in the pictures. It explained that complainant used an application that allows one Facebook user to privately send text messages to another Facebook user, and it argued that complainant reasonably expected that only Mr. Coon would access the pictures. The pictures only became public, the State contended, because defendant logged into Mr. Coon‘s Facebook account without permission, accessed his private messages, and then posted the pictures on Mr. Coon‘s public feed where other Facebook users could view them. The State further argued that the reasonable expectation of privacy contemplated by the statute concerned the “place” where the pictures were taken, not the method by which the pictures were initially shared. It argued that the method of initial publication was relevant to whether complainant consented to defendant‘s disclosure under
¶ 15. Within this factual context, the trial court considered defendant‘s facial challenge to
¶ 16. The court did not address defendant‘s assertion that complainant had no reasonable expectation of privacy in her nude photographs under
¶ 17. The State challenges the court‘s dismissal of its charges through a petition for extraordinary relief requesting that we review the trial court‘s ruling that
IV. Facial Validity of Section 2606
¶ 18. On appeal, the only issue the parties have briefed is the facial challenge to
¶ 19. The facial constitutionality of a statute presents a pure question of law that we review without deference to the trial court. State v. Tracy, 2015 VT 111, ¶ 14, 200 Vt. 216, 130 A.3d 196. To succeed in a typical facial attack, defendant would have to establish “that no set of circumstances exists under which [
¶ 20. The First Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech.”
¶ 21. The protections of the First Amendment are not, however, absolute. The U.S. Supreme Court has “long recognized that the government may regulate certain categories of expression consistent with the Constitution.” Virginia v. Black, 538 U.S. 343, 358 (2003). These well-defined and narrow categories of expression have “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. at 358-59 (quoting R.A.V., 505 U.S. at 382-83). Among the speech categorically subject to some content-based restrictions are advocacy directed to and likely to incite imminent lawless action, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curium); true threats, Watts v. United States, 394 U.S. 705, 708 (1969) (per curium); obscenity, Roth v. United States, 354 U.S. 476, 483 (1957); and child pornography, New York v. Ferber, 458 U.S. 747, 763-64 (1982). Those regulations directed at other speech that is not categorically excluded from the broad
¶ 22. For the reasons set forth below, we conclude that “revenge porn” does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.
A. Categorical Exclusions
1. Obscenity
¶ 23. Although some nonconsensual pornography may meet the constitutional definition of obscenity, we reject the State‘s contention that the Vermont statute categorically regulates obscenity and is thus permissible under the First Amendment. The purposes underlying government regulation of obscenity and of nonconsensual pornography are distinct, the defining characteristics of the regulated speech are accordingly quite different, and we are mindful of the U.S. Supreme Court‘s recent rejection of efforts to expand the definition of obscenity to include new types of speech that may engender some of the harms of obscenity.
¶ 24. The Supreme Court has recognized the government‘s “legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” Miller v. California, 413 U.S. 15, 18-19 (1973) (footnote omitted). The Court has consistently recognized that a state‘s interest in regulating obscenity relates to protecting the sensibilities of those exposed to obscene works, as opposed to, for example, protecting the privacy or integrity of the models or actors depicted in obscene images. See, e.g., Ferber, 458 U.S. at 756 (“The Miller standard, like its predecessors, was an accommodation between the State‘s interests in protecting the ‘sensibilities of unwilling recipients’ from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws.“).
¶ 25. By contrast, a state‘s interest in regulating nonconsensual pornography has little to do with the sensibilities of the people exposed to the offending images; the State interest in this case focuses on protecting the privacy, safety, and integrity of the victim subject to nonconsensual public dissemination of highly private images. In that sense, Vermont‘s statute is more analogous to the restrictions on child pornography that the Supreme Court has likewise categorically excluded from full First Amendment protection. See id. 756-59 (recognizing that restrictions on distributing child pornography that is not otherwise obscene serve State‘s compelling interest in preventing sexual exploitation and abuse of children by, among other things, protecting children from harm flowing from circulation of images).
¶ 26. Given these disparate interests, the test for obscenity that may be regulated consistent with the First Amendment is different from that for nonconsensual pornography under the Vermont statute. In considering whether expression is obscene for the purposes of the categorical exclusion from the full protections of the First Amendment, a trier of fact must consider:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a
whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Miller, 413 U.S. at 24 (quotation and citations omitted). The offending disclosures pursuant to Vermont‘s statute, by contrast, need not appeal to the prurient interest or be patently offensive. Typically, their purpose is to shame the subject, not arouse the viewer. See
¶ 27. We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court‘s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis. Although images constituting nonconsensual pornography need not meet the constitutional standard for obscenity, they do, by definition, involve portrayals of sexual conduct or images of intimate sexual organs. In addition, the types of images at issue here have not historically enjoyed First Amendment protection. See Stevens, 559 U.S. at 469-72 (rooting constitutional analysis in part in historical protections, or absence of protections, for particular category of speech). However, the Supreme Court has recently expressed its reluctance to expand the category of obscenity to sweep in content not previously included within that category. See Brown, 564 U.S. at 792-94 (rejecting suggestion that violent video games can be included within category of obscenity because violence is distinct from obscenity that Constitution permits to be regulated). The Court characterized the State as attempting “to shoehorn speech about violence into obscenity,” when the regulated video games were not obscene as to youth nor subject to some other legitimate proscription. Id. at 793-95.
¶ 28. Given the ill fit between nonconsensual pornography and obscenity, and the Supreme Court‘s reluctance to expand the contours of the category of obscenity, we conclude that the speech restricted by Vermont‘s statute cannot be fairly categorized as constitutionally unprotected obscenity.
2. Extreme Invasion of Privacy
¶ 29. Although many of the State‘s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion
¶ 30. The Supreme Court recognized in Stevens that there may be “some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” 559 U.S. at 472. In deciding whether to recognize a new category outside the First Amendment‘s full protections for depictions of animal cruelty, the Court focused particularly on the absence of any history of regulating such depictions, rather than the policy arguments for and against embracing the proposed new category. Id. at 469; see also Williams-Yulee, __ U.S. at __, 135 S. Ct. at 1666-67 (“[A] history and tradition of regulation are important factors in determining whether to recognize new categories of unprotected speech.” (quotation omitted)); United States v. Alvarez, 567 U.S. 709, 722 (2012) (“Before exempting a category of speech from the normal prohibition on content-based restrictions, . . . the Court must be presented with persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.“).
¶ 31. The State makes a persuasive case that United States legal history supports the notion that states can regulate expression that invades individual privacy without running afoul of the First Amendment. It points to a host of statements by the Supreme Court over the years suggesting that the government may regulate speech about purely private matters that implicates privacy and reputational interests, an influential 1890 law review article by Samuel Warren and Louis Brandeis recognizing the right to privacy, and a well-established common law tort of publicity given to private life. The State‘s arguments in this regard are well-founded.
¶ 32. The Supreme Court has never struck down a restriction of speech on purely private matters that protected an individual who is not a public figure from an invasion of privacy or similar harms; to the contrary, the Court has repeatedly reconciled the tension between the right to privacy and freedom of expression with an analysis of the specific privacy claims and the public interest in the communications at issue, rather than a broad ruling prioritizing one of these values over another. For example, in Time Inc. v. Hill, the Court considered a civil judgment against Life Magazine based on allegations that the magazine falsely reported that a play about three convicts holding a family hostage depicted the actual experiences of plaintiffs’ family. 385 U.S. 374, 376-77 (1967). The Court concluded that the First Amendment precluded applying state law to redress false reports of matters of public interest absent “proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth.” Id. at 387-88. Of significance here, the Court expressly noted that the case presented “no question whether truthful publication of [revelations that are so intimate and unwarranted in view of the victim‘s position as to outrage the community‘s notions of decency] could be constitutionally proscribed.” Id. at 383 n.7.7
¶
In this sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society. Rather than address the broader question whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, or to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from . . . judicial records which are . . . open to public inspection.
Id. at 491. In concluding that it could not, the Court relied heavily on the importance of the news media in fully and accurately reporting government proceedings, including the administration of justice; the legitimate public interest in judicial proceedings arising from criminal prosecutions; the open and public nature of a trial; the common law exception to a tort action for invasion of privacy when a defendant merely gives further publicity to information about a plaintiff that is already a matter of public record; and the fact that the information at issue was already in the public domain in official court records. Id. at 491-96. The Court emphasized that “[t]he freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business,” held that states may not impose sanctions on the publication of truthful information contained in official court records open to public inspections, and noted the peril of a contrary course that would make public records generally available to the media but forbid their publication at the same time. Id. at 495-96. What is most significant for our purposes today is that the Court declined to adopt a broad rule striking down limits on truthful publications that invade individuals’ privacy, and instead relied very heavily in its analysis on the role of the free press, the significance of the information at issue for effective democracy, and the fact that the information was part of the public record prior to the allegedly offending publication.
¶ 34. More recently, in The Florida Star v. B.J.F., the Court considered a civil judgment against a Florida newspaper for publishing the name of a rape victim that it had obtained from a publicly released police report in violation of a Florida statute. 491 U.S. 524 (1989). The Court emphatically declined to adopt an across-the-board rule that a truthful publication may never be punished consistent with the First Amendment, instead reaffirming that “the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Id. at 532-33. The Court concluded, “if a newspaper lawfully obtains truthful information about a matter of public
¶ 35. Concluding that the defendant had lawfully acquired the name of the rape victim, the Court held that the State did not have a sufficiently overriding interest to warrant imposing liability on the defendant. Id. at 537. The Court acknowledged that the State‘s interests were considerable, but concluded that where the government had itself provided the information, punishing the defendant for publishing it would be especially likely to lead to self-censorship, id. at 538; the breadth of the statute allowed for liability without any finding of scienter or that the disclosure would be highly offensive to a reasonable person, id. at 539; and the statute‘s limitation to dissemination through an “instrument of mass communication” was underinclusive with respect to the State‘s goals. Id. at 540. The Court emphasized the limitations of its holding: “We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense.” Id. at 541.
¶ 36. The Court again considered the clash between privacy rights and the First Amendment‘s protections for free speech in a case in which a radio commentator played a tape of an illegally intercepted telephone conversation between the president of a local teachers’ union and the union‘s chief negotiator during a contentious labor negotiation. Bartnicki v. Vopper, 532 U.S. 514 (2001). The plaintiffs’ damage claims against the radio commentator were based in part on the federal Wiretapping and Electronic Surveillance statute.
¶ 37. The Court acknowledged the government‘s interest in “encouraging the uninhibited exchange of ideas and information among private parties” by protecting the privacy of communications. Id. at 532-33 (quotation omitted). It recognized that “some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private
¶ 38. These U.S. Supreme Court decisions reflect three consistent themes: (1) speech on matters of private concern that implicate the privacy interests of nonpublic figures does not enjoy the same degree of First Amendment protection as speech on matters of public concern or relating to public figures; (2) state laws protecting individual privacy rights have long been established, and are not necessarily subordinate to the First Amendment‘s free speech protections; and (3) the Court is wary of broad rules or categorical holdings framing the relationship between laws protecting individual privacy and the First Amendment.
¶ 39. Two other related sources relied upon by the State, an influential law review article from 1890 and the Restatement (Second) of Torts, reinforce the second of these points—that the notion that the government may protect individual privacy interests without running afoul of the First Amendment has a well-established history in U.S. law. The law review article by Samuel D. Warren and Louis D. Brandeis (before he was appointed to the Supreme Court) argued for the development of an invasion of privacy tort as early as 1890. The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Reviewing various evolutions in the common law, the authors described one of the problems they sought to address:
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops. For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons . . . .
Id. at 195 (footnote omitted) (quotation omitted).
¶ 40. Reviewing existing common law principles and cases, the authors concluded that existing causes of action, such as breach of trust or property-based claims, had long been used to protect privacy interests but were inadequate to fully meet that need in a changing world—where, among other things, “the latest advances in photographic art have rendered it possible to take pictures surreptitiously.” Id. at 211. They proposed to expressly recognize that the invasion of privacy is itself a legal injury giving rise to a right to redress,8 id. at 213, and argued:
The right of one who has remained a private individual, to prevent his public
portraiture, presents the simplest case for such extension;
the right to protect one‘s self from pen portraiture, from a discussion by the press of one‘s private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman‘s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.
¶ 41. The authors elaborated on the right to privacy and its limits. They explained that the right to privacy does not prohibit publication regarding matters of public interest, emphasizing that the purpose of the law should be to protect people “with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever, their position or station, from having matters which they may properly prefer to keep private, made public against their will.” Id. at 214-15. Accordingly, the authors recognized that, for example, “[p]eculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office,” and publishing that a “modest and retiring individual” has a speech impediment or cannot spell may be an unwarranted infringement, but commenting on the same characteristics in a candidate for Congress would not be improper. Id. at 215. They noted that the right to privacy does not prohibit communications that are privileged for purposes of defamation laws, id. at 216; that the right to privacy ceases upon the individual‘s consent to publication of the facts at issue, id. at 218; and that neither truth nor the absence of “malice” are defenses to invasions of privacy. Id.
¶ 42. We describe this article in detail because it is frequently cited as a critical catalyst to the development of right-to-privacy law in this country. See, e.g., Restatement (Second) of Torts § 652A, cmt. a. Several distinct causes of action have arisen to protect the interests of an individual in leading, to a reasonable extent, “a secluded and private life, free from the prying eyes, ears and publications of others.” Id. cmt. b. Most pertinent to the case at hand is the cause of action for “publicity given to private life.” Id. § 652D. In particular, the Restatement explains, “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of . . . privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Id. The Restatement acknowledges that the relationship between § 652D and the First Amendment is not clear. The tort has been widely adopted, including in Vermont. See Lemnah v. Am. Breeders Serv., Inc., 144 Vt. 568, 574, 482 A.2d 700, 704 (1984).
¶ 43. The broad development across the country of invasion of privacy torts, and the longstanding historical pedigree of laws protecting the privacy of nonpublic figures with respect to matters of only private interest without any established First Amendment limitations, distinguish the kinds of privacy-protecting laws at issue here from the law prohibiting depictions of animal cruelty at issue in Stevens, 559 U.S. at 460. In that respect, nonconsensual pornography seems to be a strong candidate for categorical exclusion from full First Amendment protections.
¶ 44. Notwithstanding these considerations, we decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court‘s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.
¶ 45. More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add “depictions of animal cruelty” to the list, rejecting the notion that the court has “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” 559 U.S. at 472. The Court explained, “Maybe there are some categories of speech that have been
historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.” Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.“). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).
¶ 46. More significantly, as set forth more extensively above, see supra, ¶¶ 32-38, in case after case involving a potential clash between the government‘s interest in protecting individual privacy and the First Amendment‘s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court‘s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis, see supra, ¶¶ 47-67, below. But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment‘s full protections.
B. Strict Scrutiny
¶ 47. Our conclusion that nonconsensual pornography does not fall into an existing or new category of unprotected speech does not end the inquiry. The critical question is whether the First Amendment permits the regulation at issue. See, e.g., Williams-Yulee, __ U.S. at __, 135 S. Ct. at 1667-73 (acknowledging solicitation of campaign funds by judicial candidates is not category of unprotected speech under the First Amendment, but concluding restriction on such solicitations was constitutionally permitted because it was narrowly tailored to serve compelling State interest). The remaining question is whether
¶ 48. We conclude that the State interest underlying
¶ 49. Although we decline to identify a new category of unprotected speech on the basis of the above cases, the decisions cited above are relevant to the compelling interest analysis in that they reinforce that the First Amendment limitations on the regulation of speech concerning matters of public interest do not necessarily apply to regulation of speech concerning purely private matters. Time and again, the Supreme Court has recognized that speech concerning purely private matters does not carry as much weight in the strict scrutiny analysis as speech concerning matters of public concern, and may accordingly be subject to more expansive regulation.9
¶ 50. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., a majority of Supreme Court justices concluded that the “recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.” 472 U.S. 749, 762 (1985); id. at 763-64 (Burger, C.J., concurring); id. at 765-774 (White, J., concurring). The plurality explained that the Court‘s conclusion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that the First Amendment limits the reach of state defamation laws was based on the Constitution‘s solicitude for “freedom of expression upon public questions” and the view that “debate on public issues should be uninhibited, robust, and wide open.” Dun & Bradstreet, Inc., 472 U.S. at 755 (quotation omitted). The Court elaborated:
The First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Speech concerning public affairs is more than self-expression; it is the essence of self-government. Accordingly, the Court has frequently affirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection. In contrast, speech on matters of purely private concern is of less First Amendment concern. As a number of state courts, including the court below, have recognized, the role of the Constitution in regulating state libel
law is far more limited when the concerns that activated New York Times and Gertz are absent.
Id. at 759 (alternations, citations, and quotations omitted).
¶ 51. The Court echoed these sentiments more recently and built on this analysis in Snyder v. Phelps, 562 U.S. 443 (2011). In Snyder, the Westboro Baptist Church picketed on public land approximately 1,000 feet from a funeral service for a soldier killed in Iraq. The picketers displayed signs stating, among other things, “Thank God for Dead Soldiers,” “God Hates You,” and “Fags Doom Nations.” Id. at 454. The soldier‘s father could see the tops of the picket signs as he drove to the funeral, although he did not see what was written on them until watching a news broadcast later that night. He sued the church and its leaders (collectively “Westboro“) for various torts, and a jury awarded him five million dollars in compensatory and punitive damages for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.
¶ 52. The Court affirmed the appeals court‘s reversal and judgment for defendants on the basis that the speech was protected by the First Amendment. In reaching its conclusion, the Court explained, “Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.” Id. at 451. After recounting the myriad reasons why speech concerning matters of public concern is “at the heart of the First Amendment‘s protection,” id. at 451-52, the Court considered the status of speech concerning purely private matters:
Not all speech is of equal First Amendment importance, however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest. There is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import.
Id. at 452 (alternations, citations, and quotations omitted).
¶ 53. The Court acknowledged that “the boundaries of the public concern test are not well defined,” and offered the following guiding principles:
Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.
Id. at 453 (citations and quotations omitted).
¶ 54. Considering the content (though not the viewpoint) of the picketers’ signs in context, the Court concluded that the messages plainly related to “broad issues of interest to society at large,” rather than matters of “purely private concern.” Id. at 454 (quotation omitted). The signs conveyed Westboro‘s views concerning
¶ 55. The proscribed speech in this case has no connection to matters of public concern. By definition, the proscribed images must depict nudity or sexual conduct,
¶ 56. Moreover, nonconsensual pornography is remarkably common, and the injuries it inflicts are substantial. A 2014 estimate set the number of websites featuring nonconsensual pornography at 3,000. Revenge Porn: Misery Merchants, The Economist (July 5, 2014), http://www.economist.com/news/international/21606307-how-should-online-publication-explicit-images-without-their-subjects-consent-be [https://perma.cc/93MV-KNWL]. That number has no doubt grown. One recent survey found that that two percent of U.S. internet users have been the victim of nonconsensual pornography—that is, someone actually posted an explicit video or image of them online without their consent. A. Lenhart, M. Ybarra, M. Price-Feeney, Data & Society Research Institute and Center for Innovative Public Health Research, Nonconsensual Image Sharing: One in 25 Americans Has Been a Victim of “Revenge Porn,” 4 (Dec. 13, 2016), https://datasociety.net/pubs/oh/Nonconsensual_Image_Sharing_2016.pdf [https://perma.cc/3995-QXAH]. A survey of victims of nonconsensual pornography found that in over fifty percent of the cases the nude images were published alongside the victim‘s full name and social network profile, and over twenty percent of victims reported that their email addresses and telephone numbers appeared alongside the images. D. Citron & M. Franks, supra, at 350-51.
¶ 57. The harm to the victims of nonconsensual pornography can be substantial. Images and videos can be directly disseminated to the victim‘s friends, family, and employers; posted and “tagged” (as in this case) so they are particularly visible to members of a victim‘s own community; and posted with identifying information such that they catapult to the top of the results of an online search of an individual‘s name. In the constellation of privacy interests, it is difficult to imagine something more private than images depicting an individual engaging in sexual conduct, or of a person‘s genitals, anus, or pubic area, that the person has not consented to sharing publicly. The personal consequences of such profound personal violation and humiliation generally include, at a minimum, extreme emotional distress. See id. at 351 (citing data that over eighty percent of victims report severe emotional distress
¶ 58. Finally, the government‘s interest in preventing the nonconsensual disclosure of nude or sexual images of a person obtained in the context of a confidential relationship is at least as strong as its interest in preventing the disclosure of information concerning that person‘s health or finances obtained in the context of a confidential relationship; content-based restrictions on speech to prevent these other disclosures are uncontroversial and widely accepted as consistent with the First Amendment. Doctors who disclose individually identifiable health information without permission may be subject to a $50,000 fine and a term of imprisonment for up to a year.
¶ 59. For the above reasons, we conclude that the State interest underlying
2. Narrowly Tailored
¶ 60. Section 2606 defines unlawful nonconsensual pornography narrowly, including
¶ 61. The images subject to
¶ 62. Moreover, disclosure is only criminal if the discloser knowingly discloses the images without the victim‘s consent.
¶ 63. In addition, the disclosure must be one that would cause a reasonable person “physical injury, financial injury, or serious emotional distress.”
¶ 64. Two additional limitations assuage any concern that some content meeting all of these requirements may nonetheless implicate a matter of public concern. First, the statute does not purport to reach “[d]isclosures made in the public interest, including the reporting of unlawful conduct, or lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment.”
¶ 65. Finally, to ensure that the statute reaches only those disclosures implicating the right to privacy the statute seeks to protect, it expressly excludes “[i]mages involving voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy.”
¶ 66. In connection with this factor, we offer a narrowing construction, or clarification of the statute to ensure its constitutional application while promoting the Legislature‘s goals. See Tracy, 2015 VT 111, ¶ 28 (noting our obligation to construe statutes to avoid constitutional infirmities where possible, and to avoid facial challenges if there is readily apparent construction of statute that can rehabilitate constitutional infirmity). The statute‘s exclusion of otherwise qualifying images involving voluntary nudity or sexual conduct in settings in which a person does not have a reasonable expectation of privacy,
¶ 67. Given this narrowing construction, as well as all the express limitations on the statute‘s reach built into
¶ 68. We reject defendant‘s suggestion that civil penalties are necessarily less restrictive than criminal penalties, and that because the statute includes criminal penalties as well as the potential for civil liability it is broader than necessary to advance the State‘s interest. The Supreme Court has acknowledged that civil and criminal penalties do not stand in a clear hierarchy from the perspective of chilling speech. In Sullivan, the Court explained, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of [civil] damage awards . . . may be markedly more inhibiting than the fear of prosecution under a criminal statute.” 376 U.S. at 277. In
See also Garrison, 379 U.S. at 67 n.3 (“Whether the libel law be civil or criminal, it must satisfy relevant constitutional standards.“).
¶ 69. For the above reasons, the statute is narrowly tailored to advance the State‘s interests, does not penalize more speech than necessary to accomplish its aim, and does not risk chilling protected speech on matters of public concern. We accordingly conclude that
¶ 70. This Court may affirm the trial court‘s judgment on any basis, even if not relied upon by the trial court or briefed by the parties. See Gilwee v. Town of Barre, 138 Vt. 109, 111, 412 A.2d 300, 301 (1980) (noting that this Court would not reverse trial court if record revealed any legal ground justifying result, as “[a] trial court can achieve the right result for the wrong reason“); see also Kuligoski v. Rapoza, 2018 VT 14, ¶ 1, __ Vt. __, 183 A.3d 1145 (affirming on
a different basis than relied upon by trial court); McGee v. Gonyo, 2016 VT 8, ¶ 1, 201 Vt. 216, 140 A.3d 162 (same). Defendant‘s arguments before the trial court that (1) on the basis of the alleged and stipulated-to facts, the State cannot prove that complainant had a reasonable expectation of privacy (and
¶ 71. The trial court‘s decision and the parties’ briefs in connection with the State‘s petition focus almost entirely on the facial challenge. Considering that this is the first opportunity we have had to apply
We withhold any mandate pending further briefing and decision on these issues. Defendant‘s brief concerning the “as applied”
FOR THE COURT:
Associate Justice
¶ 72. SKOGLUND, J., dissenting. Defendant raises a constitutional challenge to Vermont‘s version of a so-called “revenge porn” statute,
¶ 73. Section 2606, entitled “Disclosure of sexually explicit images without consent,” was enacted in 2015 as part of a national attempt to criminalize revenge-porn dissemination, or what is sometimes described as “nonconsensual pornography,” and thus safeguard sexual autonomy in the digital age. See generally R. Patton, Taking the Sting Out of Revenge Porn: Using Criminal Statutes to Safeguard Sexual Autonomy in the Digital Age, 16 Geo. J. of Gender & L. 407 (2015). It was an attempt to protect against the mortifying consequences of sexting—the making and sending of explicit pictures of oneself using digital devices. Forty states have acknowledged these issues and enacted legislation to address them. Cyber Civil Rights Initiative, 40 States + DC Have Revenge Porn Laws, https://www.cybercivilrights.org/revenge-porn-laws/ [https://perma.cc/83UK-KKUS] (collecting state statutes). Under Section 2606, Vermont prohibits “knowingly disclos[ing] a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted and the disclosure would cause a reasonable person to suffer harm.”
¶ 74. The affidavits and stipulated facts described the following. Complainant took photographs of herself while nude or partially nude and sent them to Anthony Coon‘s Facebook Messenger account. Coons and complainant were not in a relationship, nor did he request she send the photographs. The photographs themselves were not introduced into evidence—the parties agreed they met the definition of “nude” in
¶ 75. The trial court found that the “merely ‘nude’ photographs” could not be considered obscene and therefore were a protected form of speech and not subject to the “narrow and well-
defined classes of expression” that are seen to carry “so little social value . . . that the State can prohibit and punish such expression.” Connick v. Myers, 461 U.S. 138, 147 (1983). The court then reasoned that, in this content-discrimination case, because the images were not obscene, it had to review the statute and its prohibitions under a strict scrutiny basis. It further opined that the element of “revenge” in the statute did not allow for enlargement of unprotected speech under the First Amendment.
¶ 76. “A challenge to the constitutionality of a statute is reviewed de novo.” United States v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012); see United States v. Osinger, 753 F.3d 939, 943 (9th Cir. 2014); Badgley v. Walton, 2010 VT 68, ¶ 4, 188 Vt. 367, 10 A.3d 469 (“We review a trial court‘s legal conclusions de novo.“).
¶ 77. Because it is clear that the statute criminalizes the distribution of images based on their content—“a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent“—the trial court correctly reviewed it as a content-based restriction on speech.
¶ 78. Section 2606 is not “narrowly tailored to promote a compelling Government interest.” Id.; see also United States v. Stevens, 559 U.S. 460, 468-69 (2010). Moreover, a less restrictive alternative exists. Playboy Entm‘t Grp., Inc., 529 U.S. at 813. Therefore, I would affirm the trial court‘s order holding that the statute cannot survive strict scrutiny.
¶ 79. To avoid the rigorous demands of strict scrutiny review, the State principally argues on appeal that the conduct regulated by
¶ 80. As the majority holds, “the speech restricted by Vermont‘s statute cannot be fairly categorized as constitutionally unprotected obscenity.” Ante, ¶ 28. I agree. However, the majority then focuses on whether Section 2606 is narrowly tailored to serve a compelling State interest and concludes that the Vermont statute survives strict scrutiny, and there we part ways.
¶ 81. First, I do not agree that the government has a compelling interest. Does the statute relate to matters of public concern? Speech deals with matters of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146. I agree the speech protected by the statute cannot be considered as relating to matters of public concern and, thus, does not carry as much weight in the strict scrutiny analysis as speech concerning matters of public concern. “First Amendment protections are often less rigorous . . . because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). Can revenge porn cause extreme emotional distress? Oh, yes. However, while the majority finds a compelling State interest in preventing the nonconsensual disclosure of nude or sexual images of a person obtained in the
¶ 82. Next, the statute fails to survive strict scrutiny because it is not narrowly tailored, nor does it provide the least restrictive means of dealing with the perceived problem. As explained above, the statute criminalizes dissemination of nude imagery or any sexual conduct of a person without that person‘s consent and with a bad motive. Reduced to its essential purpose, it criminalizes an invasion of personal privacy.
¶ 83. My primary war with the statute is simply this. The State has at its disposal less restrictive means to protect Vermonters against invasion of their privacy than subjecting a violator to a criminal penalty. Section 2606 does provide for a civil remedy. Subsection (e) provides plaintiff a private cause of action against a defendant who knowingly discloses, without the plaintiff‘s consent, an identifiable visual image of the plaintiff while he or she is nude or engaged in sexual conduct and the disclosure causes the plaintiff harm. It also provides for relief in the form of equitable relief, a temporary restraining order, a preliminary injunction or permanent injunction. While the State argued that the private right of action may fail to deter and punish publishers of nonconsensual pornography because “[m]ost victims lack resources to bring lawsuits, [and] many individual defendants are judgment-proof,” the potential success of a private right of action is irrelevant in determining whether less restrictive alternative exists. One could always bring an action alleging intentional infliction of emotional distress. The Legislature could provide for triple damages and require that attorney‘s fees be awarded the prevailing party. There is a myriad of ways to provide protection to people short of criminal charges.
¶ 84. The statute‘s ambiguities concerning the scope of its coverage, even with the limiting interpretation crafted by the majority, coupled with its increased deterrent effect as a criminal statute, raise special First Amendment concerns because of its obvious chilling effect on free speech. “Criminal punishment by government, although universally recognized as a necessity in limited areas of conduct, is an exercise of one of government‘s most awesome and dangerous powers.” Ginzburg v. United States, 383 U.S. 463, 477 (1966) (Black, J., dissenting). While disseminating “revenge porn” may be a repulsive and harmful action, the statute‘s attempt to criminalize this behavior runs afoul of the rights and privileges of the First Amendment. When content-based speech regulation is in question, exacting scrutiny is required. And, the burden placed on free speech due to its content is unacceptable if less restrictive alternatives would be at least as effective in achieving the statute‘s purposes. Civil avenues exist that can avenge an invasion of privacy or a deliberate infliction of emotional distress without criminalizing speech based on the content of the message. As the Supreme Court has said, “[s]tatutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.” Alvarez, 567 U.S. at 715. And, the First Amendment protects us all with an even hand.
¶ 85. I would affirm on this basis.
Associate Justice
As supplemented following additional briefing and oral argument.
¶ 86. ROBINSON, J. We now resolve the question of whether the trial court‘s dismissal of the
¶ 87. The evidence before the trial court in connection with the motion to dismiss reflects the following. Complainant sent nude pictures of herself to Anthony Coon via Facebook Messenger, Facebook‘s private messaging service. Her sworn statement reflects that on October 8, 2015, multiple people contacted her to report that the nude photos of her had been publicly posted on Mr. Coon‘s Facebook page and she had been tagged in them. Complainant initially tried to untag herself but was unable to. She eventually deleted her account. She left Mr. Coon a telephone message asking that he delete the pictures from Facebook. Complainant then received a call from Mr. Coon‘s phone number. The caller was defendant. Defendant called complainant a pig and said she was going to tell complainant‘s employer, a child-care facility, about “what kind of person work[ed] there.” Defendant said that she had left her “ex” for Mr. Coon. Complainant asked defendant to remove the pictures from Facebook, and defendant replied that she was going to “ruin” complainant and “get revenge.” After that call ended, complainant contacted the police.
¶ 88. Complainant reported that the night before the pictures were publicly posted, a friend told her defendant was asking about her and claiming Mr. Coon was her boyfriend. Upon learning this, complainant asked Mr. Coon about defendant, and Mr. Coon said that defendant was obsessed with him and he never slept with her. Complainant “took it as him being honest so we moved on.”
¶ 89. The investigating officer spoke with defendant over the phone. Defendant admitted that she saw the nude pictures of complainant through Mr. Coon‘s Facebook account and that she posted the pictures on Facebook through Mr. Coon‘s account. Defendant stated to the officer, “you think she [complainant] learned her lesson.”
¶ 90. In reviewing the State‘s motion, the trial court later asked the parties to stipulate to additional facts, if possible, concerning when the photographs were sent, whether complainant sent them while in or after ending a relationship with Mr. Coon, and how defendant had access to Mr. Coon‘s Facebook account. The parties stipulated that complainant sent Mr. Coon the photos on October 7, and they were posted on a public Facebook page on October 8. They further stipulated that “complainant was not in a relationship with Mr. Coon at the time the photographs were sent to Mr. Coon.” Finally, they stipulated that defendant did not have permission to access Mr. Coon‘s Facebook account, and Mr. Coon believes defendant gained access to his account through her phone, which had his Facebook password saved on it.
¶ 92. The trial court held that the statute was subject to strict scrutiny because it restricted protected speech and did not survive strict scrutiny because the State had failed to show that there were no less restrictive alternatives available, and it accordingly dismissed the charge. The court did not address defendant‘s argument that complainant had no reasonable expectation of privacy in the images.
¶ 93. The State sought permission to appeal the trial court‘s decision on defendant‘s motion to dismiss, and the trial court granted the request. Because the trial court issued a final judgment dismissing the State‘s charges before it received the State‘s motion for permission to appeal pursuant to
¶ 94. We first addressed the facial constitutionality of
¶ 95. The State argues that the alleged and stipulated facts establish a prima facie violation of the elements listed under
¶ 96. We review motions to dismiss without deference to the trial court. State v. Scales, 2019 VT 7, ¶ 8, __ Vt. __, __ A.3d __. The court must dismiss an “indictment or information on the ground that the prosecution is unable to make out a prima facie case” if the State cannot “establish by affidavits, depositions, sworn oral testimony, or other admissible evidence that it has substantial, admissible evidence as to the elements of the offense . . . sufficient to prevent the grant of a motion for judgment of acquittal at the trial.” V.R.Cr.P. 12(d)(1)-(2). In making this determination, we “review the evidence in the light most favorable to the State, excluding modifying evidence, and determine whether that evidence would fairly and reasonably tend to show defendant committed the offense, beyond a reasonable doubt.” Scales, 2019 VT 7, ¶ 9 (quotations omitted).
¶ 97. We conclude that dismissal is appropriate because the State has not established that it has evidence showing that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon. The statutory exception for images taken in a setting where there was no reasonable expectation of privacy, or previously distributed in a manner that undermined that expectation of privacy, is fundamental to the constitutionality and purpose of this statute, and must be understood as an element of the crime. The State bears the burden of establishing that it has evidence as to each element of the offense, including this one. Because the State has stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent Mr. Coon the photo, and there is no evidence in the record showing they had any kind of relationship engendering a reasonable expectation of privacy, we conclude the State has not met its burden.
¶ 98. The requirement that the images at issue be subject to a reasonable expectation of privacy is central to the statute‘s constitutional validity under a strict-scrutiny standard. A content-based restriction on First Amendment-protected speech like
¶ 99. Because the protection of reasonable expectations of privacy in intimate images is central to the statute‘s constitutionality and purpose, the reasonable-expectation-of-privacy provision must be understood as an element of the crime. “[A]n element is that which defines or describes the crime.” Fraser v. Sleeper, 2007 VT 78, ¶ 11, 182 Vt. 206, 933 A.2d 246. In determining whether a statutory exception is an element or a defense, the “question is whether the exception is so incorporated with the substance of the clause defining the offense, as to constitute a material part of the description of the acts, omissions, or other ingredients which constitute the offense.” State v. Bevins, 70 Vt. 574, 577, 41 A. 655, 656 (1898) (quotation omitted); see also State v. McCaffrey, 69 Vt. 85, 90, 37 A. 234, 235-36 (1896) (reciting that statutory “exceptions must be negatived” by State “only where they are descriptive of the offense, or define it“). “Provisions that make an excuse or exception to the definition, particularly those principally within the knowledge of the defendant, are defenses.” Fraser, 2007 VT 78, ¶ 11.
¶ 100. We acknowledge that the structure of
(b)(1) A person violates this section if he or she knowingly discloses a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm. . . .
. . . .
(d) This section shall not apply to:
(1) Images involving voluntary nudity or sexual conduct in public or commercial settings or in a place where a person does not have a reasonable expectation of privacy.
¶ 101. But the very essence of this crime is that it is a violation of the depicted person‘s reasonable expectation of privacy. As the State aptly put it in its opening brief, “the conduct regulated by
¶ 102. Our conclusion that the reasonable-expectation-of-privacy requirement is an element, not a defense, is bolstered by the fact that the answer to whether the depicted person had a reasonable expectation of privacy in the images is not necessarily “within the knowledge of the defendant,” let alone “principally” within the defendant‘s knowledge. See Fraser, 2007 VT 78,
¶ 11 (holding that provisions that “make an excuse or exception to the definition, particularly those principally within the knowledge of the defendant, are defenses“). Here, for instance, defendant has no apparent advantage over the State in determining the contours of complainant‘s relationship with Mr. Coon and whether that relationship engendered any reasonable expectation of privacy in the images complainant shared with Mr. Coon.
¶ 103. Because this reasonable-expectation-of-privacy requirement is an element of the crime, the State bears the burden of establishing that it has sufficient evidence as to this element to prevent the grant of a motion for judgment of acquittal at trial. V.R.Cr.P. 12(d)(2) (requiring that, on motion to dismiss for lack of prima facie case, State show “it has substantial, admissible evidence as to the elements of the offense challenged by the defendant‘s motion“); McCaffrey, 69 Vt. at 90, 37 A. at 235-36 (noting statutory “exceptions must be negatived” by State “where they are descriptive of the offense, or define it“).
¶ 104. The State has not shown it has evidence that complainant had a reasonable expectation of privacy in the images she sent to Mr. Coon.14 We understand this to be an objective standard, and find no evidence in the record showing that complainant had such a relationship with Mr. Coon that distributing the photos to him did not undermine any reasonable expectation of privacy that she had in them.
¶ 105. We interpret the reasonable-expectation-of-privacy standard as a purely objective one because the Legislature specified that the statute shall not apply to “[i]mages involving voluntary nudity or sexual conduct . . . where a person does not have a reasonable expectation of privacy.”
not what the person depicted thought. State v. Albarelli, 2011 VT 24, ¶ 14, 189 Vt. 293, 19 A.3d 130 (noting objective standard turns on what reasonable person would think).15 We do not attempt to precisely define here where
¶ 106. We conclude that the State has not shown, as we held it must, supra, ¶¶ 66, 70, that the images were not distributed by the person depicted in a manner that undermined any reasonable expectation of privacy. As the State acknowledged in its briefing, “it is difficult to see how a complainant would have a reasonable expectation of privacy in pictures sent to a stranger.” But the State has not presented evidence to demonstrate that, in contrast to a stranger, Mr. Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others. Nor has it offered evidence of any promise by Mr. Coon, or even express request by complainant, to keep the photos confidential. The State stipulated that complainant and Mr. Coon were not in a relationship at the time complainant sent the pictures. In the face of this stipulation, the facts that complainant and
Mr. Coon apparently knew each other, had each other‘s contact information, and had a conversation about whether Mr. Coon was sleeping with defendant, are not sufficient to support an inference that she had a reasonable expectation of privacy.17 In sum, the State has not offered sufficient evidence to permit a jury to conclude beyond a reasonable doubt that complainant had a reasonable expectation of privacy in the photos she sent to Mr. Coon.18
The petition for extraordinary relief is denied, and the decision below is affirmed.
FOR THE COURT:
Associate Justice
¶ 107. SKOGLUND, J., concurring. I agree with the conclusion of the majority that the State failed to prove complainant had a reasonable expectation of privacy in the nude picture she sent to Mr. Coon. I continue to believe that the statute does not survive strict scrutiny and is unconstitutional on its face.
Associate Justice