Of Public Concern

Eugene Volokh writes about the tentative ruling in the action by former-rep Katie Hill against the Daily Mail and Red State for publishing the nude pics of her. When it happened, Hill was simultaneously the victim of revenge porn and a woman in power taking power asymmetry advantage of her subordinate. Darn those conflicting demands, not that it had any impact of those who would capitalize on the matter to push their own agenda.

Hill could have stayed and fought. Instead, she quit and sued. She chose poorly.

Section 1708.85(c)(4) provides for an exception from liability for images which are a matter of public concern. Here, Defendant has established that the images are a matter of public concern, as they speak to Plaintiff’s character and qualifications for her position, allegedly depicting an extramarital sexual relationship with a paid campaign staff member and the use of illegal drugs by a sitting Congresswoman.

Plaintiff’s argument that the images are not a matter of public concern because Defendant could have simply described the images rather than publishing them is unpersuasive, as the fact that information to be gleaned from an image may be disseminated in an alternative manner does not equate to a finding that the image itself is not a matter of public concern.

Whether the story would have mattered if it had been published without images, or with images that concealed the “unlawful” body parts below the top of the areola isn’t the point. The law doesn’t micromanage alternative means of making a public point in the way that causes the least potential distress to the person in the image. If it’s a matter of public concern, then it falls outside the law. That’s the exception, and not even the most ardent and blind believe doubts that it’s a minimum necessity for even a pretense of constitutionality. Not that the law’s proponents came to that realization on their own.

Eugene repeats a point he’s made before, that these revenge porn laws, now called “nonconsensual porn” laws because it expands their reach beyond the motivation of the person distributing it for revenge, can be made constitutional.

I think that, as a First Amendment matter, properly crafted nonconsensual porn statutes are constitutional, and this statute might indeed be narrow enough. (I prefer the term “nonconsensual porn” to “revenge porn,” because I don’t think the law should be limited to speech motivated by a desire for revenge, and indeed the California law has no such limitation.)

Indeed, the California statute might have been narrow enough even if it didn’t have the “previously distributed” exception (or if it had a narrower exception for material that had been previously distributed to the public). It likewise might have been narrow enough even if it had a narrower “public concern” exception, which would apply only if the inclusion of the unredacted depiction of an intimate body part was necessary to effectively communicate important information on a matter of public concern.

Putting aside the perpetual question of what would be required of a law to be “properly crafted” and constitutional, given that there is no First Amendment exception to cover this argument, Eugene acknowledges that, at least in this instance, the “public concern” is sufficient to serve as a defense to the suit.

But under the statute as written, I tentatively think that Hill can’t prevail.

And therein lies a constitutional dilemma. Equivocation aside, Eugene’s analysis glosses over the fact that under this law, the parties involved have no idea whether the disclosure is a matter of “public concern,” or of sufficient public concern, to escape culpability and liability.

The purpose of law isn’t merely to punish transgressors, but to inform people as to what conduct is lawful and what is not so they can act accordingly. What happened here is that a decision about whether to reveal this images of Katie Hill was made without any clarity as to whether it would come within the defense of “public concern” or not. It was a blind bet whether the conduct was lawful. Are you feeling lucky?

This is what is delightfully known as the “chilling effect,” the risk one takes when considering whether to engage in conduct or not without knowing whether it will subject you to criminal or civil sanctions. For most people, the venture into the unknown isn’t worth the risk, and so they don’t do it even if it’s an entirely constitutional exercise of free speech.

The law chills free speech, and if you ask its advocates, that’s pretty much what they hope would happen. When in doubt, don’t do it. Advocates like Mary Anne Franks and Danielle Citron are not particularly concerned about the chilling effect on speech they deem offensive and repugnant. One would hope that Volokh would be more concerned about such things.

Even now, with a tentative ruling from Judge Yolando Orozco, Eugene only proffers his “tentative” conclusion that the Katie Hill’s suit can’t survive. If a highly respected First Amendment scholar can’t figure out sufficiently to take a clear and unequivocal stand as to the lawfulness of the publication of these images, how the hell is any ordinary person to know whether his conduct is lawful? If a law fails to give adequate notice of what conduct is constitutionally protected and what is not such that a regular person can guide himself accordingly, it impinges on his First Amendment rights.

But there is yet another issue raised here, although it apparently flies under the radar. The “public concern” issue is available as a defense to the cause of action under California’s nonconsensual porn statute, Cal. Civ. Code § 1708.85.

(c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances:

(4) The distributed material constitutes a matter of public concern….

In other words, the burden (whether of proof or production remains unclear) is on the defendant rather than the plaintiff to allege and prove that the disclosure is not a matter of public concern. It thus falls on the person exercising his First Amendment rights to prove rather than the person suing or prosecutor charging.

If there’s any question, the party with the burden tends to end up the loser, not because they’re wrong but because they can’t sustain their burden. This means that a person exercising his First Amendment rights not only does so at his peril, but shoulders the burden by statute of proving to a court that he’s entitled to exercise a constitutional right. Contrary to Eugene’s tentative conclusion, that’s not good enough for the Constitution.