Summary
Maine Legislative Document 679 would make it a crime for a person to disseminate, advertise or offer an image of a person who is nude or engaging in sexual conduct if:
- he or she knows or should have known that the person in the image did not consent; and
- the person depicted is identifiable.
It is punishable by up to 364 days of incarceration and a $2,000 fine.
The bill was amended to require that:
- the dissemination was done with the intent to harass, torment or threaten the depicted person or another person;
- the dissemination has no public or newsworthy purpose.
Status
The amended version of L.D. 679 became law without the governor’s signature.
Analysis
Speech cannot be criminalized because we judge it to be low value and offensive, embarrassing or hurtful. The Supreme Court has not indicated any willingness to create a new category of speech outside of First Amendment protection for speech that many find offensive or upsetting.
In addition, the bill is substantially overbroad. It applies to artistic, historical and newsworthy images, both in print and online. As a result, it criminalizes speech that lies at the very core of the First Amendment’s protections. It makes no distinction between a hacker who releases private photos and a publisher who prints images of torture at Abu Ghraib prison. It sweeps in not just those acting with an intent to torment or harass a former intimate partner, but also countless Internet users who innocently repost online images.
The bill’s overbreadth is compounded by making it a crime to disseminate the image if the person “should have known” that he or she lacked consent from the person depicted. This is a negligence standard, and the First Amendment prohibits the use of negligence-based standards in regulating speech.
History
- The bill was introduced [2] on March 3, 2015 and referred to the Committee on Criminal Justice and Public Safety.
- On May 28, 2015, Media Coalition submitted a memo in opposition [1] to the members of the committee, explaining the constitutional issues with the bill.
- On June 15, 2015, the bill was amended [3] to include a requirement that the dissemination was done with an intent to harass, torment or threaten the person depicted. The House and the Senate passed the amended bill.
- On July 12, 2015, the amended bill became law without the governor’s signature.