Michigan Senate Bill 508


Summary

Michigan Senate Bill 508 bars the dissemination of images of another person that contain nudity, sexual excitement, erotic fondling, sexual intercourse or sado-masochistic abuse:

  • without the consent of the person depicted in the image, and
  • if the person obtained the images under circumstances in which a reasonable person would know or understand the image was to remain private.

There is an exception to the legislation for the dissemination of some speech if it part of some media.

***

The bill was amended to require that the dissemination:

  • is done with the intent to threaten, coerce or intimidate, and
  • that the person depicted is an adult who is identifiable from the image itself or information displayed in connection with the image.

Status

The Michigan legislature adjourned its 2015 session. It carries over bills to the 2016 session, so the bill may be taken up again next year.

Analysis

»  The bill is a content-based restriction, so it must satisfy the strict scrutiny test. It is likely that it fails that test.

Images disclosed without the consent of the person depicted do not fit any of the categorical exceptions to the First Amendment, so the legislation must satisfy strict constitutional scrutiny. It is unlikely that this bill meets the strict scrutiny test.

The legislature may have a compelling interest in protecting individuals from being harassed or tormented, but this bill is not narrowly tailored to meet that compelling state interest. The bill is not limited to criminalizing malicious invasion of privacy. There is no requirement that the person who distributes the image do so with an intent to harass, threaten, coerce, stalk or otherwise torment the person depicted. Nor is there any requirement that the person depicted suffer any harm. Without both of these elements, the legislation goes far beyond its compelling state interest and criminalizes a substantial amount of First Amendment-protected speech.

»  Exception for images in some instances compounds First Amendment deficiency.

The insertion of a vague exception to liability for dissemination of images for certain types of speech and certain media does not cure the constitutional defects; rather, it makes it more likely that the bill is unconstitutional. The exception is a second content-based evaluation on images that are already subject to a content-based evaluation.

Also, the First Amendment precludes the government from making value judgments to criminalize certain images but exempt them in some media or a specific context.

History

  • The bill was introduced [2] on September 24, 2015 and referred to the Senate Committee on Judiciary.
  • On November 9, 2015, Media Coalition submitted a legal memo [1] to the committee, explaining the constitutional issues with the bill.
  • On December 1, 2015, the committee amended [3] the bill to include the intent requirement and the requirement that the person in the image be identifiable. The committee recommended the bill be passed.
  • The Senate passed the amended bill on December 9, 2015 and sent it to the House for consideration. The bill was referred to the House Committee on Criminal Justice.
  • The Michigan legislature adjourned its 2015 session. It carries over bills to the 2016 session, so the bill may be taken up again next year.

Last updated: Jul 27, 2016