North Dakota Senate Bill 2357


Summary

North Dakota Senate Bill 2357 would bar the dissemination of an image depicting “nudity” or “sexually explicit conduct” if:

  • the person in the image did not consent to the distribution;
  • the person in the image had a reasonable expectation of privacy; and
  • the person in the image suffered “emotional distress or harm” as a result of the distribution.

The legislation also provides the person depicted in the image a private cause of action for damages. It also allows a court to grant an injunction blocking the publication of the image.

Status

Governor Jack Dalrymple signed the bill into law on April 8, 2015.

Analysis

S.B. 2357 could criminalize the publication or distribution of important newsworthy, historic and educational images. The photos of Anthony Weiner and other newsworthy images include nudity, were distributed without consent and may have resulted in emotional or other harm.

Even though there is an exception to First Amendment protection for images that are obscene, this bill criminalizes material beyond that. 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 interest. It is not limited to malicious invasion of privacy. The person in the image does not have to be identifiable, and there is no requirement that the person distributing the photo do so with an intent to harass, threaten or torment the person depicted.

The bill is also likely unconstitutional because it does not define “emotional distress or harm.”

History

  • On January 26, 2015, the bill was introduced [2] and referred to the Senate Committee on Judiciary.
  • The Senate Committee on Judiciary held a hearing on the bill on February 3, 2015, and recommended that the bill be passed.
  • The North Dakota Senate passed the bill on February 13, 2015 and sent it to the House for consideration.
  • On March 17, 2015, the House Committee on Judiciary held a hearing on the bill and recommended the bill be passed.
  • Media Coalition submitted a memo in opposition [1] on March 30, 2015, explaining the constitutional issues with the bill.
  • The North Dakota passed the bill on April 1, 2015.
  • On April 8, 2015, Governor Jack Dalrymple signed the bill into law.

Last updated: Sep 3, 2015