South Dakota House Bill 1243 would bar the dissemination of images of another person “without clothing or under or through the clothing of the person, or with the person depicted in a sexual manner” without the consent of the person depicted in the image.
The bill does not define whether “without clothing” is limited to someone who is completely nude. It does not define whether certain body parts must be visible through or under clothing. Nor does it define “sexual manner.”
The bill is in the Senate Committee on Judiciary.
To limit the bill to criminalizing malicious invasion of privacy without threatening publishers, librarians, news sources and documentary filmmakers, we strongly recommend that any proposed bill include these elements:
- Display or distribution of an image of another person in a state of nudity or engaged in sexual conduct;
- With knowledge that the person in the image has not consented to the display or distribution;
- With the intent to harass, coerce, threaten, extort or intimidate the person in the image;
- The person in the image is recognizable either from the picture itself or information provided by the person who has displayed or distributed it (or a third party, but only if acting in concert with the person who initially displayed or distributed it); and
- Where the person in the image had a reasonable expectation of privacy and an understanding that such image would remain private.
These elements are necessary to overcome the strong presumption that any content-based regulation violates the First Amendment.
As introduced, the bill is a content-based regulation that is unlikely to survive strict scrutiny analysis. The images covered in the bill go far beyond what may be criminalized in any of the historic exceptions to the First Amendment. Because it is a content-based restriction to material presumptively protected by the First Amendment, it must satisfy the strict scrutiny test. But it is unlikely it will pass any part of the test, let alone each part of the test:
- There is no articulable compelling state interest to satisfy the broad reach of the bill. The bill is not limited to protecting individuals who have suffered harm from the publication of the image or punishing those who intend to cause harm to the person depicted. Privacy is an important right, but the Supreme Court has held that by itself, it is not a sufficiently compelling interest for a content-based restriction to overcome the First Amendment. Similarly, offensive or embarrassment, whether to a group or individual, is also not sufficient compelling interest to overcome First Amendment protection.
- Even if the legislation is found to address a compelling state interest, it is not narrowly drawn to meet that interest. The bill is not limited to malicious invasion of privacy, so it would apply to artistic, historical and newsworthy images, both in print and online. The law makes no distinction between a hacker who releases private photos and a publisher who prints images of torture at Abu Ghraib.
- The bill is not the least restrictive means to accomplish the compelling state interest. A court could strike down this bill if it finds that civil actions or copyright law could effectively bar distribution of non-consensual images with less impact on protected speech.
- The bill was introduced  on February 4, 2016 and referred to the House Committee on Judiciary.
- On February 16, 2016, Media Coalition submitted a legal memo  to the committee, explaining the constitutional issues with the bill. The memo was submitted ahead of a scheduled hearing on the bill on February 17, 2016.