Summary
Rhode Island House Bill 7537/SB 2510 would bar the dissemination of an image of another person who is nude or engaging in sexual activity or sado-masochistic abuse without the affirmative consent of that person, if the image was obtained under circumstances in which a reasonable person would know or understand the image was to remain private.
The bill includes a second crime that bars a third-party recipient of the image from distributing it if he or she has actual knowledge of the lack of consent of the person depicted in the image, and it violates the other elements in the first crime.
There is an exception to the legislation for the dissemination of such an image if it “serves a lawful purpose” or the image “constitutes a matter of public concern.” A violation is subject to up to one year in prison.
Status
On June 20, 2016 Governor Gina Raimondo vetoed the bill. The Governor’s statement delivered to the President of the Senate explaining her reasons for vetoing the bill is here.
Analysis
The legislation goes beyond what may be criminalized in any of the historic exceptions to the First Amendment. Since it is a content-based restriction on speech, it is presumed to be unconstitutional and is subject to strict scrutiny analysis. To pass strict scrutiny a law must demonstrate; a legitimate and compelling state interest, prove that the restriction actually serves that interest and is necessary to do so, and show that the restriction is the least restrictive means to achieve that interest. The bills are very unlikely to pass strict scrutiny test.
The bills do not satisfy any articulable compelling state interest
The bills are not limited to distribution with a malicious intent, or even a requirement that there be a showing that harm occurred as a result of the publication. The Supreme Court has held that while privacy is an important right, it is not a sufficiently compelling interest by itself to overcome First Amendment protection for speech.
Even if the bills are found to address a compelling state interest, they are not narrowly drawn
Since the bills are not limited to a malicious invasion of privacy, they would apply to artistic, historical and newsworthy images. The legislation makes no distinction between a scorned ex who disseminates private photos for revenge and a publisher who prints images of prisoners at Abu Ghraib.
The bills are not the least restrictive means to accomplish the compelling state interest
A court could strike down these bills if it finds that civil suits or copyright law could effectively prevent non-consensual distribution of images with less impact on protected speech.
The “public concern” or “lawful purpose” exceptions do not cure constitutional deficiencies
The exemption from liability for dissemination of images that “constitute a matter of public interest” or for publication that serves a “lawful purpose” (whatever these vague terms mean) cannot cure an otherwise unconstitutional law. Both exceptions suggest that such speech is more valuable, and thus gets more protection from the First Amendment, but the Supreme Court has dismissed the notion that First Amendment protection varies depending on the value of the speech.
History
- The bill was introduced [4] on February 10, 2016 and referred to the House Committee on Judiciary.
- Media Coalition submitted a legal memo [1] to the committee, explaining the constitutional issues with the bill, ahead of a hearing on February 24, 2016.
- The committee held a hearing and held the bill for study.
- On May 31, 3016, the committee held a hearing on May 31, 2016 and recommended the bill be passed.
- The bill was passed by the House on June 8, 2016 and sent to the Senate.
- The Senate passed the bill on June 14, 2016 and sent it to Gov. Gina Raimondo.
- On the same day, Media Coalition submitted a letter [2] to Gov. Raimondo.
- Gov. Raimondo vetoed [3] the bill on June 20, 2016.