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Did Gawker Just Break Hawaiian State Law?

This article is more than 9 years old.

[Note: this post originally quoted from and linked to an earlier version of the Hawaii bill that did not pass. It has since been edited. More details at the bottom.]

John Schindler, a professor at the Naval War College and prolific tweeter under the handle @20committee, sent a nude photo to a woman on Twitter. She screencapped the text he sent her, along with awkwardly amorous e-mails he had written her. Schindler has since deleted his Twitter account, gone silent on his blog, and has been placed on leave from the Naval War College. It’s unclear whether the woman actually wanted to humiliate him, but the ways in which it’s been tweeted and retweeted are a little more straightforward in intent and effect. People are glad that Schindler, who often went out of his way to bully others in the course of defending the NSA and its spying programs, has been taken down a peg. It feels karmic. A just retribution. Maybe even something like revenge?

Revenge Porn and Newsworthy Nudity

Hawaii is the tenth state to enact revenge porn legislation. The new statute criminalizes the violation of privacy in the first degree," which occurs when

 (b)  The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships 

As Amanda Levendowski points out, the statutory language contains a number of troubling defects, including the lack of an intent requirement. But the one to note this week is that the law lacks an exception for “newsworthy nudity.” In other words, John Schindler’s status as a public figure is no defense to publishing the screencaps on Gawker.

Here I must digress to say that it is a truly abysmal state of affairs when I have to pause and think before linking to the Gawker post in question. Levendowski declined to embed this same link, since the Hawaiian statute does not define "disclose." “distribute,” “transmit,” or “otherwise disseminate.”

The question of linking has shadowed legal commentary almost from the beginning. In 2013, law blogger Adam Steinbaugh noted that a draft of the California revenge porn law explicitly criminalized hyperlinks, something that would have placed his own blogging at risk. (Steinbaugh has since been lauded as the guy who “hunts down the men behind revenge porn websites”).

Revenge porn is an actual harm

State legislators are not responding to a phantom threat. Revenge porn—the unconsented-to disclosure of nude photographs, often by a disgruntled ex-partner—is a real problem, one without easy remedies. Law professors Danielle Citron and Mary Anne Franks have taken it up as somewhat of a feminist cause, given its disproportionate impact on women. For reasons I’ll leave unstated, women seem to suffer more emotional, reputational, and economic harms when their privacy is violated in this way.

But current legislative and rhetorical strategies suffer from a serious problem: there is an awkward incompatibility between the actual source of harm and the target of moral disapprobation. Victims suffer from having their photos stay up on the web—or even worse, proliferate. In other words, their worst enemy is an aggregator site, like the one belonging to the repulsive Hunter Moore. But criminal statutes primarily target initial disclosers—partially, no doubt, because legislators wish to punish the archetypal scummy vengeful ex. But on top of that, third-party website operators enjoy limited legal immunity through CDA Section 230, making them less viable targets for criminal liability.

All this makes the business of crafting a statute that is both effective and narrowly construed (not only to avoid unintentional consequences, but also to avoid being struck down on constitutional grounds) very tricky indeed. And in any case, the criminalization of revenge porn should be approached with great caution: the prospect of giving a prosecutor another reason to put a human being in prison should never be taken lightly.

Interrogating Our Narratives

Schindler’s sexts are on the fast track to replacing Anthony Weiner’s as the best test hypo for revenge porn legislation. First Amendment lawyers have consistently warned against curbing press freedom with an overbroad revenge porn law, usually citing Weiner as the classic counterexample. Amanda Marcotte wrote a scathing response to such concerns: “Knowing that Weiner’s dick pics are out there but being unable to view them myself seems like a fair trade for a world where men are more limited in the weapons they can use to stalk, abuse, and control women.” Of course, “being unable to view” a tabloid story was never the worst-case scenario. The worst-case scenario was hauling a tabloid reporter off to prison. But to be fair, this hypothetical always felt a little awkward—nobody wants their resounding defense of the First Amendment to rest on “But what about Anthony Weiner’s penis?”

The case of John Schindler, on the other hand, presents a bewilderingly array of confounding variables. Schindler isn’t just a bully, a transphobe, or the kind of person who would argue with people on the internet and then try to get them in trouble with their employers. There is no small irony in a defender of National Security Agency surveillance having his privacy violated. In addition, the waters are muddied by allegations that the photo was unsolicited, that his behavior had made the woman feel unsafe or uncomfortable.

It’s easy to dismiss the whole furor with the pat answer that he should have never taken that photo to begin with. But that would be an unacceptable answer in the archetypal revenge porn case. Anything said about Schindler should be imagined to apply to any of the hundreds of women victimized by sites like IsAnyoneUp.com. What makes Schindler different from them, anyways?

This is not to say he isn’t different. Yes, Schindler was not only humiliated, he was also disciplined by his employer—much like other revenge porn victims, he is facing repercussions to his career over an explicit photograph he never meant to be public. But there are still good reasons to reject a comparison here, reasons that reveal the limited nature of the standard revenge porn narrative and the kind of legislation that it has spawned.

When a revenge porn statute lacks an intent requirement and a newsworthiness exception, it is of course an insult to the First Amendment. But how should we understand a case in which a person discloses someone else’s unsolicited nude photo because she feels uncomfortable or harassed? How should we understand the role of the third parties who amplify the leak—should they be criminalized? Is their intent to bring attention to an act of harassment distinguishable from their intent to retaliate against an act of harassment? Does it matter? How should we calibrate our inquiry for public figures who take certain public stances on sexuality, morality, or privacy? (Is some variation on the Barney Frank rule relevant, or is this analysis entirely inappropriate?)

Even if it's wrong, is the answer criminalization?

Perhaps our conclusion should be that what happened to John Schindler was wrong. His privacy was violated and an image of his body has been used against him. The thing about revenge porn is that it’s not like recording Donald Sterling saying something racist in private. The vicious impact of disclosure is rather the consequence of a still-Puritan society that turns the fact of your sexuality into a weapon against you. And in that sense, there is something very ugly about this whole incident.

But still, does that mean someone—or multiple people—should be prosecuted on criminal charges? Or be named in a civil suit? Or that blogs and media outlets should be censored? Schindler, who once equated a tumblr full of screencaps of his own tweets with defamation, is exactly the kind of person who would clamor for such a thing. I do not wish to see the woman he sexted dragged through the courts. I imagine I am not alone in this. Perhaps no prosecutor would wish take this up as a cause, but I, for one, have never been satisfied to place my faith in the discretion of prosecutors.

Writing a new criminal offense into law is a serious matter. Yet more and more states are adopting anti-revenge porn laws—California was the first, last year, and this year has seen nine more—many of which look to be overbroad. Laws don’t just apply to sympathetic victims and monstrous persecutors. Here’s to hoping a test case doesn’t have to prove that.

***

Update: The woman who received the photo has since clarified that it was not unsolicited, and that "[e]ven after I found out he was married, I was a willing participant." 

Update 2 (6/26/2014): Due to an error in the NCLS website (that has since been fixed), this post originally quoted a version of the Hawaii bill that did not pass. The link used to be here. The part I quoted was:

A person commits the offense of unlawful distribution of sexual representation if a person, without the consent of the person represented, intentionally or knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a representation of a nude person or of a person engaging in sexual conduct.

I have added strikethroughs to portions of the post that are no longer relevant. New additions are in blue. Many thanks to Carrie Goldberg for the correction.

For what it's worth, I think the addition of the intent requirement means that the journalists would eventually win in court,* even without a newsworthy nudity exception. But it still leaves me wondering whether they'd win on summary judgment, or if it would be dragged-out, expensive affair. I also don't think the final language changes whatever analysis I've made as applied to other persons.

* None of this is not legal advice.