FLORIDA MOVES TO MAKE REVENGE PORN A CRIME

What does the proposed new law say?

A bill making “revenge porn” a crime is moving through the Florida Legislature on its way to becoming a new law. In case you’re unfamiliar with the term, revenge porn is the popular phrase used to refer to someone posting naked pictures of someone else online as an act of revenge, usually against their ex. The full text of the bill can be found here.

The guts of the new law would be this very long sentence:

“An individual may not intentionally and knowingly disclose a sexually explicit image of an identifiable person or that contains descriptive information in a form that conveys the personal identification information of the person to a social networking service or a website, or by means of any other electronic medium, with the intent to harass such person, if the individual knows or should have known that the person depicted in the sexually explicit image did not consent to such disclosure”

Let’s unpack that.

In order for someone to be convicted, the new law would require that the state prove the defendant intended to harass the victim, and knew or should have known that the victim didn’t consent to the disclosure of the image. This is what’s called the mens rea requirement, which refers to the defendant’s state of mind. The prosecutor has to prove that the disclosure was not accidental, but was actually intended to harass. This can be proven directly, through an admission by the defendant, or indirectly, perhaps by the defendant posting the picture on a revenge porn website.

The term “sexually explicit image” can be a photo or video of simple nudity, or of sexual intercourse. “Image” is pretty broadly defined as well (it includes the term “other reproduction” – which is vague), and in my reading it could potentially include a drawing or other artistic rendering, as long as it is accompanied by something identifying the subject.

Some people have expressed concern about laws specifically criminalizing revenge porn, mainly on free speech / First Amendment grounds. I think Florida’s law could potentially be unconstitutional under the First Amendment due to its vagueness with regards to the term “image.” An example – a person draws a sexually-explicit cartoon and puts it online with someone’s name attached. Is that a crime under the new law? Is it constitutionally protected speech?