Revenge porn — or, more accurately, “non-consensual pornography” — is unquestionably bad. We’ve spent plenty of time mocking the jackasses who have been involved in these awful sites, and have been happy to see them flail around as the stench of their association with these sites sticks.

However, we have not supported the attempts by a small group of legal academics to criminalize running such a site for a variety of reasons. First, such an action would make plenty of protected speech illegal causing massive collateral damage to speech and internet platforms. Second, as we’ve repeatedly documented, these revenge porn sites don’t seem to last very long, and those involved with them have a fairly permanent stain on their reputations. Third, in many cases, the type of people running these sites often seem to have already violated other laws, for which law enforcement is able to go after them.

In recent years, the Supreme Court has made it pretty clear that it has little interest in expanding the categories of speech that are exempted from the First Amendment. I’ve often pointed to lawyer Mark Bennett’s 2014 blog post entitled First Amendment 101 in which he details out the very short list of speech that is not protected by the First Amendment. That post is actually about attempts to outlaw revenge porn and claims that it’s not protected by the First Amendment, but the list is a useful one to point to any time anyone suggests that this or that speech shouldn’t be subject to the First Amendment.

Some people insist that revenge porn would clearly be exempt from the First Amendment because it’s so bad. But they ignore that, in recent years, the Supreme Court has made it clear that such awful content as video depictions of cruelty to animals and picketing military funerals with truly hateful signs is protected under the First Amendment. The Supreme Court has it’s very short and narrow list of exceptions, and hasn’t shown any indication that it’s ready to expand that list.

Indeed, the very same Mark Bennett, earlier this year, helped get a Texas revenge porn law declared unconstitutional, as the court there recognized that the law ran afoul of the First Amendment, in that it was criminalizing a new category of speech not currently exempted, and was unable to survive strict scrutiny, as per the Supreme Court, for any legislation that includes content-based restrictions.

But Mark Bennett is now reasonably perturbed that the Supreme Court of Vermont has decided that that state’s revenge porn law is constitutional. And part of the reason he’s so perturbed is that the ruling is truly bizarre. It accurately notes that revenge porn does not fall into one of the delineated exceptions to the First Amendment… but (surprisingly) that it still can withstand strict scrutiny:

For the reasons set forth below, we conclude that “revenge porn” does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category. However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.

That’s… very strange. Usually, once a court recognizes that something is not in an exempted bucket, it finds the law to be unconstitutional. Here, Vermont is carving new territory. Thankfully, as part of saying that revenge porn is not in an already exempted bucket is a good thing, as it wipes out the incorrect claim by some law professors that you could just say that revenge porn is obscene (which would be very problematic). The court correctly highlights how there are massive differences between what is obscene and what is revenge porn, and notes (correctly again) that the Supreme Court is loathe to expand the definition of obscene:

We recognize that some of the characteristics of obscenity that warrant its regulation also characterize nonconsensual pornography, but we take our cues from the Supreme Court’s reluctance to expand the scope of obscenity on the basis of a purpose-based analysis.

Next, the court (correctly!) says it’s in no position to create a new category of exempted speech:

Although many of the State’s arguments support the proposition that the speech at issue in this case does not enjoy full First Amendment protection, we decline to identify a new categorical exclusion from the full protections of the First Amendment when the Supreme Court has not yet addressed the question.

Indeed, the Vermont Supreme Court highlights how frequently the US Supreme Court has been tossing out laws that try to create new categories of unprotected speech:

[W]e decline to predict that the Supreme Court will add nonconsensual pornography to the list of speech categorically excluded. We base our declination on two primary considerations: the Court’s recent emphatic rejection of attempts to name previously unrecognized categories, and the oft-repeated reluctance of the Supreme Court to adopt broad rules dealing with state regulations protecting individual privacy as they relate to free speech.

More than once in recent years, the Supreme Court has rebuffed efforts to name new categories of unprotected speech. In Stevens, the Court emphatically refused to add “depictions of animal cruelty” to the list, rejecting the notion that the court has “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” 559 U.S. at 472. The Court explained, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them.” Id. A year later, citing Stevens, the Court declined to except violent video games sold to minors from the full protections of the First Amendment. Brown, 564 U.S. at 790-93 (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”). And a year after that, the Court declined to add false statements to the list. Alvarez, 567 U.S. at 722 (affirming appeals court ruling striking conviction for false statements about military decorations).

More significantly, as set forth more extensively above… in case after case involving a potential clash between the government’s interest in protecting individual privacy and the First Amendment’s free speech protections, the Supreme Court has consistently avoided broad pronouncements, and has defined the issue at hand narrowly, generally reconciling the tension in favor of free speech in the context of speech about matters of public interest while expressly reserving judgment on the proper balance in cases where the speech involves purely private matters. The considerations that would support the Court’s articulation of a categorical exclusion in this case may carry great weight in the strict scrutiny analysis…. But we leave it to the Supreme Court in the first instance to designate nonconsensual pornography as a new category of speech that falls outside the First Amendment’s full protections.

So then why doesn’t the court declare this law unconstitutional? Well, that has lawyers like Mark Bennett and Eric Goldman perplexed. To pass “strict scrutiny,” the court has to find that the law was passed to further a “compelling government interest” and that the legislation must be “narrowly tailored” to address just the issue for which the government has such a compelling reason.

Here, the court finds that there is a compelling government interest, saying that revenge porn images are not a matter of public concern, and serious harms created by revenge porn make it so that the government has a compelling interest in outlawing such content. Fair enough. But what about the “narrowly tailored” part. That seems like where such a law should fall down, but nope:

Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State’s compelling interest because their disclosure would violate a reasonable expectation of privacy. Our conclusion on this point is bolstered by a narrowing interpretation of one provision that we offer to ensure that the statute is duly narrowly tailored. The fact that the statute provides for criminal as well as civil liability does not render it inadequately tailored.

But, of course, the real problem is that all of these laws criminalize tons of content that should otherwise be protected. And here, the court more or less ignores that, by saying that the potentially overbroad nature of the law wasn’t raised by the defendant:

The Supreme Court has recognized that in a facial challenge to a regulation of speech based on overbreadth, a law may be invalidated if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Id. at 473 (quotation omitted). Defendant here does not frame his challenge to the statute as an overbreadth challenge but instead argues that insofar as the speech restricted by the statute is content-based, the statute is presumptively invalid and fails strict scrutiny review.

But, as Mark Bennett highlights, this is the court completely missing that “overbreadth” is the thing you check to see if a statute is “narrowly tailored.” But that’s not what happened. Here, the court said no one raised the “overbreadth” issue, and thus it doesn’t need to bother. So, instead, it says that the law is narrowly tailored based on how the law is written with a “rigorous intent element.” But, that’s not how the test works. As Bennett explains:

To pass strict scrutiny, a restriction must be narrowly tailored. It is logically impossible for a statute to be both overbroad and narrowly tailored. Strict scrutiny and overbreadth are not separate analyses. If a content-based restriction is substantially overbroad—if it restricts a real and substantial amount of constitutionally protected speech—it is ipso facto not narrowly tailored, and it fails strict scrutiny.

This is a confused mess of a ruling. As Eric Goldman notes, it’s possible this could be appealed to the US Supreme Court, though it’s unlikely that such a petition would be granted. It does seem likely that eventually this issue would need to be looked over by the Supreme Court to clarify the confusion. But, in the meantime, the law in Vermont stands.

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