Being an a**hole is not illegal.
Revenge Porn Law Florida 2015 – House Bill 151
Florida House Bill 151, 2015 was filed by Representative Tom Goodson of Titusville, Florida. House Bill 151 would create a new statute, Florida Statute 847.0136. If the bill is passed by both the Florida House & Senate, it would criminalize what is commonly referred to as “revenge porn.” A violation of of Florida Statute 847.0136 would be either a third or a second degree felony depending on the ages of the parties involved. The penalties can be substantial as third and second degree felonies carry a maximum penalty of 5 and 15 years respectively.
The First Amendment Does Not Protect All Speech
A general rule of thumb is that speech is presumptively protected unless it falls within certain narrow exceptions. Revenge porn statutes, such as proposed in Florida House Bill 151, are drafted to criminalize conduct which is based upon the content of the speech. Over the years, the United States Supreme Court has set forth the various types of content related speech that can be subject to restrictions. The exceptions pertaining to criminalizing speech are as follows:
- Inciting imminent lawless action;
- Fighting words;
- True threats;
- Obscenity;
- Child pornography;
- Nuclear information;
- Teaching or instructing how to make certain weapons with knowledge that it will be used for a criminal purpose and
- Military secrets.
None of the above exceptions apply to “revenge porn.” I have been asked why the “fighting words” doctrine does not apply to revenge porn. The fighting words doctrine derives from a concept which is quite foreign to today’s politically correct society. The fighting words doctrine was set forth in Chaplinsky vs. New Hampshire and is limited to words that by their “very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky was decided in 1942 back when society recognized that sometimes people who run their mouths need to be punched in the face. The application of the fighting words doctine has eroded over time. The most recent case dealing with the fighting words doctrine was Snyder vs. Phelps. The case involved Westboro Baptist Church and their “protests” at funerals for members of the armed forces who were killed in Iraq or Afghanistan. In my opinion, if the fighting words doctrine did not apply to Westboro Baptist Church, it is essentially dead for all practical purposes.
United States vs. Stevens – Recent Supreme Court Case Law
United States vs. Stevens was decided by the United States Supreme Court in 2010. Stevens was indicted under 18 U.S.C. 48 which criminalized the knowing sale, possession or depiction of cruelty to animals with the intent to place said materials into interstate commerce. Stevens filed a motion to dismiss alleging that 18 U.S.C. 48 was unconstitutional. The District Court denied the motion and Stevens was convicted. The 3rd Circuit Court of Appeal reversed holding that, while statutes criminalizing dog fighting and/or using dogs to hunt wild hogs could be constitutional, the statute attempted to create a new category of unprotected speech. As the statute was a content based regulation of speech, strict scrutiny applied. The 3rd Circuit found that the statute lacked a compelling state interest and was not narrowly tailored to prevent cruelty to animals.
When applying the Stevens decision to Florida House Bill 151, 2015, the only intellectually honest conclusion is that it is unconstitutional. There is no doubt that it is an attempt to regulate speech based on content. It does not fall within any recognized exception. I do not believe that there is a compelling government interest and the statute is overbroad. For the sake of space, I am not going to get into why I believe that the statute is overbroad.
Stopping Revenge Porn
Initially, let me start by saying that I agree with Representative Goodson regarding the intent of the law. If a girlfriend gives a man sexually explicit photos of themselves which are intended to be private, the photos should remain private. Those of us who do not date within the pornographic industry know that our girlfriend(s) do not want their naked pictures of her posted on the internet. Showing a picture to one of your friends is one thing, but posting it on the internet for the world to see is definitely out of bounds. It is not only a huge violation of somebody’s trust, but it makes it much more difficult for the rest of us to get our girlfriend(s) to give us pictures and videos. That being said, I do not know if there is a way to constitutionally criminalize the conduct.
Further Reading
I got a B+ in my First Amendment class in law school. Nevertheless, I admit that is not my strongest area. For more in depth analysis on both sides of the issue, I’d refer you to:
Are Statutes Covering Revenge Porn Constitutional? – Houston Criminal Lawyer Mark Bennett
Debunking the First Amendment Myths Surrounding Revenge Porn Laws – Danielle Citron
F**king Danielle Citron – Houston Criminal Lawyer Mark Bennett
Full Text of Bill: Florida House Bill 151, 2015
For additional information, please contact
The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286
