Last week, nearly 30 new state laws went into effect, including the outlawing of “sexual cyber-harassment,” which is when someone posts an explicit image of another online without permission. The law, which passed the state legislature nearly unanimously earlier this year, defines sexual cyber-harassment as “publishing a sexually explicit image of a person that contains or conveys personal identification information… without the person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the person.” Violators could face a first-degree misdemeanor charge, or up to a year in jail; repeat offenders could face a third-degree felony, which carries a maximum five years in prison.
Twenty-six states now have some form of law regarding so-called “revenge porn.” And while we applaud the crackdown on this particular heinous act, we are a bit concerned about how effective it will be, and whether it will hold up in the courts. The new law amends an existing state statute to permit law enforcement officers to arrest individuals without a warrant when there is probable cause to believe that the suspect has committed sexual cyber-harassment. Additionally, the law permits a search warrant to be issued to help prove the sexual cyber-harassment.
Obvious breaches of this new law are one thing, but its limits are bound to be tested around the edges, since one person’s “sexual cyber-harassment” might be another person’s normal use of social media. People charged under this statute are almost certainly going to seek cover under the First Amendment (freedom of speech) and Fourth Amendment (unreasonable searches and seizures) of the United States Constitution. What constitutes misuse of social media is right now a gray area in First Amendment law, since, in general, Internet postings have been given a wide latitude of First Amendment protections. Further, the use of warrantless searches are also being challenged again and again in the courts under the Fourth Amendment’s protections.
The constitutionality of this type of legislation is why some states’ “revenge porn” laws have been halted by federal courts. For example, Arizona’s law made it a felony to “disclose, display, distribute, publish, advertise or offer” an image of a nude person without that individual’s consent. However, it was so overly broad, it could have punished a wide range of constitutionally protected communication, including, opponents argued, a library lending a photo book about breastfeeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison or a magazine running a story about a local art show.
We certainly agree that sexual cyber-harassment is a bad thing. We applaud our elected officials for trying to do something about it, and we hope that Florida’s new law holds up in court. If not, it could be necessary to pass legislation that more specifically addresses constitutional concerns while also curbing abuses that are far too common in today’s Internet-driven world.
