Vermont v. VanBuren

This case raised a facial challenge to Vermont’s statute banning disclosure of nonconsensual pornography. “Revenge porn” was a popular label describing a subset of nonconsensual pornography published for vengeful purposes. “Nonconsensual pornography” was defined generally as “distribution of sexually graphic images of individuals without their consent.” Vermont’s law, enacted in 2015, made it a crime punishable by not more than two years’ imprisonment and a fine of $2,000 or both to “knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.” In late 2015, defendant was charged by information with violating the statute. The complainant contacted police after she discovered that someone had posted naked pictures of her on a Facebook account belonging to Anthony Coon and “tagged” her in the picture. Complainant told police that she had taken naked pictures of herself and sent them to Coon through Facebook Messenger. She advised that the pictures had been sent privately so that no one else could view them. Defendant Rebekah VanBuren admitted to the officer that she saw complainant’s pictures on Coon’s Facebook account and that she posted them on Facebook using Coon’s account. A judge found probable cause for the charge against defendant in December 2015. In February 2016, defendant filed a motion to dismiss. She argued that 13 V.S.A. 2606 violated the First Amendment to the U.S. Constitution because it restricted protected speech and it could not survive strict scrutiny. Defendant also asserted that complainant had no reasonable expectation of privacy because she took the pictures herself and messaged them to Coon without any promise on his part to keep the pictures private. The Vermont Supreme Court concluded the statute was constitutional on its face, but the State did not show the images were not distributed by the person depicted in a manner that undermined any reasonable expectation of privacy, and therefore the trial court was justified in dismissing the State’s charge against defendant. As the State acknowledged in its briefing, “it is difficult to see how a complainant would have a reasonable expectation of privacy in pictures sent to a stranger.” But the Court found the State did not present evidence to demonstrate that, in contrast to a stranger, Coon had a relationship with complainant of a sufficiently intimate or confidential nature that she could reasonably assume that he would not share the photos she sent with others. Nor did it offer evidence of any promise by Coon, or even an express request by complainant, to keep the photos confidential. The State stipulated that complainant and Coon were not in a relationship at the time complainant sent the pictures. Therefore, no evidence was presented to permit a jury to conclude beyond a reasonable doubt complainant had a reasonable expectation of privacy in the photos she sent. View "Vermont v. VanBuren" on Justia Law