State v. Rebekah S. VanBuren
2018 VT 95 (2019)
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Rule of Law:
A state statute criminalizing the nonconsensual disclosure of sexually explicit images is facially constitutional under the First Amendment if it is narrowly tailored to serve the compelling state interest of protecting individual privacy in purely private matters. For a prosecution under such a statute, the state must prove as an element of the offense that the person depicted had a reasonable expectation of privacy in the disclosed images.
Facts:
- A complainant took nude photographs of herself.
- She sent these photographs privately via Facebook Messenger to a man named Anthony Coon.
- At the time the photographs were sent, the complainant and Coon were not in a relationship.
- Rebekah VanBuren, who described herself as Coon's girlfriend, accessed Coon's Facebook account without his permission.
- VanBuren discovered the complainant's photographs in Coon's private messages.
- VanBuren then posted the complainant's nude photographs on Coon's public Facebook page and 'tagged' the complainant, linking the post to her profile.
- After posting the images, VanBuren called the complainant, called her a 'moraless pig,' and stated she was going to ruin the complainant and get revenge.
- VanBuren later admitted to a police officer that she had posted the pictures and asked the officer if he thought the complainant had 'learned her lesson.'
Procedural Posture:
- The State of Vermont charged Rebekah VanBuren in the Superior Court, Bennington Unit, Criminal Division (trial court) with violating the state's 'revenge porn' statute.
- VanBuren filed a motion to dismiss the charge, arguing that the statute was facially unconstitutional under the First Amendment.
- The trial court granted VanBuren's motion, concluding that the statute was a content-based restriction on speech that could not survive strict scrutiny, and dismissed the charge.
- The State then filed a petition for extraordinary relief in the Vermont Supreme Court, asking it to review and reverse the trial court's ruling.
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Issue:
Does Vermont's statute criminalizing the knowing, nonconsensual disclosure of sexually explicit images with the intent to harm, 13 V.S.A. § 2606, violate the First Amendment's protection of freedom of speech?
Opinions:
Majority - Robinson, J.
No, the statute does not facially violate the First Amendment, but the charge must be dismissed because the State failed to establish a prima facie case. The court first declined to create a new categorical exclusion from First Amendment protection for 'nonconsensual pornography,' finding it does not fit within the established category of obscenity and noting the U.S. Supreme Court's reluctance to recognize new categories. Applying strict scrutiny, the court held that the State has a compelling interest in protecting citizens' privacy in purely private matters, preventing severe emotional distress, and shielding them from harassment. The court found the statute, 13 V.S.A. § 2606, is narrowly tailored because it requires specific intent to harm, applies only to identifiable individuals in images depicting nudity or sexual conduct, requires lack of consent, and includes express exceptions for matters of public concern and situations where there is no reasonable expectation of privacy. In a supplemental opinion, the court held that the 'reasonable expectation of privacy' provision is an essential element of the crime that the prosecution must prove. Because the State stipulated that the complainant and the recipient were not in a relationship and presented no other evidence of a confidential or intimate context, it failed to establish that the complainant had a reasonable expectation of privacy, and thus failed to make out a prima facie case. Therefore, the trial court's dismissal of the charge was affirmed on statutory, not constitutional, grounds.
Dissenting - Skoglund, J.
Yes, the statute violates the First Amendment. The dissent agreed with the trial court that the statute is an unconstitutional abridgment of protected speech. While acknowledging the harm of 'revenge porn,' the dissent argued that the State's interest is not compelling enough to justify a criminal statute that trumps First Amendment protections, particularly when individuals engage in the 'folly' of creating and sending such images. The dissent concluded that the statute is not narrowly tailored because less restrictive alternatives exist, such as the civil remedies already provided within the statute itself or tort actions for intentional infliction of emotional distress. Criminalizing the speech is not the least restrictive means of addressing the issue and creates an unacceptable chilling effect on free speech.
Analysis:
This case establishes that 'revenge porn' statutes can be drafted to survive strict scrutiny under the First Amendment, providing a constitutional model for other states. The court's reasoning distinguishes the low-value speech of purely private, harmful disclosures from protected speech on matters of public concern. Crucially, by classifying the 'reasonable expectation of privacy' as an element of the crime rather than an affirmative defense, the decision places a significant burden on the prosecution. This will likely make convictions more difficult in cases where the relationship between the creator of the image and its initial recipient is not clearly defined as intimate or confidential, potentially limiting the statute's application.
