Home » News » Ind. Supreme Court rules revenge-porn law does not violate First Amendment

By David L. Hudson Jr., published on February 2, 2022

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Indiana’s revenge-porn law prohibiting non-consensual distribution of intimate images is constitutional and does not violate the First Amendment, the state’s high court has ruled.

 

Prosecutors charged Connor Katz with violating the 2019 law in May 2020. They alleged that in March 2020, Katz had filmed his then-girlfriend, R.S., performing oral sex on him at his college fraternity house in Angola, Ind. Katz then sent the video via Snapchat to his ex-girlfriend, C.H., who told R.S. about it.

 

Katz filed a motion to dismiss the charge, arguing that the law violated both the First Amendment of the U.S. Constitution and the free-expression provision of the Indiana Constitution. A trial court agreed and granted Katz’s motion to dismiss. It ruled that the law violated the First Amendment and the free-speech provision of the state constitution.

 

The state appealed directly to the Indiana Supreme Court, which reversed the trial court in its Jan. 18, 2022, decision in Indiana v. Katz.

 

Katz initially argued that that the state did not sufficiently allege an offense, because the image did not show R.S.’s mouth or Katz’s penis. The Indiana Supreme Court noted that whether the image adequately showed an “intimate image” for purposes of the law was an evidentiary question for a jury at trial, not something properly raised in a motion to dismiss.

 

The state had argued that revenge porn should be declared a new unprotected category of speech like obscenity, true threats, incitement to imminent lawless action, or other such categories. However, the Indiana high court refused, citing the U.S. Supreme Court’s reluctance to create new unprotected categories of speech. The Indiana high court noted that the U.S. Supreme Court last recognized another unprotected category, child pornography, in New York v. Ferber (1982).

 

Then, the Indiana high court proceeded to the content-discrimination principle to determine whether the law was content-based or content-neutral. Content-based laws are subject to strict scrutiny, while content neutral laws are subject to a lower form of judicial review known as intermediate scrutiny.

 

The Indiana Supreme Court determined that “the distribution statute is plainly a content-based restriction, not a content-neutral time, place, or manner restriction.” The law specifically criminalizes certain types of expression – intimate images of sexual conduct.

 

However, the court ruled that the law survived strict scrutiny because the revenge-porn law “advances the State’s compelling interest in protecting individuals from the unique and significant harms from the nonconsensual distribution of their intimate images, and it does so through means narrowly tailored to avoid unnecessarily abridging speech.”

 

The court said many federal and state laws criminalize video voyeurism and that these laws also protect privacy. Thus, the revenge-porn law “reflects a longstanding government interest in preventing the substantial invasion of privacy that occurs when an intimate image is taken and distributed without the individual’s consent.”

 

The court said the law was narrowly tailored because it applies only when the discloser knows or reasonably knows that the person depicted in the image did not consent to the distribution. The court wrote that “this limits the statute to the types of personal, direct communications that are typically involved in an intimate relationship, where consent can be reasonably known.”

 

The case is now remanded back to the trial court for further proceedings.

 

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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).

 

 

 

 

 

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