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NEFAC, ACLU and RI Press Association Urge Gov. Raimondo to Veto Revenge Porn Bill

Posted: June 16, 2016|Category: Free Speech

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First Amendment and freedom of press advocates wrote to Rhode Island Gov. Gina Raimondo this week urging her to veto recently passed “revenge porn” legislation that although well-intended could impede legitimate newsgathering and chill protected speech.

If signed into law, the legislation would largely prohibit the sharing of images depicting adult nudity without the consent of the person pictured. The American Civil Liberties Union of Rhode Island, the New England First Amendment Coalition and the Rhode Island Press Association warned the governor in a June 15 letter that the legislation — passed this week by the House and Senate through identical bills 16-H 7537 and 16-S 2540 — is so “breathtakingly broad” in its reach that it criminalizes activity involving neither revenge nor porn.

“Revenge porn is an issue that clearly needs to be addressed. But this isn’t the solution,” said Justin Silverman, NEFAC’s executive director. “Privacy needs to be protected in a way that does not deter journalists from reporting stories that are in the public’s interest.”

Among several concerns detailed in the letter is the potential chilling effect the legislation would have on media organizations. While the legislation carves out exemptions for the publication of photos “made in the public interest” or relating to “a matter of public concern,” journalists still risk criminal penalties if they share newsworthy photographs a jury later deems outside the scope of that exemption. Photos depicting the abuse of prisoners by U.S. military, for example, could be considered by a jury to be unnecessarily graphic and their distribution to have no public purpose.

“There is a very real concern about [the law’s] potential impact on matters of legitimate news, commentary, and historical interest,” the groups wrote in their veto request to the governor. “If a news publisher must weigh the value of publishing a photo against the potential ignominy of a criminal charge and trial in order to prove there was a ‘public interest’ in making that decision, the chilling impact is clear.”

Another example would be the potential liability publishers would face when reporting the misconduct of public figures, such as Anthony Weiner, a U.S. representative from New York who resigned in 2011 after a sexting scandal.

“Once Anthony Weiner expressed objection to the further public dissemination of his photos, should anybody who retweeted them be considered a criminal because their distribution did not constitute ‘a matter of public concern’?” the groups wrote, adding that “at a time when a major presidential candidate is attacking, and calling for the repeal of protections for, the nation’s press, now is not the occasion to enact a law that, however unintended, plays into that rhetoric.”

Said ACLU of Rhode Island Executive Director Steven Brown: “The ACLU offered numerous suggestions to limit the incredibly broad reach of this law in order to avoid any unconstitutional impact on free speech rights, but they were rejected. It’s now up to the governor to protect the First Amendment rights of the media.”

In addition to describing the legislation’s effects on journalism, the groups also explained that the bills subject potentially thousands of adolescents and adults to prosecution for sharing widely publicized images they did not create.

“The hacking two years ago of nude photos of Jennifer Lawrence and other celebrities was understandably deplorable (and already punishable under other laws),” the groups explained. “But under this bill, any teenager or adult who looked for and shared any of those photos after they had been posted online and publicized would be a criminal.”

The groups noted that every other New England state that has addressed revenge porn did so with narrower laws that mitigated constitutional concerns. Nationally, the majority of states with such laws have included an “intent” requirement that is absent in the Rhode Island bills.

“‘Revenge porn’ should be punished,” the groups wrote, “but when a bill like this misappropriates and distorts the term, and puts the media and others at risk of criminal prosecution for engaging in activity that is a far cry from the bill’s purported intent, we firmly believe a veto is in order.”

Also opposing the legislation is the New York-based Media Coalition, which includes organizations such as the American Booksellers Association, the Association of American Publishers, the Motion Picture Association of America and the Recording Industry Association of America. That coalition asked Gov. Raimondo to veto the bills in a June 14 letter that can be read here.

“We already have a strong privacy law in Rhode Island,” said Linda Lotridge Levin, secretary of the Rhode Island Press Association and a retired professor at the University of Rhode Island. “I don’t understand the rationale for this legislation. It appears to be just a knee-jerk reaction.”

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