Revenge-Porn Prosecution Revived in Vermont

MONTPELIER, Vt. (CN) – Lauding the state’s ban on so-called revenge porn — the disclosure of sexual images without the subject’s consent — Vermont Solicitor General Benjamin Battles praised the state Supreme Court for upholding the law.

“We think the statute is an important law for protecting the safety and privacy of vermonters, and we’re very pleased with the Vermont Supreme Court’s decision upholding the constitutionality of the statute,” Battles said in a phone interview Wednesday.

In the underlying case, a woman whose identity is shielded from the court records sent nude photos of herself on Oct. 7, 2015, to a man named Anthony Coon. A day later, the photos posted on Coon’s Facebook page with the woman tagged.

As noted in the ruling, Coon says the photos were posted by Rebekah VanBuren, a woman Coon describes as having an obsession with him. In a message to the woman from the photos one night before they were posted publicly, VanBuren also described herself as Coon’s girlfriend.

Charged with violating the state’s revenge-porn law, which was enacted in 2015, VanBuren filed a motion to dismiss on the grounds that the woman never made privacy a condition before she sent Coon the photos.

VanBuren brought a First Amendment challenge to the law itself — a claim that the Superior Court in Burlington found successful.

Though the trial court concluded that Vermont failed to narrowly tailor the law to serve a legitimate government interest, the Vermont Supreme Court reversed 4-1 on Friday.

“We conclude that ‘revenge porn’ does not fall within an established categorical exception to full First Amendment protection, and we decline to predict that the U.S. Supreme Court would recognize a new category,” Justice Beth Robinson wrote for the majority. “However, we conclude that the Vermont statute survives strict scrutiny as the U.S. Supreme Court has applied that standard.”

In her dissent, Justice Marilyn Skogland wrote the government does not have a compelling interest in preventing the nonconsensual sharing of private images.

“I cannot agree that, in this day and age of the internet, the state can reasonably assume a role in protecting people from their own folly and trump First Amendment protections for speech,” Skogland wrote.

Matthew Valerio, a public defender who represented VanBuren in the underlying case, was not available for comment Wednesday.

In Vermont, if a violation of the revenge-porn law is born of a bid for profit, the crime is treated as a felony. Other violations are prosecuted as misdemeanors, punishable by a $2,000 fine or two years in prison, or both.

Forty states, including Vermont, have legislation on the issue of revenge porn. A bipartisan revenge-porn bill was also introduced in Congress last year after a nude selfie of Representative Joe Barton was circulated online without his consent.

Robinson in her ruling last week cited a recent study by the Data & Society Research Institute that says 4 percent of U.S. internet users had either been threatened with or experienced nonconsensual image posting. Women are “overwhelmingly” the targets, the study found.

“Nonconsensual pornography posted online can be a significant obstacle to getting a job,” Robinson wrote. “Moreover, the widespread dissemination of these images can lead to harassment, extortion, unwelcome sexual attention, and threats of violence. The government’s interest in preventing any intrusions on individual privacy is substantial; it’s at its highest when the invasion of privacy takes the form of nonconsensual pornography.”

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