RICHMOND, Va. (CN) — Virginia’s Senate nixed a bill aiming to make unsolicited pictures of genitals or sex acts illegal after citing First Amendment concerns in a hearing Thursday.
“Sending an obscene picture should require consent from the recipient,” Delegate Kelly Convirs-Fowler argued regarding her bill, which sailed through the state’s House with unanimous consent.
“Sending one without consent should be the equivalent of cyberflashing,” the Virginia Beach Democrat said.
Convirs-Fowler defended the effort during a hearing of the state Senate Judiciary Committee hearing, saying the bill came from constituents who had been victimized by unwanted sexual photos sent via email, text or even during video-streamed events.
A real estate agent, the delegate said the public-forward face and name that her profession requires give ample opportunity for someone to exploit an unfettered audience. She noted how one colleague's recent conference was infiltrated by such a display and, much to the Zoom event host’s shock, it “wasn’t discovered for several minutes.”
But pushback on the effort came swift from fellow Democrats as the legally minded committee punted hypotheticals that they argued could ruin the law in the courts.
“I started dating before these phones existed so this wasn’t a thing back in the day,” quipped state Senator Scott Surovell, a Fairfax Democrat, before expressing concern about how someone could “differentiate between a picture that’s consensual or not consensual.”
Senator Joseph Morrissey, a Richmond Democrat, said the law as written would face a strict-scrutiny standard, or a test against constitutional issues, if applied, and the broadness of the measure could include photos of paintings or sculptures in museums.
“To say this bill has First Amendment, herculean constitutional problems is the understatement of the century,” said the lawmaker, who spent three months in jail with work release following an offered plea to a charge for misdemeanor contributing to the delinquency of a minor. The charge involved a relationship he had with a 17 and half-year-old female employee he later married and had three children with.
So-called cyberflashing laws have gained popularity since New York and Texas passed similar measures in recent years.
Houston-area firm Queenan Law wrote in a blog post that the Texas law considered photos in violation of the law if not sent with express consent. Images of sexual activity, an erect penis under clothing or a nude person could carry both civil and criminal charges — as long as it was undesired.
But First Amendment concerns have muddled such efforts for as long as they’ve been on the books.
“Photographs and visual recordings are inherently expressive and... there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message,” Judge James Worthen wrote for the Texas Appeals Court as it reversed the conviction of offender Jordan Bartlett Jones and struck the law as overly broad.
But Danielle Citron, a law professor at the University of Virginia, argued instead that attempts to limit the offense should be examined more as a technical enhancement to existing harassment laws.
“While the problem might present itself as potentially solved by arguing that the content could be permissibly censorable as obscene, modern technology’s rapid development should perhaps instead inspire a reexamination of when a photograph or video becomes an action rather than speech,” she wrote, comparing it to modern day cyberstalking laws.
Citron also pointed to recent polling that shows half of all millennial women had been sent a sexual photo, and 3 out of 4 of those who received them said they were unwanted.
“On the whole, cyberflashing and unsolicited ‘dick pics’ cause sufficient harm that state legislatures should take the problem seriously,” she wrote.
Convirs-Fowler similarly compared the law to a kind of digital indecent exposure.
“Everybody is talking about, ‘What happens if?’ Well, right now it's illegal if it's in person,” she said before pointing to the real-life impact the unwanted behavior was having.
“We’ve got to try something,” she added before the body voted 8-5 with one abstention to pass it by indefinitely. The group’s only two female members voting in support of the effort.
Editor’s note: This story has been edited to correctly reflect Morrissey’s time in jail from one year to three months.Follow @@BradKutner
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