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Tuesday, August 2, 2016

Vermont’s Revenge Porn Law Under First Amendment Challenge

Posted By on Tue, Aug 2, 2016 at 9:33 AM

click to enlarge Vermont Superior Court in Bennington - JANA SLEEMAN
  • Jana Sleeman
  • Vermont Superior Court in Bennington
One year after it was implemented, Vermont’s “revenge porn” law, which forbids the distribution of sexually explicit images without the subject’s consent, is under legal threat.

A Bennington County judge recently threw out what appears to be the first criminal case brought under the law, citing concerns about its constitutionality. The case is likely to be heard by the Vermont Supreme Court.

Defense attorneys and other critics of the law, which was passed in response to concerns about vengeful ex-lovers posting explicit images of their former partners on social media, warned lawmakers in 2015 that it could run afoul of First Amendment protections. Previously, such cases could be heard in civil court, but there were no criminal penalties.

The recent case centers on a Bennington County woman who sent nude photographs of herself to her ex-boyfriend via Facebook in October 2015.

Rebekah Van Buren, a woman who was involved with the ex-boyfriend at the time, accessed a private part of his Facebook account without his permission. Van Buren then posted the nude pictures on his public Facebook page and identified the woman in the pictures.

Van Buren told police that she posted the pictures to harm the ex-girlfriend’s reputation and “for revenge,” according to court filings.

Judge David Howard ruled that the photos in the case were not necessarily “obscene,” a designation that allows authorities to limit free speech rights, and said, “the possible overbreadth of this statute is a concern.”

“Even if the court assumes the State meets its burden of a compelling governmental interest, being protecting its citizens privacy rights and perhaps reputational rights, it does not meet its burden of showing there are no less restrictive alternatives, such as civil penalties … that would be as effective,” Howard wrote in dismissing the case.

If convicted, Van Buren would have faced up to two years in prison and a $2,000 fine.

“It’s an accurate decision,” Van Buren’s attorney, Albert Schaal Fox, said of the dismissal. “The statute as it’s written is dangerously overbroad. I don’t think anyone has come close to demonstrating the need for such an abridgment of First Amendment rights in Vermont. It’s very much a case of the legislature addressing a problem that doesn’t really have a demonstrated existence. To limit First Amendment speech rights without meeting that criteria of [obscenity], that has a chilling effect and is entering into an uncertain world of what is and isn’t a crime and I think that’s disturbing.”

Prosecutors are seeking to appeal the case to the Vermont Supreme Court. Bennington County State’s Attorney Erica Marthage did not respond to a request for comment.

Vermont Defender General Matt Valerio, who testified against the bill and warned lawmakers that a constitutional challenge would be inevitable, said the Bennington County case “is an odd application of the revenge porn statute.”


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About The Author

Mark Davis

Mark Davis

Bio:
Mark Davis is a Seven Days staff writer.

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