Last week, nearly 30 new state laws went into effect in Florida, including the outlawing of “sexual cyberharassment,” commonly known as “revenge porn,” which is when someone posts an explicit image of another online without permission.
The law, which passed both the state House and Senate virtually unanimously in the spring (only two legislators in each chamber voted against the measure), defines sexual cyberharassment as “publish(ing) a sexually explicit image of a person that contains or conveys personal identification information … without the person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the person.”
Violators could face a first-degree misdemeanor charge, or up to a year in jail; repeat offenders could be socked with a third-degree felony, which carries a maximum five years in prison.
Twenty-six states now have some form of law regarding “revenge porn.” And while I applaud the crackdown on this particular heinous act by both Republicans and Democrats, I am a bit concerned about how effective it will be, and whether it will hold up in our courts. The new law amended an existing state statute to permit law enforcement officers to arrest individuals without a warrant when there is probable cause to believe the suspect has committed sexual cyberharassment. Additionally, the law permits a search warrant to be issued for a private dwelling if evidence relevant to proving sexual cyberharassment is contained therein.
My concerns revolve around the United States Constitution, specifically that pesky First Amendment and that equally troublesome Fourth Amendment, and how these two measures could impact how this particular legislation stands up when court cases are being filed and prosecuted. Conviction is made difficult by the First Amendment, which states that "Congress shall make no law … abridging the freedom of speech, or of the press.” Today, this includes the Internet; to place restrictions on what individuals can post online to us would be a clear violation of the First Amendment; speech on the Internet has full First Amendment protection.
The Fourth Amendment is the part of the Bill of Rights that prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. To me, the key word here is “warrant;” as I noted two paragraphs ago, under the new Florida law law enforcement officers do not need to secure a warrant in advance to arrest individuals suspected of sexual cyberharassment. Under the Fourth Amendment, search and seizure - including arrest - should be limited in scope according to specific information supplied to the issuing court; without a warrant, there is no check-and-balance taking place by the justice system.
The constitutionality of this type of legislation is why some states’ revenge porn laws have been halted by federal courts. For example, Arizona’s law had made it a felony to "disclose, display, distribute, publish, advertise, or offer" an image of a nude person without that individual’s consent. However, it was so overly broad, it could have punished a wide range of constitutionally protected communication, including "a library lending a photo book about breast feeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison, or a newsweekly running a story about a local art show," according to the American Civil Liberties Union.
I agree that sexual cyberharassment is a bad thing. I applaud our elected officials for trying to do something about it. And I hope my assessment is wrong. But I do have concerns Florida’s leaders will need to try, try again on this type of legislation.
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