Osinger, The Revenge Porn Holding That Wasn’t

Mark the name United States v. Osinger.  It’s going to be the flagship opinion to prove that the anti-revenge porn laws aren’t unconstitutional. I blame my buddy, Venkat Balasubramani for this, because he wrote a post about this interesting decision that included a portion that created confusion in some dicta in the opinion. And, well, that’s all it takes for a myth to be born.

Osinger was prosecuted for cyberstalking under 18 U.S.C. § 2261A.  Among the things he did was create a phony Facebook page for his ex-girlfriend and post grossly inappropriate photos.  He sent emails to her boss, co-workers and family members about it.  And not to be subtle, he sent her about 40 texts over two days to let her know how he was going to destroy her life.

On appeal, Osinger contended that the cyberstalking statute was both facially and as-applied unconstitutional under the First Amendment. The 1st Circuit easily disposed of the facial challenge, as the crime was based on conduct, not speech. To the extent speech supported the crime, the statute was content neutral and the speech fell into the recognized categorical exception of “speech integral to crime.”

Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were “integral to criminal conduct” in intentionally harassing, intimidating or causing substantial emotional distress to V.B.

As Venkat explains, the “speech integral to crime” exception is unsatisfying because it’s circular, but it nonetheless remains an exception to the First Amendment, even if it’s a chicken/egg problem.

The as-applied challenge, similarly rejected under this exception, had a twist that gave rise to the confusion.  The appellant sought to use the First Amendment as a sword, rather than a shield, asserting that he was entitled under the First Amendment to express himself, so much so that his constitutional right trumped the crime of cyberstalking, using, wait for it, revenge porn.

And that’s where the confusion comes into play.  The majority opinion states:

In the limited context of 18 U.S.C. § 2261A, Osinger’s speech is not afforded First Amendment protection for the additional reason that it involved sexually explicit publications concerning a private individual.

The paragraph quotes language from another cyberstalking case, United States v. Petrovic:

“[T]he intimately private facts and photographs revealed by [the defendant] were never in the public domain before [the defendant] began his campaign to humiliate [the victim].” Additionally, “the public has no legitimate interest in the private sexual activities of [the victim] or in the embarrassing facts revealed about her life,” and “the information [the defendant] publicized to the community was highly offensive.”

All of which is undoubtedly true, and leads to the inexorable conclusion:

“The communications for which [the defendant] was convicted under § 2261A(2)(A) may be proscribed consistent with the First Amendment. The statute is not unconstitutional as applied to [the defendant].”

Much as the rhetoric is heartwarming, there are two points that cannot be ignored. First, this expressly applies to the offense of cyberstalking, which is constitutional because it is based upon conduct, not speech.  Second, the use of speech in conjunction with conduct is constitutional because it falls with the recognized exception of “speech integral to criminal conduct.”  To divorce the rhetoric from the holding is to live in a fantasy.

Unfortunately, when Venkat wrote about the Osinger opinion, he created confusion:

The court mentions in passing that in the context of the anti-stalking statute, Osinger’s conduct:

is not afforded First Amendment protection [because] it involved sexually explicit publications concerning a private individual.

The court continues that the public has no “legitimate interest” in this speech, and publication of these types of private facts would be “highly offensive”.

Pulling a phrase out of context rarely serves to illuminate.  The problem is exacerbated when he opines:

This ruling confirms that in the view of federal appeals courts, a person who engages in the nonconsensual posting of explicit material can be validly targeted under the federal anti-stalking law when it’s part of a course of conduct (which it often is).

The problem isn’t that Venkat is wrong, exactly, but that it puts the cart before the horse.  If one tries to focus on Osinger as if it was a revenge porn case, this is how one would look at it. But it’s not a revenge porn case. It’s a cyberstalking case, and absent the offending conduct of cyberstalking, it is unavailable for use to prevent revenge porn. Indeed, Osinger tried to use his revenge porn posting to overcome his criminal conduct, as if his free speech rights were sufficient to compel the court to ignore his physical conduct.

The confusion raised by all of this was twofold. On the one side, the question was raised whether this offered an alternative crime to stop revenge porn such that new criminal laws weren’t needed.  The answer seems to be “no,” at least to the extent that calling out “Praise the Lord” doesn’t excuse a murder.  If there is cyberstalking, then other things that occur in tangent can lose their protection under the “speech integral to crime” exception. But it still requires a crime other than revenge porn.

On the other side, the rhetoric about revenge porn as was done by Osinger is entirely appropriate, as his conduct was disgusting and disgraceful (I know, I’ve been vilified as a revenge porn apologist, but that’s just because they want to blunt my criticism of bad law. It’s just what children do).  But that doesn’t mean the arguments that it magically loses First Amendment protection because it really, really should finally have some judicial support.

As the concurrence in Osinger notes,

Osinger’s case fit comfortably within the framework of the prevailing First Amendment doctrine because (1) there’s a valid criminal statute, and (2) while there may be pure expressive elements of Osinger’s speech, its “sole immediate object” was the commission of the stalking offense. Judge Watford acknowledged that speech is not excluded from the bounds of First Amendment protection just because it’s “harassing or offensive.

The ruling provides no support for advocates of criminalizing revenge porn, but that won’t stop them from touting it as proof. Now you know better.

16 thoughts on “Osinger, The Revenge Porn Holding That Wasn’t

  1. Venkat

    Scott- thanks!, I’ll add a link.

    I read the opinion as saying if you have the intent to harass or intimidate someone and you use “the mail, any interactive computer service or electronic communication service” to engage in a course of conduct that causes someone “substantial emotional distress,” you can be on the hook. That seems significant in itself.

    The opinions say that “conduct” is required, but to me it seems like the conduct can consist of email/text/FB contacts. A barrage of e-mail/text contacts + veiled threats that culminates in posting explicit material can be targeted (according to these courts). I agree that merely posting revenge porn isn’t enough & from that standpoint, it doesn’t make sense to say that posting this type of explicit material is not protected, but it doesn’t seem like much else is necessary. This is a case where there was minimal physical contact and no explicit threat (except maybe relating to posting the material).

    1. SHG Post author

      You’ve misconstrued the nature of conduct. A barrage of unwanted emails to V.B., regardless of content, is conduct. Going to her place of employment is conduct. Sending emails to her co-workers, boss and family, regardless of content, was conduct. Creating a phony facebook page, regardless of content, is conduct. There was a ton of conduct here. Confusing the conduct with the content happens sometimes. Don’t feel bad.

      Cyberstalking is a dubious and vague crime itself, and fairly hard for criminal defense lawyers to accept. No reason why it wouldn’t be as difficult, if not more so, for you.

      1. Escape Artist

        I’m not sure I follow the conduct analysis you’re making. Conduct that simply amounts to speech is treated, as speech, isn’t it? A law that prohibited the act of posting an internet comment critical of the government would not escape 1st Amendment review because the statute prohibited the act of posting. Most of the acts you say were involved in this case seem similar. Texting, creating a facebook page, sending emails, all of that conduct is simply the conduct of engaging in speech. So isn’t the court necessarily deciding that the speech embodied in that conduct is not protected? Or, if a law prohibiting sending emails, creating facebook pages etc. for the purpose of causing emotional distress isn’t subject to scrutiny under the First Amendment, wouldn’t that same analysis apply to laws prohibiting the posting of sexual images of your ex-girlfriend to cause her emotional distress?

        1. SHG Post author

          Conduct that simply amounts to speech is treated, as speech, isn’t it?

          Absolutely correct. Osinger was convicted for stalking someone for the purpose of harassment and intimidation with intent to do so, which is the conduct prohibited by statute. The point is that the involvement of speech in addition to conduct doesn’t salvage the criminal conduct, and that’s why the First Amendment exception of speech integral to criminal conduct was invoked here.

          Or to put it more simply, committing free speech in the course of committing a crime does not absolve someone from culpability for the crime.

          1. Escape Artist

            But as I understand the case (from your description) the “stalking” behavior (almost?) entirely constituted speech-acts. To be clear, I don’t see anything wrong with criminalizing behavior like sending someone 50 text messages, and I’m personally comfortable with statutes that more broadly protect people from various forms of intentional emotional harm. And I do recognize that some courts have said that such criminalization addresses conduct rather than speech. But I don’t understood that analysis. Better, to my mind, to decide that the speech involved is unprotected speech, although it wouldn’t obviously fit into any of the existing categories for unprotected speech, or to decide that regulation of such speech satisfies the requisite level of scrutiny. I’m perfectly fine with either approach. But to simply say that quintessential acts of speech — such as sending an email, or making a phone call or creating a facebook page — stop being speech at all simply because they are repeated seems disingenuous.

            1. SHG Post author

              First, there was non-expressive conduct here, even though it’s not terribly notorious, when he went to her place of business. Second, sending emails, making phone calls, etc., are not speech. It’s what’s done with them that is expressive, not the act of pushing buttons. If the crime was based on the content of the emails, phone calls, Facebook page, then that would be speech-based. But it wasn’t. It was based on his conduct being intended to harass and intimidate.

              I realize this seems very fine, nuanced and can be hard to differentiate, but if I send you 100 unwanted emails a day, each saying “you are a very nice person,” with the requisite intent, that can be stalking. It’s not the speech, the “you are a very nice person,” but the conduct of sending 100 emails. The same would be true if there was nothing written in the emails at all.

    2. Daniel

      The conduct/speech distinction that Scott tries to draw (and which to be fair many appeals courts have also tried to draw) simply isn’t sustainable because it’s based upon legal alchemy. It turns some conduct into speech (Texas vs Johnson, US vs Alveraz) and it turns other speech into conduct (cyberstalking, revenge porn).

      The 1A protects the right to free speech rather than the right of someone not to listen. If a single course of conduct is legitimate how does 1000 instances of that conduct become illegal? The argument claims to rely on the intention of the speaker but it seems that in practice it is the subjective experience of the listener that determines the legality. If I tell my wife 1000 times I love her that is legal but if I tell someone I dislike 1000 times that I love them that is illegal. What the difference? It is not the literal content of the speech because that is the same in both cases. It isn’t the mere repetition of the conduct because that too is the same in both cases. The only differences are (a) the perceived state of mind of the speaker and (b) the impact the speech has on the listener. As for (a) the question becomes what evidence can the court look to to determine the state of mind and the key thing that we do not see is any state of mind evidence. Revenge porn cases are not being treated as state of mind cases such as one sees in fraud. Indeed, simply by labeling them “revenge” we have already decided the case because the defendant’s state of mind is the whole case. As for (b) the problem is that it’s not self-evident how one party’s desire not to listen eviscerates another party’s right to free speech. Certainly it’s difficult to read US v Alveraz to support that proposition.

      At the end of the my own view is that I’m not confident that even cyberstalking statutes can pass SCOTUS in light of Texas vs Johnson. If we don’t see any more action here the Delaware shooting case is likely to provide some fireworks because there the prosecutor wants a life sentence for cyberstalking. But I’m simply not impressed by these attempts to get around the 1A when someone talks in ways we don’t like by labeling it conduct.

      1. SHG Post author

        The argument claims to rely on the intention of the speaker but it seems that in practice it is the subjective experience of the listener that determines the legality. If I tell my wife 1000 times I love her that is legal but if I tell someone I dislike 1000 times that I love them that is illegal. What the difference?

        I think this is a very strong argument against all harassment-type laws, and I completely agree with your point that where an element of the crime is dependent on the other party’s feelings, it is unconstitutional. But much as I hate the conduct/speech distinction that courts draw, the “speech integral to criminal conduct” exception remains the precedent despite the fact that you (and I) think it shouldn’t be.

        But your 1000 instances of conduct (with intent), regardless of whether it includes a speech element, isn’t quite so easily dismissed. Can you call someone every minute, 24 hours a day, in perpetuity, and it’s okay because if they answer the phone, you are going to say “hi,” then hang up?

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  3. Venkat

    Conduct or no conduct, if a barrage of communications + posting explicit photos can be proscribed, I would guess that covers many revenge porn scenarios..

    1. SHG Post author

      If, in the course of cyberstalking, revenge porn happens, then absolutely. Same with extortion, if revenge porn happens as well. Same with any other crime, should there also be revenge porn. And nobody will cry for Osinger getting convicted for his conduct here or feel badly because it also involved revenge porn.

      What he did here was odious. And thankfully, he also committed a crime.

    1. SHG Post author

      Ah. While that’s not the topic under discussion in this post, I do not. I agree with the facial challenge on the bases of vagueness and overbreadth.

  4. Erica Johnstone

    Hi Scott,

    I’d always assumed that the perpetrator’s speech was the act of posting, but I’m second guessing that assumption after reading your post and comments on the conduct/speech distinction, which seem to say that the speech is the content of the post (and not the push of the button as that would be conduct). My question to you would be, if we look to the content of the perpetrator’s post to find the poster’s speech, what is the speech? I’ve been puzzled by this for a longtime, am frustrated by the lack of specificity surrounding the alleged speech of the perpetrator, and would appreciate your thoughts on this point.

    Let’s take the usual nonconsensual porn scenario, which happened in Osinger. A couple shares intimate photos/videos for his/her eyes only during the course of their relationship. They break up. The perpetrator goes online and creates a profile in the victim ex’s name to which the perpetrator posts the sexually explicit content of the victim ex. If we look to the content of the post, then we see a victim ex performing sexual acts. We know that nude dancing gets protection under the First Amendment. But, that speech belongs to the originator, the victim ex, not the perpetrator. Also, there is the “concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect…,” Harper & Row v. Nation Enterprises, which in this scenario would be the concomitant freedom not to speak (i.e., nude dance) publicly. But again, this right belongs to the victim ex, not the perpetrator.

    What is the perpetrator’s speech? Curious to know your thoughts.

    Best,
    Erica

    1. SHG Post author

      But, that speech belongs to the originator, the victim ex, not the perpetrator.

      This is questionable proposition, and always has been. When you give something to someone else, it’s theirs to do with as they please. If this was a gift of property (other than an engagement ring), there would be no question but that the property belongs to the recipient. But even when it’s not property, the law generally deems it the recipient’s unless there was some agreement in advance that title wouldn’t transfer.

      If you send me an email, and ask me to keep the content to myself even though I didn’t agree beforehand that I would, and then I publish, it’s fair game for me to do so. Yet, with nonconsensual porn, there has been a general acceptance that the rules are different, though no one has ever come up with a reason why that would be. I don’t say this to raise a problem with it, but that the proposition that would apply to all other things remains the legal obligation nonetheless.

      Also, there is the “concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect…,” Harper & Row v. Nation Enterprises, which in this scenario would be the concomitant freedom not to speak (i.e., nude dance) publicly.

      This is a “freedom” not to speak, not a duty not to speak. No one forced Osinger to publish the porn, and he certainly had the freedom to not do so.

      But again, this right belongs to the victim ex, not the perpetrator.

      Here’s where the two come together. Is it the victim ex? Is it also not the perpetrator? The argument is that there is an implicit agreement that the recipient won’t use such images in a way that the sender didn’t intend, even if unstated. And it’s not hard to appreciate the impropriety of doing so. It’s just wrong, and anyone who would do so is a complete asshole. But is that enough to create a duty that gives rise to a crime? That’s the question, and there is a lot of law that says no.

      But when we put this in the context of an Osinger, whose use of nonconsensual porn is exactly the evil that we find most offensive and most worthy of criminalizing, it pushes the question to the extreme. What Osinger did was terrible, and most of us can agree that if we could somehow isolate this sort of extreme conduct and criminalize it, it wouldn’t be the worst thing in the world. No one has come up with a viable way to do so yet.

      Yet, if there could be a law that isolated this speech, there remains a question about whether it’s the victim ex’s to control or the recipient’s (notice I didn’t use perpetrator, because if the recipient is entitled to publish any property, even intangible, given him, then he’s not a perpetrator).

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