Vermont’s “Revenge Porn” Crime Survives Constitutional Challenge–State v. VanBuren

Like many other states, Vermont has a relatively new crime against nonconsensual pornography (NCP) dissemination. A lower court ruled that the crime was facially unconstitutional. The state appealed. In this ruling, the Vermont Supreme Court grants the “extraordinary” relief of declaring the crime constitutional. Equally remarkably, the court concludes that the crime doesn’t fit into any of the existing categorical exclusions from the First Amendment, such as obscenity, but the law nevertheless survives strict scrutiny. Distinction from Obscenity: “The offending disclosures pursuant to Vermont’s statute, by contrast, need not appeal to the prurient interest or be patently offensive. Typically, their purpose is to shame the subject, not arouse the viewer….Given the ill fit between nonconsensual pornography and obscenity, and the Supreme Court’s reluctance to expand the contours of the category of obscenity, we conclude that the speech…

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