Justices: Indiana’s ‘revenge porn’ statute constitutional

A Hoosier man was properly charged under a law that criminalizes the distribution of nonconsensual porn, Indiana Supreme Court justices ruled in an unanimous Tuesday reversal that concluded the statute is constitutional.

Without the knowledge of his then-girlfriend, Conner Katz in March 2020 captured cell phone video of her performing oral sex on him. He then sent it to another ex-girlfriend via Snapchat, a social media platform.

When the woman depicted in the footage learned that a video was taken and sent without her knowledge, her lawyer reported the incident to the local police.

Katz was then charged under Indiana Code section 35-45-4-8 – commonly known as the “revenge porn” law  – in May 2020.

The law, which took effect July 1, 2019, makes posting an intimate image a Class A misdemeanor for a first offense and a Level 6 felony for a second offense. Legislation concerning revenge porn came into the spotlight in response to a growing phenomenon of posting online nonconsensual pornographic images aimed solely at hurting or embarrassing a spouse or significant other.

An image under the law is defined as a photograph, digital image or video that depicts sexual intercourse, other sexual conduct or the exhibition of the uncovered buttocks, genitals or female breast.

The law also makes it a crime for someone to distribute such an image with intent to harm, harass, intimidate, threaten or coerce the other person. Additionally, it makes it a crime to post the image without the consent of a person depicted in that image, even if that person initially agreed to partake in the image.

Katz challenged the statute’s constitutionality on free speech grounds in a pre-trial motion to dismiss and argued that the state failed to sufficiently allege a violation of the statute because the video did not show the victim’s face or his penis.

He also maintained the statute was overbroad and a content-based restriction that does not survive strict scrutiny. To support that, Katz relied on two appellate decisions from Minnesota and Texas that found similar statutes unconstitutional under the First Amendment.

The Steuben Circuit Court dismissed the case, concluding  the statute was overbroad and unconstitutional under the First Amendment and Indiana Constitution without further explanation.  It also held that that there was “no reason why the logic contained in the Minnesota and Texas decisions would not apply to the Indiana Statute,” and adopted the decisions in State v. Casillas, 938 N.W.2d 74 (Minn. Ct. App. 2019) and Ex parte Jones, 12-17-00346-CR, 2018 WL 2228888 (Tex. App. May 16, 2018).

The trial court rejected Katz’s other arguments, including that the state failed to allege an offense.

Justices agreed to hear the case on direct appeal under Indiana Appellate Rule 4(A)(1)(b). Katz cross appealed, arguing that the Supreme Court need not reach the constitutional issues because “dismissal should be upheld on grounds that the State failed to state an offense” because the woman in the footage was not identifiable.

But the high court disagreed, concluding that the state did sufficiently allege an offense.

“Whether the image sufficiently depicted an ‘intimate image’ is an evidentiary question for the jury at trial; it is not properly raised by a motion to dismiss,” Justice Mark Massa wrote.

Justices held that because the charging information sufficiently alleged the offense, the trial court did not abuse its discretion in denying Katz’s motion to dismiss.

The high court further concluded that Section 9 of the Indiana Constitution protects videos as a medium under the right to speak and free interchange clauses. It also found that the state’s prosecution of Katz “more than satisfies this standard of imposing a direct and significant burden on his opportunity to express himself.”

But because it easily found Katz’s expressive activity constituted an “abuse,” the high court concluded the statute and Katz’s prosecution were constitutional.

“Under our rationality inquiry, we have no trouble concluding the impingement created by the statute is vastly outweighed by the public health, welfare, and safety served,” Massa wrote. “And the accompanying harms of this crime are all well within the State’s power to address.”

Turning to the First Amendment, the high court concluded the statute is narrowly tailored to serve the state’s compelling interest in protecting citizens from the harms of nonconsensual pornography and does not violate the U.S. Constitution.

“The State properly charged Katz with violating the statute. And the statute does not violate either the free interchange clause of the Indiana Constitution, or the First Amendment to the United States Constitution,” Massa wrote.

On a final note, the justices found that even if it needed to conduct an overbreadth analysis, the statute is not overbroad.

“Accordingly, we reverse and remand for further proceedings consistent with this opinion,” it concluded in State of Indiana v. Conner Katz, 20S-CR-632.

The Cyber Civil Rights Initiative and Dr. Mary Anne Franks submitted an amicus brief in support of the constitutionality of the statute.

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