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Grimace's butt is protected speech under the First Amendment

Ronald and Wendy are in a committed relationship. One day Wendy is perusing Ronald’s phone when she comes upon something that shocks her. It’s a text from Grimace attached with a photo.

Hey Ronnie, I know you miss these McMuffins. Come on over to unwrap the happiest meal of your life! XOXOXO

Wendy is appalled. Grimace has a reputation as a home wrecking harlot. Wendy is not going to stand for this tramp trying to steal her man. Wendy posts the photo to her private Instagram account accompanied with the following text: Beware the neighborhood slut Grimace! The photo is removed by Instagram within hours but not before dozens of people have copied it and forwarded it to their friends. Eventually the photo makes its way to Mayor McCheese who fires Grimace from his government employment. Grimace calls the police who go to Wendy's house and arrest her for unlawful dissemination of an image in violation of Virginia Code §18.2-386.2. Does Wendy have a defense?

38 states and D.C. have recently passed "revenge porn" laws. Virginia's version became law in 2014. It punishes as a class 1 misdemeanor:

Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image.

Who could have a problem with that right? Nobody wants nekkid photos or videos of themselves posted on the internet without permission. The problem is that this law is a vastly overbroad and blatant violation of the First Amendment.

This is the nutshell First Amendment analysis:

1. Does the statute restrict speech?

Yes. The sharing of videos and images is obviously speech under the First Amendment.

2. Is the statute a content based restriction?

Yes. If it's necessary to look at the content of the speech to decide if the speaker violated the law, then the regulation is content-based. This law is clearly content-based because it's necessary to look at what the video or photos show to determine if the speaker has violated the law.

3. Does the law prohibit only speech that is not historically protected?

No. This is the heart of the problem with the law. If a law is a content based restriction, it can only restrict categories of expression that are historically unprotected. The list of categories is small and the only possibly relevant one here is obscenity. Obscenity is defined as appealing to the prurient interest. This law goes far beyond prohibiting only obscene images. This law prohibits disseminating images of “buttocks” (see Grimace's glorious booty) and the “female breast." Under this law, images of a nude dead body or a mother breastfeeding would qualify. Given the lack of any narrowing definition of "breast" or "buttocks," it's arguable that even photos of women in bathing suits or displaying cleavage would qualify. That's clearly not obscenity.

Does this appeal to your prurient interest?

4. Does the law satisfy strict scrutiny?

No. Content-based regulations are presumptively invalid and subject to strict scrutiny. Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest. If a statute is substantially overbroad, it is by definition not narrowly tailored. This law is massively overbroad. Among the many, many examples of images that would fall under it are (1) the iconic Pulitzer Prize-winning photograph, “Napalm Girl,” which shows a girl, unclothed, running in horror from her village during the Vietnam war; (2) the images depicting the abuse of unclothed prisoners at Abu Ghraib prison in Iraq; (3) images of breastfeeding mothers.

5. Does the intent language in the statute save it?

No. The law includes an intent element which purports to criminalize only “malicious dissemination” “with the intent to coerce, harass, or intimidate.” Outside the established unprotected categories, speech is protected under the First Amendment regardless of whether that speech was made with an intent to “coerce, harass, or intimidate” and regardless of whether the speech was “malicious.” (whatever the hell that means; see Robert Herron's excellent blog post anticipating the First Amendment problems with this law when it was freshly passed.) The only circumstance in which protected private speech can be restricted is when it's shown to be likely to incite violence.

6. Examples of overbreadth

I've already explained why the law is facially unconstitutional, but I'll go the extra step of giving some examples of clearly constitutionally protected speech that would be criminalized under this law. (1) a breastfeeding advocate e-mails photos of a breastfeeding mother in an attempt to coerce and harass a coffee shop owner into changing a no breastfeeding policy; (2) a college professor organizes a group that sends photos of the Abu Ghraib scandal to politicians in an effort to coerce and harass them into not supporting future wars; (3) concerned citizens email photos of a U.S. congressman engaged in “sexting” to his congressional office in an effort to coerce, harass, and intimidate him into resigning. (stole this one from Robert Herron's blog post).

7. Conclusion

This post is not meant to minimize the fact that having private intimate photos plastered onto the internet can be emotionally devastating. But we have to recognize that not every bad thing can be solved with a criminal law. The desire to prevent emotional harms doesn't trump the First Amendment. It might be possible to write a "revenge porn" law that passes constitutional muster (although it would be really difficult). This one isn't even close.

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