Warwick, RI — Gov. Gina Raimondo has vetoed the General Assembly’s legislation intended to ban revenge porn and sextortion on free speech grounds, drawing praise from media and free speech organizations, including the Rhode Island Press Association, and the protest of RI Attorney General Peter Kilmartin.
The legislation was sponsored by Rep. Robert E. Craven, Sr. (D., District 32 – North Kingstown) H 7382 and Senator Erin Lynch Prata (D-District 31, Warwick, Cranston) S 2644 at the request of RI Attorney General Peter Kilmartin.
Free speech advocates urged Raimondo to veto the legislation, stating that the bill was so broadly worded that it could make criminals of people involved in neither revenge nor porn, and would abridge the First Amendment rights of the media, according to a release from the RI ACLU.
“The bill could have limited the distribution of a wide array of mainstream, constitutionally protected material, including items of legitimate news, commentary, and historical interest. For example, use of images of Holocaust victims or prisoners at Abu Ghraib or, to take a more recent example, some of the infamous Anthony Weiner photos, would have likely been prohibited under the terms of this legislation,” the ACLU wrote in response to the veto.
“The veto message cites possible images that would be broadly swept under this act such as photos of abuse at Abu Ghraib, wartime atrocities or humanitarian disasters like famine, interestingly enough similar images that opponents used in their opposition testimony, that could not be farther from the truth. This statute was drafted to contain five (5) different exemptions based on at least eight (8) other states laws that would protect every conceivable scenario of protected speech, therefore, the only scenario this bill criminalizes is the dissemination of sexually explicit and purely private images without the consent of the victim,” Kilmartin wrote in protest of the veto.
“The Rhode Island Press Association applauds Governor Raimondo for her veto of this bill which would have had some serious implications for the news media in the state. The legislation, as written, would have meant the news media could face criminal penalties if they were unable to prove to a jury that photos they published were in the public interest. This would have a chilling effect in a society where a free press is essential to our democracy,” said Linda Lotridge Levin, of the Rhode Island Press Association.
“Opponents of this bill wrongfully suggest that intent to harass motive requirements are necessary. This is a red herring. Harassment laws already exist and are inadequate to respond to the privacy concerns regarding sextortion. If intent to harass or other limiting intent language were to exist, as opponents of this bill misleadingly propose, a sexploiter who seeks to profit off the exploitation of another can do so as long as they do not intend to harass. This type of language would create a realistically unenforceable statute and be a defense attorney’s dream,” Kilmartin wrote.
“Booksellers are very grateful to Governor Raimondo for recognizing that the bill passed by the legislature does not provide sufficient safeguards for the sale of books and other First Amendment-protected material. Without such safeguards, there would be a chilling effect, leaving booksellers uncertain about whether a book on the shelf is illegal and must be removed. Future legislation on this subject should require evidence of malicious intent in the distribution of these images,” said Chris Finan, Director of the American Booksellers for Free Expression.
Kilmartin dismissed concerns about the bill’s failure to address intent. “State and federal privacy laws do not contain specific motive requirements and certainly do not include an arbitrary terms of intent requirements. For example, Rhode Island’s comprehensive identity theft protection law penalizes unauthorized disclosure of private information with no requirement of an intent to defraud. This is also true of medical records laws and our financial transaction fraud law,” he said.
“While the bill does include an exemption for items that are “in the public interest,” the groups pointed out in requesting the Governor to veto the legislation that this does not offer news publishers any meaningful protection, as the final determination of whether the material constitutes a matter “in the public interest” would be left to a jury. Editors and producers would have no way of knowing in advance whether an image would be deemed to fall into this category or not, which would create a substantial and unconstitutional chilling effect on speech. Other states in New England that have enacted this type of legislation have passed much narrower versions to mitigate these constitutional concerns,” said Steven Brown, Executive Director of the ACLU of Rhode Island.
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