The Revenge of Preemption
How to Correct Unintended Consequences of the Military’s“ Revenge Porn” Statute
The military’s new statute criminalizing “revenge porn” is a well-intended law that suffers from serious flaws and requires careful revision. Congress intended the statute, Article 117a, Uniform Code of Military Justice (UCMJ), to prohibit and punish the unauthorized distribution of sexual images without the consent of the individuals depicted in the images. As drafted, however, Article 117a may actually inhibit—rather than enable—the prosecution of “revenge porn.” Congress should revise Article 117a to remedy the problems that inhibit prosecution, and match the function of the law to its purpose.
First, this article discusses the phenomenon frequently called “revenge porn”—but more properly known as the wrongful distribution of intimate images (WDII). The phenomenon of WDII was central to the “Marines United” scandal, which led to the enactment of Article 117a.
Second, this article addresses several problems with Article 117a that work against the purpose of the statute. These problems include the fact that Article 117a does not prohibit WDII involving minors; it does not prohibit WDII that lacks a “direct and palpable” connection to the military; it lacks clarity in key language; and, due to the doctrine known as “preemption,” Article 117a likely prevents the military from prosecuting WDII that is not prohibited by Article 117a.1
Third, this article reviews guidance on how to address the problems in Article 117a drawn from military, federal, and state jurisprudence. These guideposts include how to ensure any revision of Article 117a does not handicap military prosecution of child pornography and how to revise Article 117a while respecting the First Amendment. The First Amendment limits the government’s ability to prohibit speech. To the extent WDII is a form of speech, the First Amendment is a challenge to prosecuting WDII. Nevertheless, states have successfully navigated this challenge, and state experiences are instructive for how to better prosecute WDII.
Finally, this article proposes specific changes to Article 117a. These proposed changes should empower the prosecution of WDII, while both preserving the ability to prosecute child pornography and respecting the First Amendment.
The Heavily Abridged History of “Revenge Porn” and Article 117a
The practice of using compromising information to gain advantage over another individual or to hurt an ex-lover is not new. Modern technology, however, enables wrongdoers to harm others on a scale that was once unthinkable. Smartphones allow individuals to easily record and share intimate events in ways inconceivable before 2007. When wrongdoers broadcast intimate images on the internet without the consent of those the images depict, the results can be catastrophic.2
“Revenge Porn” or the Wrongful Distribution of Intimate Images
The origin of the term “revenge porn” is an enigma shrouded in the dark reaches of the internet. By 2007, someone posted the term to Urbandictionary.com, accompanied by a definition consistent with the phrase’s popular use today.3 Whatever the origin of the term, by 2012, “revenge porn” was so common that some websites used it as a business model.4
For the purposes of this article, the term “revenge porn” refers to the practice of broadcasting or distributing—usually online—intimate images without the consent of the individuals depicted therein. The term “revenge porn,” however, is potentially misleading. First, wrongdoers might broadcast or distribute intimate images for motives other than revenge. Second, intimate images may not be—strictly speaking—pornographic.5 The term “revenge porn” lacks the precision necessary to properly describe the conduct at issue; this article uses a different term: the wrongful distribution of intimate images (WDII). The term WDII is consistent with the language of Article 117a, and is consistent with experiences of victims, who report that the term “revenge porn” is misleading.6 A prime example of how the term “revenge porn” can be misleading is the 2017 “Marines United” scandal, which included both pornographic and non-pornographic images that were harmful regardless of the motive for their publication.7
The “Marines United” Scandal
In early 2017, a Marine Corps veteran reported that the 30,000-member Facebook group, “Marines United,” facilitated collection and distribution of a vast hoard of intimate photographs without the consent of the individuals appearing in those photographs.8 The images primarily depicted women associated with the Marine Corps—because the women were themselves Marines, Marine Corps veterans, current or former family members of Marines, or current or former intimate partners of Marines.9 The images were intimate in nature, including nude photographs.10 The “Marines United” Facebook group also generally disparaged women.11
While widespread misconduct is always harmful to the armed forces, the “Marines United” scandal was particularly ill-timed. The scandal broke shortly after the Marine Corps first incorporated women in Marine infantry units.12 Further, the scandal that began with “Marines United” soon spread to other branches of the armed forces.13 News reports about the military and the integration of women into combat arms units were replete with references to the “Marines United” scandal.14 While the “Marines United” Facebook group was reputed to have over 30,000 members, the Marine Corps only court-martialed eleven Marines for misconduct related to the scandal.15
Congress Responds by Creating Article 117a
Congress almost immediately expressed strong concern about the “Marines United” scandal and the practice of WDII in the military.16 Later that year, Representative Martha McSally introduced the PRIVATE Act, a bill to prohibit WDII under a new article of the UCMJ—Article 117a.17 Contemporaneous statements from the House floor explicitly referenced the “Marines United” scandal as a reason for the PRIVATE Act.18 Eventually, the National Defense Authorization Act for 2018 incorporated the PRIVATE Act, and the President signed it into law on 12 December 2017.19 Thus, Article 117a came into being.
Article 117a is a lengthy statute, running more than 540 words. In relevant part, Article 117a prohibits the broadcast or distribution of an “intimate visual image” or a “visual image of sexually explicit conduct” without the consent of the individuals depicted in such an image.20 In other words, Article 117a prohibits WDII. Unfortunately, other provisions of Article 117a introduce problems that likely render the new statute more hindrance than help in the prosecution of WDII.
The Problems with Article 117a
Across the armed forces, it appears there have only been twenty-three successful prosecutions of Article 117a offenses between the statute’s enactment and the final edits to this article—over three and a half years later.21 This number seems remarkably low considering the urgency with which Congress enacted Article 117a after the “Marines United” scandal. The comparatively low number of prosecutions is probably a result of problems in the article itself. Article 117a includes several clauses that raise potential problems for prosecuting WDII. First, it does not prohibit the broadcast or distribution of WDII involving minors.22 Second, Article 117a is limited to prohibiting WDII that has a “reasonably direct and palpable connection to a military mission or the military environment.”23 Third, Article 117a uses convoluted language and definitions that may impede prosecution. Finally, the doctrine of preemption aggravates the foregoing issues and may prevent the military prosecution of WDII that otherwise could have been prosecuted before Article 117a came into effect. This article addresses each of these problems in turn.
Article 117a Does Not Apply to WDII Involving Minors
Article 117a only prohibits WDII if the person depicted “is at least 18 years of age at the time the intimate visual image or visual image of sexually explicit conduct was created.”24 Congress likely included the eighteen-years-of-age element because it did not want military prosecutors bringing charges under Article 117a that are more properly alleged as child pornography under Article 134. Floor comments of the PRIVATE Act repeatedly referred to the nonconsensual distribution of “pornography.”25 This underscores one of the reasons for abandoning the term “revenge porn” and adopting the language of “WDII”: under Article 117a, images need not be pornographic to fall within the scope of Article 117a. “Intimate visual images” under Article 117a include even underwear-clad genitals and female breasts. By contrast, “pornography”—at least under the definition of child pornography found in the Manual for Courts-Martial ( MCM )—requires unclothed genitals and either sexual conduct or a focus on the genitals.26
In short, while a topless photograph of a seventeen-year-old girl usually does not constitute child pornography under Article 134, it usually does constitute an “intimate visual image” under Article 117a. Unauthorized distribution of such an image would not be illegal under Article 117a, so long as the victim was under eighteen years of age at the time the image was recorded. Absurdly, it is a defense to a charge under Article 117a that the victim was a child.
As might be expected, sending risqué photographs by cellular phone is distressingly common among teenagers.27 If anything, teenagers are at a higher risk of being the victim of WDII.28 Unfortunately, Article 117a does not prohibit Service members from broadcasting or distributing intimate images of minors. Congress should remedy this gap in the law.
Article 117a Only Applies to WDII with a Direct and Palpable Military Connection
The requirement that an accused’s conduct have “a reasonably direct and palpable connection to a military mission or military environment” attempts to insulate Article 117a from First Amendment challenges. Congress adopted this unusual phrasing from case law on the balancing test for speech-related offenses charged under Article 134 as either prejudicial to good order and discipline or service discrediting.29
Because of the direct-and-palpable element, it is unlikely the military would be able to prosecute a Service member who sent intimate images of a civilian to the civilian’s friends or family.30 Similarly, Article 117a probably does not apply to intimate images of a civilian posted on a website unrelated to the military.
The prevalence of state laws against WDII strongly suggests that it is not a military-specific problem.31 The link between the “Marines United” Facebook group and the military was probably more of an exception than a rule in cases of WDII. Thus, there is little reason to believe WDII committed by Service members will typically have a sufficient nexus with the military to meet the direct-and-palpable element of Article 117a. Congress should not limit prosecution of WDII to unusual cases.
Convoluted Language in Article 117a May Endanger Prosecutions
A third issue arising from Article 117a is the convoluted nature of the statutory language itself. The statute repeatedly refers to two defined terms: “intimate visual image” and “visual image of sexually explicit conduct.” Those terms are repetitive and cumbersome. More importantly, those terms mask deeper inconsistencies in the language of the statute.
When the word “image” is used in place of “intimate visual image or visual image of sexually explicit conduct,” Article 117a only prohibits the broadcast or distribution of an image when the “[image] was made under circumstances in which the person depicted in the [image] retained a reasonable expectation of privacy regarding any broadcast or distribution of the [image].”32 This clause seems reasonable until one reads the definition of “reasonable expectation of privacy.”
Article 117a defines a “reasonable expectation of privacy” as “circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.”33 In a vacuum, this definition also seems reasonable; but, when that definition is inserted into the relevant portion of Article 117a(a)(2), the result reads as follows:
[T]he [image] was made under circumstances in which the person depicted in the [image] retained [circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public] regarding any broadcast or distribution of the [image].34
This is nonsensical. While congressional intent is probably discernable from the surrounding context, the grammatical failure of the statute’s construction might leave it open to a challenge for vagueness.35
Article 117a May Preempt Charging WDII Under Article 134
“The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132.”36 The Court of Military Appeals defined preemption as, “the legal concept that where Congress has occupied the field of a given type of misconduct by addressing it in one of the specific punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting a vital element.”37 The preemption doctrine, however, does not automatically apply just because a charged Article 134 offense lacks an element in an enumerated article.38 To preempt a charge under Article 134, “it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way.”39
The test for preemption necessarily depends on the enumerated article at issue.40 In the case of Article 117a, the statute appears to represent Congress’s comprehensive action against WDII in the military. Therefore, courts will likely conclude that Article 117a preempts charging WDII offenses under Article 134—especially if the reason for bringing charges under Article 134 is that the offense had a child victim or lacked a direct and palpable military connection. While the military could have prosecuted such misconduct under Article 134 prior to the enactment of Article 117a, due to Article 117a and the doctrine of preemption, WDII involving minors and WDII without a direct and palpable military connection are now likely beyond the reach of courts-martial. Congress should find this outcome unacceptable.
Guideposts for Revising Article 117a
The main problems with Article 117a originate from well-intended efforts to address legitimate concerns. Congress probably intended the eighteen-years-of-age element to prevent Article 117a from undermining the prosecution of child pornography. Similarly, Congress probably intended the direct-and-palpable element to respect the protections of the First Amendment. Both concerns are valid, but Congress can better address them without inhibiting prosecutions.
Prohibiting WDII Without Undermining the Prosecution of Child Pornography
Congress likely included the eighteen-years-of-age element in Article 117a for two reasons. First, Congress may have been concerned that military prosecutors would elect to charge Article 117a rather than possession or distribution of child pornography in cases involving WDII that also constitutes child pornography. Second, Congress may have been concerned that Article 117a would preempt41 charging possession or distribution of child pornography—offenses that are still presidentially established under Article 134 rather than congressionally established under a separately enumerated article.
The first concern—that military prosecutors might elect to charge Article 117a instead of charging possessing or distributing child pornography—is likely misplaced. Military prosecutors are not likely to take it easy on Service members who possess or distribute images of child pornography.42 Further, child pornography is not a lesser included offense of Article 117a, or vice versa. For this reason, the two statutes are not mutually exclusive; it is possible to charge them simultaneously without offending the Double Jeopardy Clause of the Fifth Amendment.43 The second concern—that Article 117a might be interpreted to preempt child pornography charges under Article 134—can be addressed in one of two ways: either by explicitly disclaiming preemption or by codifying child pornography in the enumerated articles.
Congress may explicitly disclaim preemption in the text of Article 117a.44 For example, Congress could add a subsection (c) to Article 117a that states: “Nothing in this article may be interpreted to preempt the prosecution of child pornography under Article 134, Uniform Code of Military Justice, or under 18 U.S.C. § 13.” Remember, the doctrine of preemption focuses on whether Congress intended to occupy the field with a certain piece of legislation.45 There can be no clearer sign that Congress did not intend to occupy the field than Congress’s explicit statement to that effect in the text of the statute at issue.46
Congress may also eliminate the preemption issue by codifying the offense of child pornography. It may come as a surprise to some that Congress has never prohibited child pornography under the UCMJ. Instead, military prosecutors historically charged civilian federal child pornography laws through Article 134.47 Later, the President established parallel child pornography offenses in the MCM section elaborating on Article 134.48 To this day, Congress has never passed legislation prohibiting child pornography under the UCMJ. Correcting this bizarre omission would have the collateral effect of eliminating any question as to whether Article 117a preempts the prosecution of child pornography. Preemption simply does not apply to UCMJ articles other than 134.
Prohibiting WDII While Respecting the First Amendment
Congress took the term “direct and palpable” from a line of cases addressing when the military may punish conduct ordinarily protected by the First Amendment.49 A direct and palpable connection to a military mission or the military environment is part of the balancing test for whether speech-related misconduct may be punished under clause one or clause two of Article 134.50 Speech-related misconduct charged under Article 134 enjoys less First Amendment protection than similar civilian speech because of the strong government interest in maintaining good order and discipline in the armed forces.51 Thus, the direct-and-palpable element appears to represent congressional concern that Article 117a would not otherwise withstand a First Amendment challenge.
Congressional concern about First Amendment protections of speech is reasonable. Commentators have suggested the First Amendment makes it difficult, if not impossible to prohibit WDII.52 The First Amendment provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech.”53 Thus, courts may strike down some laws that prohibit speech as unconstitutional.54 For the purposes of the First Amendment, courts construe the term “speech” broadly, to include photography and other forms of expression.55
The right to free speech, however, is not absolute. There are categorical exceptions for types of speech that the First Amendment does not protect. As Chief Justice Holmes famously wrote, there is no protection for “falsely shouting fire in a theatre.”56 Commonly-recognized exclusions from First Amendment protection include incitement,57 threats,58 obscenity,59 and child pornography.60 The First Amendment does not protect speech subject to an exclusion. The Supreme Court has suggested that there may be “some [other] categories of speech that have been historically unprotected but have not yet been specifically identified or discussed as such.”61 The Court, however, has cautioned that the judiciary enjoys no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”62 Therefore, courts—at all levels—will probably not hold that WDII is subject to a previously unrecognized categorical exception to First Amendment protections.
Absent a categorical exception, restrictions on speech fall into two general categories relevant to Article 117a. First, content-neutral restrictions on speech are subject to a moderate level of protection under the standard known as “intermediate scrutiny.”63 Second, content-based restrictions on speech are subject to “strict scrutiny,” which is the most exacting standard of constitutional review.64
Unfortunately, “[d]eciding whether a particular regulation is content based or content neutral is not always a simple task.”65 Therefore, it can be difficult to predict which standard of review courts will apply to some statutes.66 Because it can be difficult to predict which standard of review courts will apply, any revision to Article 117a should use a belt-and-suspenders approach—designing Article 117a to trigger only intermediate scrutiny while also designing it to withstand strict scrutiny in case courts determine the higher standard of review should apply. The next two subsections address intermediate scrutiny and strict scrutiny and draw lessons from recent state cases that apply each standard, respectively.
A Revised Article 117a Should Trigger Intermediate Scrutiny
Under intermediate scrutiny, a law will withstand constitutional challenge if: “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”67 The requirement that incidental restrictions on speech be “no greater than essential” does not mean the regulation must use the least restrictive means available. Under intermediate scrutiny, “a regulation need not be the least speech-restrictive means of advancing the Government’s interests.”68 Courts will uphold a content-neutral regulation despite incidental restrictions on speech so long as it “promotes a substantial government interest that would be achieved less effectively absent the regulation.”69
Intermediate scrutiny applies to content-neutral restrictions on speech. A law is content neutral if it prohibits speech based on criteria other than the conceptual subject of the speech—such as a law prohibiting lawn signs greater than four square feet in size.70 By contrast, a law is content based if it prohibits speech based on the content thereof—such as a law prohibiting lawn signs publicizing religious events as opposed to secular events.71
Some commentators presume that laws criminalizing WDII are necessarily content-based restrictions on speech.72 Such a presumption is likely wrong. Not all laws related to the content of speech are content-based restrictions. The Supreme Court has explained: “‘content-neutral’ speech regulations [are] those that ‘are justified without reference to the content of the regulated speech.’”73 For example, in City of Renton v.
Playtime Theaters, a law restricting the placement of businesses specializing in pornographic entertainment was held to be content-neutral because its predominant concern was to prevent negative secondary effects of such businesses, not to prevent speech in the abstract.74
Speech involving purely private matters also enjoys lesser First Amendment protections than speech involving matters of public interest.75 In Snyder v. Phelps, the Supreme Court synthesized earlier cases to explain, “where matters of purely private significance are at issue, First Amendment protections are often less rigorous [than when dealing with public issues].”76 While Snyder did not address the standard of review explicitly, other courts have relied on the reasoning of Snyder to apply intermediate scrutiny to statutes that otherwise pose close questions.77
In People v. Austin, the Illinois Supreme Court recently followed the reasoning of Playtime Theaters, Snyder, and similar cases to hold Illinois’s WDII statute was content-neutral, and thus subject to only intermediate scrutiny.78 The Illinois court further concluded that Illinois’s WDII law—that is, in relevant part, similar to Article 117a—withstood intermediate scrutiny and was not facially unconstitutional.79
Under the reasoning of Playtime Theaters, Snyder, and Austin, properly drafted WDII statutes are more akin to laws that prohibit nonconsensual recording than laws directed at curtailing speech based on content. Courts have generally upheld statutes that prohibit the nonconsensual recording of matters in which an individual has a reasonable expectation of privacy.80 This is true even when such laws only prohibit the nonconsensual recording of intimate images.81 In such cases, it is the expectation of privacy—not the content of the recording—that separates lawful from unlawful conduct. Thus, such laws are content neutral and subject to intermediate scrutiny.82 By contrast, courts have overturned laws that prohibit the nonconsensual recording of matters with no reasonable expectation of privacy.83
Under the reasoning of Playtime Theaters, Snyder, Austin, and cases addressing nonconsensual recording offenses, Article 117a should be subject to intermediate scrutiny—not strict scrutiny. This is especially true if Congress revises Article 117a to focus explicitly on private matters of no legitimate public interest. Even without the direct-and-palpable element, courts should find Article 117a constitutional under intermediate scrutiny because it furthers a substantial government interest other than the suppression of speech,84 and the interests that Article 117a promotes would be achieved less effectively without the law.
A Revised Article 117a Should Survive Strict Scrutiny
Content-based regulation of speech is subject to constitutional challenge under the standard known as “strict scrutiny”—one of the most demanding standards of judicial review. Under strict scrutiny, courts will only uphold a law if it addresses a compelling state interest and is narrowly tailored to that interest.85 A statute impinging on free speech and subject to strict scrutiny may also be struck down as overbroad if “a ‘substantial number’ of its applications are unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep.’”86 This means that even if some applications of the law would not violate the First Amendment, a court may still strike the law down if a “substantial number”87 of applications would violate the First Amendment. Nevertheless, while it is a harsher standard of review than intermediate scrutiny, strict scrutiny is not an insurmountable hurdle.88
Contrary to the popular anecdote that strict scrutiny is “strict in theory, [but] fatal in fact,”89 courts ultimately find about 30 percent of statutes they test under strict scrutiny are constitutional.90 While strict scrutiny is a high standard, well-drafted statutes regularly survive such review.
In State v. VanBuren, the Supreme Court of Vermont recently held that the state’s WDII law survived strict scrutiny.91 The court’s analysis in VanBuren is instructive of how to draft a law that will survive the most stringent form of review without unduly hobbling prosecution. In VanBuren, the court conducted a two-part analysis: first, it found the state had a compelling interest in protecting individuals’ privacy with respect to intimate images;92 second, it concluded that Vermont’s WDII law was narrowly tailored to advance that interest.93
In both parts of its analysis, the Vermont court relied on, among other things, several carve-outs the law made for conduct that was not subject to criminal prosecution. Such carve-outs included the disclosure of images depicting individuals without a reasonable expectation of privacy.94 Other carve-outs included disclosures made in the “public interest” and disclosure of matters of “public concern.”95
Vermont’s law defines disclosures made in the “public interest” to include disclosures made to report crimes, conduct legal proceedings, and engage in medical treatment.96 The carve-out for matters of “public concern” was important to the Vermont statute surviving strict scrutiny because speech on matters of public concern enjoys heightened First Amendment protection.97 Congress should use similar carve-outs to insulate Article 117a from potential First Amendment attack while allowing military prosecutors greater latitude to act against WDII.
Specific Recommendations for a Revised Article 117a
Congress should revise Article 117a to make it a more effective tool for combatting WDII. The inability to prosecute offenses against minors or offenses without a direct and palpable military connection is a needless restriction on the prosecution of a common, non-military offense. Synthesizing the lessons of Austin, VanBuren, and the Supreme Court cases on which they rely provides insight on how Congress can revise Article 117a to allow necessary prosecutions and withstand First Amendment challenges. This article identifies five main categories for revision.
Allow the Prosecution of WDII Involving Minors
Article 117a should not be limited to images depicting adults. Congress should therefore eliminate subsection (a)(1)(A), which currently exempts images of minors from the statute. Further, Congress should eliminate any chance of curtailing the prosecution of child pornography by taking one of two steps: either add an additional subsection “(c)” to Article 117a, explicitly stating the statute does not preempt the prosecution of child pornography under Article 134; or make child pornography a statutory offense under a new Article 117b.
Strengthen the Definitions Related to a Reasonable Expectation of Privacy
Congress should ensure the law clearly articulates the meaning of a reasonable expectation of privacy, because that expectation is crucial to separating lawful from unlawful acts. Congress should reorganize the definition of “reasonable expectation of privacy” in subsection (b)(5) to read coherently when substituted for the words “reasonable expectation of privacy” found in subsection (a)(2). To ensure reasonable expectations of privacy are predictable, Congress should revise the definition of “private area” in subsection (b)(4)—due to the breadth of the terms “underwear clad” and “buttocks.” Breadth and ambiguity are weaknesses for any statute that courts might construe as regulating speech. The broad and ambiguous term “underwear clad” is therefore a point of vulnerability, which Congress should revise. Similarly, the term “buttocks” may be read to include both the lower gluteal region, which is commonly visible in swimwear, and the upper gluteal region, sometimes visible due to loose clothing and movement patterns.98 Further, the word “buttocks” is not included in the definitions of “intimate parts” or “nude” used in the statutes that passed constitutional muster in Austin and VanBuren, respectively.99 For these reasons, Congress should change the term “underwear clad” to reflect the ability to directly view the relevant area, and they should remove the term “buttocks.”
Eliminate the Direct-and-Palpable Element and Add a Public Interest Exception
Rather than limiting the statute to conduct with a direct and palpable military connection, Congress should limit the statute to conduct not in the public interest and not addressing matters of public concern. Therefore, the element currently found in subsection (a)(4)—“had a reasonably direct and palpable connection to a military mission or military environment”—should be replaced with a requirement that the conduct “was not in the public interest.” Congress should then define the term “public interest” in a new subsection—(b)(8). The definition of “public interest” should include exceptions for criminal reporting, law enforcement and judicial functions, medical diagnosis and treatment, and the exercise of parental supervision.100 Finally, the definition of “public interest” should include the report or discussion of matters of “public concern.” Such a carve-out was important to the survival of the statute at issue in VanBuren .
Use a Mens Rea of Recklessness, Not Negligence
Congress should use the mens rea of recklessness rather than negligence in those places where Article 117a currently invokes a negligence standard. Although the Supreme Court’s jurisprudence on this point is not crystal clear, historical limitations on punitive damages for speech-based torts suggest the Court may disfavor punitive—including criminal—sanctions for negligent speech.101 Therefore, Congress should change the mens rea in both subsections (a)(2) and (a)(3) from “knows or reasonably should have known” to “recklessly disregards.”
Eliminate Redundancy in Core Terms
Congress should streamline Article 117a and amend the definitions section to untangle convoluted language. Subsection (a)(1) should be simplified by leveraging the definitions in subsection (b) to reduce redundant terms. Specifically, subsection (b)(3)—defining “intimate visual image”—should be changed to define “intimate image” because the word “visual” is redundant with the word “image.” The definition of “intimate image” should then be expanded to include images of sexually explicit conduct so that the term “intimate image” can be used elsewhere in the statute, rather than the more cumbersome set-phrase “an intimate visual image of another person or a visual image of sexually explicit conduct involving a person.” This alone will substantially streamline the statute. Likewise, subsections (a)(2) and (a)(3) should both be streamlined by using the term “intimate image” throughout, as discussed above for subsection (a)(1).
Congress should change the name of the offense, found in subsection (a)(5), to be consistent with the streamlined language about “intimate images.” Subsection (a)(5) should state that in individual who commits the offense is “guilty of wrongful distribution of intimate images.” As previously discussed, this change would also help define the offense in terms consistent with the experience of victims.102
Congress created Article 117a to enable prosecution of WDII in the military. Ironically, it may limit such prosecution instead. Due to the doctrine of preemption, Article 117a probably prevents the military prosecution of any WDII involving minors, as well as any WDII without a direct and palpable military connection. Congress should revise Article 117a to enable the military to prosecute Service members who commit WDII regardless of the age of the victim or the connection to the military. While the First Amendment protects the freedom of speech, Congress can revise Article 117a without infringing on the First Amendment. State laws that criminalize WDII and state courts’ reviews of those laws can help chart a path forward to better realize the purpose of Article 117a. This article has advocated for several specific changes to Article 117a based on state and federal precedent as applied to the military. Congress should strongly consider implementing changes like those proposed in this article, and revise Article 117a to match the function of the law to its purpose.TAL
1. Preemption is the legal doctrine under which Article 134, Uniform Code of Military Justice (UCMJ), may not be used to prosecute offenses that are highly similar to offenses Congress has prohibited under other articles of the UCMJ. Prior to the enactment of Article 117a, the military could have used Article 134 to prosecute wrongful distribution of intimate images (WDII), either as service-discrediting behavior or as a violation of state law. Because Article 117a addresses a comparatively narrow range of WDII offenses, the enactment of Article 117a, combined with the preemption doctrine, has likely reduced the military’s overall ability to charge WDII offenses, as compared with the prosecutorial options under Article 134.
2. See, e.g., Niraj Chokshi, How to Fight Back Against Revenge Porn, N.Y. Times (May 18, 2017), https://www.nytimes.com/2017/05/18/us/fighting-revenge-porn.html.
3. JonasOooohyeah, Revenge Porn, urbandictionary.com (Sept. 25, 2007), https://www.urbandictionary.com/define.php?term=revenge+porn (last visited June 29, 2021). Urban Dictionary is not a scholarly source of information; but, due to its system of date-stamping user-submitted definitions, it is useful for finding when certain terms gained some form of popular recognition. Coincidentally, 2007 is also the year Apple released the iPhone. This Day in History, January 9, 2007: Steve Jobs Debuts the iPhone, History
(Aug. 29, 2012), https://www.history.com/this-day-in-history/steve-jobs-debuts-the-iphone.
4. See Alex Morris, Hunter Moore: The Most Hated Man on the Internet, Rolling Stone (Nov. 13, 2012, 9:10 PM), https://www.rollingstone.com/culture/culture-news/hunter-moore-the-most-hated-man-on-the-internet-184668.
5. For example, topless images of a female under the age of eighteen years—without more—do not qualify as “child pornography” under Article 134. See
Manual for Courts-Martial, United States pt. IV, ¶ 95c(4) (2019) [hereinafter MCM].
6. See Sophie Gallagher, “Revenge Porn” Is Not the Right Term to Describe Our Experiences, Say Victims, HuffPost, https://www.huffingtonpost.co.uk/entry/why-are-we-still-calling-it-revenge-porn-victims-explain-change-in-the-laws-needed_uk_5d3594c2e4b020cd99465a99 (Aug. 3, 2019) (describing the experience of one particular victim who discovered topless photos of herself as a fourteen-year-old on the internet).
7. See Lolita C. Baldor, Scouring for Nude Images in Photo Scandal at Marine Base, Associated Press (May 5, 2017), https://apnews.com/4e725b203f624788966ccd8717eef1db/Scouring-for-nude-images-in-photo-scandal-at-Marine-base (describing 150,000 nude or “semi-nude” images, of which approximately 20,000 had “a possible military connection”).
8. See Anne Claire Stapleton et al., Lewd Photos of Female Marines Spark Probes, Consternation, CNN, https://www.cnn.com/2017/03/06/politics/marines-united-photos-investigation/index.html (Mar. 6, 2017, 5:07 PM).
9. See Dave Philipps, Inquiry Opens into How a Network of Marines Shared Illicit Images of Female Peers, N.Y. Times (Mar. 6, 2017), https://www.nytimes.com/2017/03/06/us/inquiry-opens-into-how-30000-marines-shared-illicit-images-of-female-peers.html.
10. See, e.g., id .
11. See, e.g., id .
12. See Jeff Schogol, First Female Infantry Marines Joining Battalion on Thursday, Marine Corps Times (Jan. 3, 2017), https://www.marinecorpstimes.com/news/your-marine-corps/2017/01/03/first-female-infantry-marines-joining-battalion-on-thursday.
13. See Corey Dickstein , FBI Joins Army, Air Force and Coast Guard in Investigation into Nude-Photo Scandal, Stars & Stripes (Mar. 17, 2017), https://www.stripes.com/news/fbi-joins-army-air-force-and-coast-guard-in-investigation-into-nude-photo-scandal-1.459244.
14. See, e.g., Gayle Tzemach Lemmon, The Marines Finally Have a Female Infantry Officer, but Now Comes the Hard Part, CNN, https://www.cnn.com/2017/10/01/opinions/first-female-marine-infantry-officer-lemmon-opinion/index.html (Oct. 1, 2017, 10:18 AM).
15. See Hope Hodge Seck, 11 Troops Kicked Out After Court-Martial in Wake of Marines United Scandal, Military (Sept. 13, 2018), https://www.military.com/daily-news/2018/09/13/11-troops-kicked-out-after-court-martial-wake-marines-united-scandal.html. The title of the article appears to be inaccurate. The article states that eleven Marines were convicted at courts-martial and all received a bad-conduct discharge. The article also states that two of those Marines were convicted at summary courts-martial. A summary court-martial may not adjudge a punitive discharge. Therefore, it appears the reference to bad-conduct discharges only refers to the nine Marines convicted at general and special courts-martial. Eight other marines were administratively separated for conduct related to the scandal and forty-five more received non-judicial punishment or adverse administrative action. See id. Notably, the Marine Corps successfully prosecuted the Marines in question before the passage of Article 117a.
16. Tara Copp, In Wake of Marines United Nude-Photo Scandal, Lawmakers Question DOD Social Media Policies, Stars & Stripes (Mar. 21, 2017), https://www.stripes.com/news/us/in-wake-of-marines-united-nude-photo-scandal-lawmakers-question-dod-social-media-policies-1.459829.
17. Protecting the Rights of Individuals Against Technological Exploitation Act, H.R. 2052, 115th Cong. (2017) (also known as the PRIVATE Act).
18. See 163 Cong. Rec. H3052–58 (daily ed. May 2, 2017) (statements of Reps. Barbara Lee, Ann Kuster, Don Bacon, Lois Frankel, and Martha McSally); 163 Cong. Rec. H4477–80 (daily ed. May 23, 2017) (statement of Rep. Martha McSally).
19. See National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 533, 131 Stat. 1283, 1389–90 (2017).
20. See UCMJ art. 117a (2017).
21. Thirteen Army courts-martial have convicted a Soldier for violating Article 117a. E-mail from the Office of the Clerk of Court, Army Ct. of Crim. Appeals, to author (June 29, 2021) (on file with author). The Navy has reported four convictions under Article 117a. See Navy Results of Trial, U.S. Navy JAG Corps, https://jag.navylive.dodlive.mil/Military-Justice/ (a month-by-month search of the Navy’s court-martial results, found four convictions for broadcasting or distributing “intimate images” as of 28 June 2021). The Air Force has reported three convictions. See The Judge Advocate General’s Corps Air Force Docket, A.F. Judge
Advoc. Gen.’s Corps, https://legalassistance.law.af.mil/AMJAMS/PublicDocket/docket.html (a line-by-line review of the Air Force’s court-martial results found three convictions for Article 117a as of Jun. 28, 2021). The Marine Corps has reported three convictions. See Monthly Court Martial Reports
U.S. Marines, https://www.hqmc.marines.mil/sja/Court-Martial-Reports/ (a month-by-month search of the Marine Corps’s court-martial results found three convictions for broadcasting or distributing “intimate images” or “intimate visual images” as of 28 June 2021). By contrast, the Marine Corps alone reported fifty-six separate courts-martial resulting in a conviction for child pornography in the same timeframe. See id.
22. See UCMJ art. 117a(a)(1)(A) (2017).
23. Id. art. 117a(a)(4).
24. Id. art. 117a(a)(1)(A).
25. See 163 Cong. Rec. H4477–80 (daily ed. May 23, 2017) (statements of Reps. Jackie Speier and Susan Davis).
supra note 5, pt. IV, ¶ 95.c.(4) (defining “child pornography” to require either “an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct”). See also United States v. Blouin, 74 M.J. 247, 250 (C.A.A.F. 2015) (discussing the relatively stringent standards of child pornography definitions in a slightly different context).
27. According to one study conducted in 2012, nearly one-in-five high school students reported having sent a nude or semi-nude image of themselves to another individual. See Donald S. Strassberg et al., Sexting by High School Students: An Exploratory and Descriptive Study, 42 Archives Sexual Behav. 15, 17–22 (2013). In another study, nearly two-in-five teenagers reported being sent a nude or semi-nude photograph originally meant for someone else. See Melissa R. Lorang et al., Minors and Sexting: Legal Implications, 44 J. Am. Acad. Psychiatry & L . 73, 73–80 (2016).
28. See Lorang et al., supra note 27.
29. See United States v. Wilcox, 66 M.J. 442, 448–49 (C.A.A.F. 2008) (citing United States v. Priest, 45 C.M.R. 338, 343 (C.M.A. 1972).
30. This hypothetical largely mirrors the facts reported about Second Lieutenant (2ndLt) Vincent Provines and his wife, Cesaria Marquez, who sent intimate images of 2ndLt Provines’s former girlfriend to her parents. Provines and Marquez were convicted of cyberstalking in state court. See James Laporta, Exclusive: U.S. Marine Couple Found Guilty of Sending Revenge Porn of Young Woman to Her Parents, Newsweek (July 14, 2018, 6:10 AM), https://www.newsweek.com/marine-corps-marines-united-revenge-porn-military-1021152.
31. See 48 States + DC + One Territory Now Have Revenge Porn Laws, Cyber C.R. Initiative, https://www.cybercivilrights.org/revenge-porn-laws/ (last visited May 4, 2021).
32. UCMJ art. 117a(a)(2) (2017).
33. Id. art. 117a(b)(5).
34. Id. 117a(a)(2) (substituting the definition of “reasonable expectation of privacy” found in Article 117a(b)(5) for the words “a reasonable expectation of privacy”).
35. See generally R. Randall Kelso, The Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Review, and “Reasonableness
” Balancing, 8 Elon L. Rev . 291, 393–95 (2016).
36. MCM, supra note 5, pt. IV, ¶ 91.c.(5)(a).
37. United States v. Kick, 7 M.J. 82, 85 (1979).
38. See id.
40. For example, the Army Court of Criminal Appeals (ACCA) recently found Article 120b preempted court-martial charges that a Solider violated all three clauses of Article 134 by “wrongfully annoying and molesting a minor.” See United States v. Rodriguez, No. 20130577, 2015 CCA LEXIS 551, at *10 (A. Ct. Crim. App. Dec. 1, 2015), aff’d on reconsideration, 2016 CCA LEXIS 145 (Army Ct. Crim. App. Mar. 7, 2016). Affirming its prior decision on reconsideration, the ACCA explained that, because the government charged the accused Soldier under all three clauses of Article 134, including assimilation of state law through the Assimilative Crimes Act, 18 U.S.C. § 13 (ACA), two distinct forms of preemption were at issue: the form generally applicable to Article 134, and the form of preemption inherent to the ACA. See United States v. Rodriguez, 2016 CCA LEXIS 145, at *10 (A. Ct. Crim. App. Mar. 7, 2016). For the purposes of this article—and as the ACCA concluded in Rodriguez —the distinction between the two forms of preemption makes little, if any, difference. It is sufficient to note that the ACA is the mechanism through which military prosecutors may charge state-law offenses committed in areas of federal jurisdiction.
Kick, 7 M.J. at 85; supra text accompanying note 37.
42. Cf., e.g., United States v. Forrester, 76 M.J. 389, 391–92 (C.A.A.F. 2017) (a Marine was convicted of four specifications of possessing child pornography involving the same images on four different devices); United States v. Mobley, 77 M.J. 749, 750 (A. Ct. Crim. App. 2018) (a Soldier was initially convicted of two specifications of possessing child pornography for different images all contained on a single device).
43. See generally Blockburger v. United States, 284 U.S. 299 (1932).
44. Wrongful distribution of intimate images is sufficiently distinct from child pornography. Laws against the former probably do not preempt charging the latter under Article 134 at all, but further measures to distinguish between the two may be adopted in an abundance of caution.
Kick, 7 M.J. at 85.
46. While the UCMJ does not have such a savings clause elsewhere in the enumerated articles, the presidentially-established offenses under Article 134 found in the MCM include exactly such a clause with respect to child pornography. See MCM, supra note 5, pt. IV, ¶ 95.c.(1). Similarly, other parts of the U.S. Code include such “savings clauses” expressly disclaiming federal preemption of relevant state law. See
Jay B. Sykes & Nicole Vanatko, Cong. Rsch
. Serv., R45825, Federal Preemption: A Legal Primer 13–14 (2019).
47. Cf. United States v. Blouin, 74 M.J. 247, 248 (C.A.A.F. 2016) (discussing a charge under Article 134 incorporating the federal civilian child pornography statute).
48. See generally MCM, supra note 5, pt. IV,¶ 95.
49. See United States v. Wilcox, 66 M.J. 442, 447 (C.A.A.F. 2008).
50. See id. (citing United States v. Priest, 45 C.M.R. 338, 343 (C.M.A. 1972)).
51. See id . See also Parker v. Levy 417 U.S. 733, 759 (1974) (“Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to [military] command. If it does, it is constitutionally unprotected.”). In Levy, the Supreme Court’s recognition of the unique military interest in prohibiting certain kinds of otherwise protected speech echoed earlier decisions of military courts that allowed prosecution of otherwise protected speech based on a “direct and palpable” prejudice to good order and discipline. See generally Priest, 45 C.M.R. at 343 (citing United States v. Gray, 42 C.M.R. 255, 260 (C.M.A. 1970)). The “direct and palpable” standard later evolved to embrace both speech prejudicial to good order and discipline and speech of a nature to bring discredit on the armed forces. Punishment of speech under Article 134 therefore requires, “a direct and palpable connection between [the] speech and the military mission or military environment.” Wilcox, 66 M.J. at 448.
52. See John A. Humbach, The Constitution and Revenge Porn, 35 Pace L. Rev . 215, 216–18 (2014).
53. U.S. Const. amend. I.
54. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002).
55. See id. at 241–42, 258 (holding the First Amendment protects some sexually explicit images as speech).
56. See Schenck v. United States, 249 U.S. 47, 52 (1919).
57. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
58. See Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam).
59. See Roth v. United States, 354 U.S. 476, 483 (1957).
60. See New York v. Ferber, 458 U.S. 747, 763–64 (1982).
61. United States v. Stevens, 559 U.S. 460, 472 (2010).
63. See Kelso, supra note 35, at 293–96 (using both the terms “intermediate review” and “intermediate scrutiny”).
64. See id.
65. Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994).
66. Cf. People v. Austin, 155 N.E. 3d 439, 456 (Ill. 2019) (rejecting a government concession that strict scrutiny should apply to a statute under review).
67. United States v. O’Brien, 391 U.S. 367, 377 (1968).
68. Turner, 512 U.S. at 662.
69. United States v. Albertini, 472 U.S. 675, 689 (1985).
70. See Reed v. Town of Gilbert, 576 U.S. 155, 172 (2015).
71. See id. at 164.
72. See, e.g., Ashton Cooke, The Right to Post: How North Carolina’s Revenge Porn Statute Can Escape Running Afoul of the First Amendment Post- Bishop, 15 First Amend. L. Rev . 472, 482 (2017).
73. City of Renton v. Playtime Theatres, 475 U.S. 41, 47 (1986) (quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)).
74. Id .
75. Snyder v. Phelps, 562 U.S. 443, 452 (2011) (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985) (plurality opinion)).
76. Id. at 352 (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (quoting Dun & Bradstret, 472 U.S. at 758; Connick v. Myers, 461 U.S. 138, 145–47 (1983)).
77. See People v. Austin, 155 N.E. 3d 439, 458–59 (Ill. 2019).
78. Id. at 456.
79. Id. at 474. See also 720 Ill. Comp. Stat. Ann. 5/11–23.5 (2019).
80. See, e.g., United States v. Bessmertnyy, 2019 CCA LEXIS 255, at *64–65 (A.F. Ct. Crim. App. June 14, 2019).
81. See, e.g., id .
82. See People v. Clark, 6 N.E.3d 154, 160–61 (Ill. 2014).
83. See id . (overturning an eavesdropping law when it was revised to apply regardless of privacy expectations).
84. The substantial government interests that Article 117a furthers include the protection of individual privacy interests and prevention of the individual and societal harms that result from WDII.
85. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991).
86. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6, (2008) (quoting New York v. Ferber, 458 U.S. 747, 769–71 (1982)). See also United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange, 552 U.S. 442).
87. The criteria of a “substantial number” is vague.
88. See, e.g., State v. VanBuren, 2018 VT 95, 210 Vt. 293, 214 A.3d 791. See generally Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev . 793, 814–15 (2006).
89. See Winkler, supra note 88, at 794–95 (surveying similar statements from various sources).
90. Id. at 815 (The “survival rate” for freedom of speech cases drops to about 22 percent.).
91. See VanBuren, 214 A.3d at 813–14 (the statute is still subject to an as-applied challenge).
92. See id. at 811.
93. Id. at 812–13.
94. See id. at 813.
95. See id. at 812–13.
96. See id . at 796, 812. See also
Vt. Stat. Ann. tit. 13, § 2606 (2015).
VanBuren, 214 A.3d at 812–13. Cf. Bartnicki v. Vopper, 532 U.S. 514, 533–34 (2001) (speech on matters of public concern is a “core purpose” of the First Amendment).
98. A phenomenon sometimes colloquially referred to as “plumbers’ crack.”
99. See 720 Ill. Comp. Stat. Ann. 5/11–23.5 (2019); Vt. Stat. Ann. tit. 13, § 2606 (2015).
100. Such as taking baby pictures, or one parent notifying the other of the content of their child’s text messages.
101. In civil cases, punitive damages are only allowed upon a showing of at least recklessness. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349–50 (1974). This issue is different from the issue in Elonis v. United States, 135 S. Ct. 2001 (2015), and similar cases about the minimum mens rea applicable to laws that do not explicitly specify a mens rea. The issue in Gertz relates to whether merely negligent speech—that is not subject to a categorical exception to First Amendment protections—can trigger punitive sanction. At least in civil cases, it cannot. The same logic would disallow punitive sanctions for negligent speech in criminal cases.
102. See Gallagher, supra note 6 and accompanying text. A copy of Article 117a with the proposed changes using underlined text for additions and strikethrough text for deletions is available in the appendix.
Proposed Revisions to Article 117a
Prohibition.—Any person subject to this chapter—
who knowingly and wrongfully broadcasts or distributes an intimate
image of another person
or a visual image of sexually explicit conduct involving a person
(A) is at least 18 years of age at the time the intimate visual image or visual image of sexually explicit conduct was created;
knows or reasonably should have known
that the intimate
or visual image of sexually explicit conduct
was made under circumstances in which the person depicted in the intimate
or visual image of sexually explicit conduct
retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate
or visual image of sexually explicit conduct
knows or reasonably should have known
that the broadcast or distribution of the intimate
or visual image of sexually explicit conduct
to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate
or visual image of sexually explicit conduct
to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and
whose conduct, under the circumstances
, was not in the public interest
had a reasonably direct and palpable connection to a military mission or military environment,
is guilty of wrongful distribution of intimate
or visual images of sexually explicit conduct
and shall be punished as a court-martial may direct.
Definitions.—In this section:
Broadcast.—The term “broadcast” means to electronically transmit a visual image with the intent that it be viewed by a person or persons.
Distribute.—The term “distribute” means to deliver to the actual or constructive possession of another person, including transmission by mail or electronic means.
Intimate visual image.—The term “intimate visual image” means a visual image that depicts a private area of a person
, or sexually explicit conduct involving a person
Private area.—The term “private area” means any of the following areas when
either naked or insufficiently covered to prevent direct viewing:
naked or underwear-clad genitalia
genitals, pubic area
, anus, buttocks, or female areola or nipple.
Reasonable expectation of privacy. —The term “reasonable expectation of privacy” means
a reasonable belief that, under the circumstances,
circumstances in which a reasonable person would believe that
a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.
Sexually explicit conduct.—The term “sexually explicit conduct” means actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.
Visual image.—The term “visual image” means the following:
Any developed or undeveloped photograph, picture, film, or video.
Any digital or computer image, picture, film, or video made by any means, including those transmitted by any means, including streaming media, even if not stored in a permanent format.
Any digital or electronic data capable of conversion into a visual image.
Public Interest—The term “the public interest” means:
reporting a crime to a law enforcement agency;
the conduct of law enforcement operations;
the conduct of medical diagnosis and treatment;
the exercise of parental supervision of minor children; or
reasonably related to reporting or discussing matters of public concern.
Nothing in this Article shall be construed to preempt the prosecution of child pornography under Article 134, Uniform Code of Military Justice
or 18 U.S.C. § 13.