Punishing Revenge Porn as (Federal) Criminal Libel
From U.S. v. Uhlenbrock, decided yesterday by Fifth Circuit Judge Jerry Smith, joined by Judges Carl Stewart and Kyle Duncan:
A jury convicted Mark Uhlenbrock of violating 18 U.S.C. § 2261A-(2)(B) for publishing [on Reddit] his ex-girlfriend’s nude images and videos and exhibitionist and masturbatory stories that he wrote in her name…. Some of [the] images she had voluntarily sent to him during their romantic relationship, but some he surreptitiously recorded. She never allowed him to share any of the media or to post it online.
Accompanying those pictures and videos, Uhlenbrock shared stories that he drafted in the first-person using YT’s maiden name. They further identified her by occupation, employer, and state of residence. Writing as YT, he claimed to be an “addicted” “exhibitionist.” For example, he stated, “I am a real US Airline flight attendant…. Here, I share clothed to naked pics, ‘G’ and ‘R’ rated home videos and erotic stories that you can read about my exhibitionist fantasies.” Another post read, “I enjoy stripping nude and masturbating for men I meet on my layovers. It’s my favorite way of sexually expressing and satisfying myself.” He invited men to look for YT on their flights and sexually to proposition her….
A grand jury indicted Uhlenbrock on one count of cyberstalking under 18 U.S.C. § 2261A(2)(B), which states, in relevant part,
Whoever … with the intent to … harass[ ] [or] intimidate … engage[s] in a course of conduct that … causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress to a person … shall be punished as provided ….
A jury convicted Uhlenbrock, and the district court sentenced him to 60 months’ imprisonment, three years’ supervised release, and restitution….
The court concluded that Uhlenbrock could be punished under the cyberstalking statute because his speech fit within a First Amendment exception—in this case, defamation:
Uhlenbrock’s speech was [knowingly] false. He claimed that YT had authored his internet posts, though she had not. He wrote, for example, “I am a real US Airline flight attendant…. Here, I share clothed to naked pics, ‘G’ and ‘R’ rated home videos and erotic stories that you can read about my exhibitionist fantasies.”
He also falsely called her an “addicted” “exhibitionist.” YT testified that, upon discovering her naked photos and videos online in 2007, she was “humiliated and embarrassed by this and fearful that [she] would be discovered.” She said that, after court proceedings following his 2016 conviction for the same conduct, she “wanted to kill [her]self to make this go away.” And after she discovered his 2020 posts, she felt “instant fear and disgust that opened that wound again.” She became “reclusive and paranoid” and “hid[ ] out under a baseball hat
Article from Reason.com
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