Burwell v. Hobby Lobby: The Dangers of Protecting First Amendment Rights of Corporations & The Rapid Expansion of “Corporate Personhood”

Written by Katharine Suominen

Imagine Occupy Wall Street protests break out again, but this time, the mayor directs the NYPD to let the protesters stay in various private public spaces, like the lobby of a corporate office building. Barclays decides that it does not want to risk bloody confrontations between its own security guards and the occupiers. Instead, it releases a specially programmed fleet of drones to direct air or sound at the occupiers until they leave the premises. New York’s city council then proposes legislation to ban the corporate use of drones. Barclays decides to challenge the ordinance as an unconstitutional restriction on its corporate right of self-defense. The Supreme Court agrees with the corporation and extends Second Amendment rights to all corporations.

This hypothetical may seem dramatic and highly unlikely, but it is actually not that farfetched. In recent years, the Supreme Court has vastly expanded the constitutional rights of corporations. Traditionally, constitutional rights were reserved for individuals; however, over time courts began to consider corporations “persons,” a sort of legal fiction, and extend constitutional rights to them. This was the beginning of the legal concept known as “corporate personhood.”

The Expansion of Corporate Personhood

Corporate personhood began with the extension of contract rights to corporations, but corporate personhood slowly expanded as corporations received additional protections under the Fourteenth Amendment, the Fourth Amendment, and the Fifth Amendment’s double jeopardy protection, to name only a few. However, in a mere four years (2010-2014), the Supreme Court has given corporations unrestricted political speech rights and then, in Burwell v. Hobby Lobby, First Amendment religious freedom rights.  And there is no indication that the Court intends to stop, or even slow, the expansion of corporate personhood.

The American legal concept of “corporate personhood” has its supporters and critics alike.  On the one hand, supporters of corporate personhood embrace the aggregate theory of corporate personhood, which argues that the corporation is more than just a creature of law. Instead the corporation is representative of the people who make up the corporation because corporations themselves cannot literally “act” or “decide” or “intend” apart from their human members.

On the other hand, critics of expansive corporate personhood follow the artificial entity theory, which argues that the corporation is merely a legal construct, a fictional entity, or an artificial creation of the natural persons who form the corporation for their own purposes. The corporation is simply a creature of statute and is dependent on the law to give it form and function.

Neither the supporters nor the critics of corporate personhood suggest that the concept is problematic in itself. They merely differ from a normative standpoint as to the breadth the concept should have. It is the recent expansion of the breadth of this concept that raises many red flags.

Hobby Lobby: One Step Closer to the “Super Corp.”

In Hobby Lobby, a 5-member family, deeply wedded to their Christian beliefs and values, owned and operated an arts and crafts chain throughout the United States. Hobby Lobby argued that President Obama’s Affordable Care Act contraceptive mandate violated its Free Exercise rights under the First Amendment and sought protection under the Religious Freedom Restoration Act (RFRA), which prevents the passage of laws that substantially burden a person’s right to free exercise of religion. The Supreme Court concluded that “person” under the RFRA included corporations. The United States Department of Health and Human Services conceded that “person” includes non-profit corporations, so the Court reasoned that there was no “conceivable definition of ‘person’ that includes natural persons and nonprofit companies, but not for profit corporations, [like Hobby Lobby].” Thus, Hobby Lobby and other “closely-held corporations” were permitted to seek the protections of the RFRA. In other words, “closely-held corporations,” a vaguely defined term, have free exercise rights under the First Amendment.

Since the majority opinion did not distinguish corporations from other business forms, such as sole proprietorships, the decision will inevitably extend to corporations of any size, public or private. Thus, the Court’s extension of the RFRA to for profit corporations is bound to have, as Justice Ginsburg argued, “untoward effects.”

The Unintended Consequences: From Veil Piercing to Armed Corporations

In issuing its decision, the Court in Hobby Lobby clearly missed a few key unintended consequences for corporate law. The first unintended consequence is that this expansion of corporate personhood enhances the ability for creditors to pierce the corporate veil. The second unintended consequence is that the Court’s reasoning could be extended to grant corporations other constitutional rights, thereby allowing corporations to morph into “super corporations.”

Everyone remembers the Enron crisis. The Enron shareholders had no obligation to repay any of the company’s creditors because of the limited liability protection granted to corporations. However, if the shareholders and employees were held personally liable for the debts and actions of the corporate entity people would be less likely to invest in corporations. As the line between the corporation and its shareholders becomes more blurred, federal district courts and state courts are more likely to pierce the corporate veil and hold the shareholders liable for those debts and actions.

“Veil piercing” is a legal decision in which the court treats the rights and duties of a corporation as the rights and duties of the shareholders or owners. This usually happens when the court determines that the corporation is no longer separate and distinct from its owners and forfeits the limited liability protection. If a corporation goes bankrupt, the last thing the shareholders want is to have to pay back their corporate debts from their personal assets. When the veil is pierced, creditors can go after the homes, bank accounts, investments, and other personal assets of the corporation’s owners, shareholders, or members of the corporation in order to satisfy the corporate debt. Thus, there is, arguably, no other business tool more powerful than incorporation because it protects shareholders from personal financial ruin.

Hobby Lobby has potentially devalued this once essential and powerful business tool. These closely held corporations, which seek to invoke the RFRA protections, might be opening themselves up to veil piercing as they are extending their own personal beliefs to the corporate entity. While the Supreme Court may not pierce the corporate veil under these circumstances, lower courts might use the Hobby Lobby decision as precedent to do so.

As for the second unintended consequence, religious rights and the free exercise thereof were once considered “purely personal,” meaning the Free Exercise clause was reserved for individuals and could not be extended to corporations.  The “purely personal” limitation on the extension of constitutional rights to corporations is a long-standing legal doctrine. However, in Hobby Lobby the Supreme Court did not address this distinction between “purely personal” constitutional rights and rights which may be granted to corporations. This departure sets the stage for future courts to disregard this distinction and continue the expansion of corporate personhood.

Prior to Hobby Lobby, most people would have scoffed, if not laughed, at the thought of corporations having religious rights; and yet, now they do. Thus, it may not be as improbable as people may think for corporations to have Second Amendment rights. Following Hobby Lobby, the extension of Second Amendment rights seems quite likely. The Court ascribes similar purposes to both the First and Second Amendments—self-actualization and government deterrence. Therefore, the logic used to extend First Amendment rights to corporations could be used to extend Second Amendment rights to corporations as well.

With both First and Second Amendment rights, corporations become “super corporations” with all the essential constitutional rights of the natural person, but with even greater protections than natural persons. Under this hypothetical the U.S. would shift from “We the People” to “We the Corporations.” It is therefore essential for the Court to return to the artificial entity theory of corporate personhood and limit its expansion of this legal concept. Unfortunately, given Hobby Lobby it seems unlikely that this is the path the Supreme Court is on.

American Society and Gun Control

Written by Thomas C. Giordano

In recent years, Americans have been murdered in mass shootings at an alarming and increasing rate. While mass shootings are always devastating, regrettably, they are nothing new to Americans. Gun violence actually seems to be an accepted part of American culture.

In the wake of a mass shooting, there is sadness. Following this sadness is outrage and almost always a call for reform. Unfortunately, nothing ever actually happens. The horrific event is over, and the news picks up the next compelling story that grips the nation. People move on. That is, everybody except the victims’ loved ones.

There has been some federal legislation over the last century aimed at restricting access to guns, but not much. One reason for this is that gun legislation is often passed in response to shooting tragedies, which occur sporadically and do not affect entire groups of people on a daily basis. Therefore, it is difficult to apply sustained political pressure for change. Another challenge is the Supreme Court’s Second Amendment jurisprudence. The Supreme Court’s broad interpretation of the Second Amendment has made it almost impossible to tighten gun laws.

However, as illustrated by the Civil Rights movement, the American people possess great power in influencing the law. Supreme Court decisions and jurisprudence can change when society demands that change. The legal system will rarely act without the support of the people. Thus, persistence in a grassroots gun control movement will eventually provide enough support to effectuate legal change.

Recent History of Gun Violence in America

Since 2000, mass shootings have increasingly occurred with more frequency. This is illustrated by the FBI Active Shooter List—an FBI investigation authorized by President Obama in 2012 and completed by 2013 that studied violent acts and mass shootings in public places in America.

The List shows that from 2000-2013, the number of mass shootings per year nearly tripled. In the fourteen years studied, there were 160 active shooter incidents, resulting in the deaths of 486 people and the wounding of another 557. These types of shootings are actually on the rise. In the first seven years studied, there was an average of 6.4 incidents per year. However, in the last seven years, this annual average nearly tripled to 16.4 incidents per year.

Although there are many law-abiding citizens who use guns responsibly, there are plenty who use this freedom against us. American citizens are usually the perpetrators of these shooting rampages, often times using legally obtained firearms. And it is inaccurate to suggest that armed citizens make us safer. Of the 160 incidents studied in the FBI Active Shooter List, only five (3.1%) ended when an armed individual outside of law enforcement intervened. Furthermore, all five of these armed citizens were actually some sort of security personnel at the location where the shooting occurred. These heroes should be celebrated for their bravery, but these instances of heroism should not be mischaracterized to advance an argument they clearly do not support.

Federal Legislation

Since the 1930’s there have been only two significant federal laws restricting access to guns: The National Firearms Act of 1934 and the Gun Control Act of 1968. They were both in response to events. The National Firearms Act was passed in response to the rise in crime during prohibition. Then, the Gun Control Act of 1968 was enacted after the assassinations of John F. Kennedy, Robert F. Kennedy, and Dr. Martin Luther King, Jr.

And even recently, legislation has been proposed in response to shootings. After the massacre at Sandy Hook Elementary School in Newtown, Connecticut, President Obama created a task force on gun violence that resulted in a plan to protect children by reducing gun violence. The plan included eighteen legislative proposals and twenty-three executive actions, most notably, the call for universal background checks. None of the laws proposed were enacted.

Supreme Court Jurisprudence  

Other obstacles to gun control legislation have come from the judicial branch. In 2008, the Supreme Court issued a landmark Second Amendment decision, District of Columbia v. Heller. In Heller, the court considered a law that banned the possession of handguns and restricted the accessibility of firearms in one’s home by requiring such firearms to be disassembled or locked.

The Supreme Court held that this law was unconstitutional because it violated the Second Amendment right to keep and bear arms. Specifically, the Court decided that the Second Amendment protects an individual right to possess a firearm, unconnected with service in the militia, and to use that firearm for traditionally lawful purposes. This meant that the right to keep a functioning firearm in the home was protected by the Constitution. The holding was reached through a broad individual right interpretation of the Amendment. Under Heller, an individual can possess a gun for the sole purpose of self-defense.

How Supreme Court Jurisprudence Has Changed Before

The Supreme Court’s interpretation of the Second Amendment can change. But for that to happen, society needs to advocate for a change in the law. The greatest example of this is the Civil Rights movement. It was not until this movement began gaining traction that the Supreme Court finally changed its jurisprudence about laws with racially discriminatory impact. This change came in the overruling of the infamous “separate-but-equal” case, Plessy v. Ferguson.

In Plessy, the Supreme Court endorsed segregation when it determined that a Louisiana law providing for separate railway carriages for whites and blacks was constitutional. The Court stated that a law that merely distinguishes between whites and blacks based on color has no tendency to destroy the equality of the two races. It also stated that laws requiring separation based on race do not necessarily imply that one race is inferior.

Conversely, nearly sixty years later in Brown v. Board of Education, the Supreme Court determined that segregation in public schools violated the equal protection clause of the Fourteenth Amendment. In almost complete contrast to its decision in Plessy, the Court stated that, “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.”

How could the Court come to such contradictory conclusions? The Court overturned Plessy because in the time period between Plessy and Brown, a major movement for equality had begun. In 1909, the National Association for the Advancement of Colored People (NAACP) was formed. The NAACP began lobbying for equal public education and then eventually moved its focus to the courts and pushed for changes in the law. With strong participation in the movement, black voices were finally heard. Once enough members of society supported the change, the Supreme Court finally decided the time had come for the law to reflect the change in the social landscape. The Court could no longer hide behind policy and precedent.

The Power of the American People

The gun control story can be similar to that of the Civil Rights movement and other grassroots movements. The gun control movement should follow the same model of persistence. Fortunately, the first steps have already been taken. In April 2013, following the Sandy Hook shooting, Michael Bloomberg started a grassroots interest group called Everytown for Gun Safety. The organization promotes a common sense approach to gun control that focuses on background checks, keeping guns out of the hands of domestic abusers, education about preventable deaths by gunfire, and gun trafficking. The primary focus of the group is safety, but at the same time it raises awareness. The organization seeks to stop preventable deaths, but to do so, it needs to educate Americans on how to stop them. Through this education, Americans learn just how often preventable deaths occur and why stopping them is such a necessary objective.  The goal is for Everytown to rival the National Rifle Association.

This is just a start though. We cannot stand behind the money of a Michael Bloomberg and hope that his movement pays off. We need to make this movement our own. By making it our own, it becomes something more than just a political campaign. It becomes powerful and sustainable. We need to educate ourselves on why this is an important issue and why this is a good idea. Restricting, as opposed to expanding, a right can be worrisome, but this is not a call for the prohibition of guns. We are just striving to make America safer based on a common sense approach to an obvious problem.

Moving the Chains: Why Employee Status for College Athletes is Necessary to Ensure Their Protection

Written by Patrick Prager

As a group whose efforts generate large amounts of revenue, the “student-athlete” is surprisingly uncompensated and unprotected.  In 2013, because of the efforts of student-athletes, the National Collegiate Athletic Association (the NCAA), the body governing college athletics, generated revenues nearing  $900 million dollars. Although the student-athlete’s on-field work leads to these revenues, student-athletes are not considered university employees and, as such, are not afforded the protections that come with that designation under the National Labor Relations Act (“the NLRA”). Rather, in exchange for a scholarship (plus room and board), athletes dedicate large amounts of time to their sport and coaching staffs control their social and academic lives. Student-athletes work more than forty hours a week, limiting their ability to truly realize the university experience or fully dedicate themselves to their academic work. But because they are students and not employees, they have not been allowed to collectively bargain, stripping them of the ability to fight for fewer work hours, compensation for the use of their own images, or even worker’s compensation.

Schools are exploiting student-athletes. High-level athletes are always in danger of injury, but are never eligible for workman’s compensation to protect them if they become disabled by their on-field efforts. Additionally, athletes’ scholarships may not be guaranteed, aid packages may not be properly constructed, and they may not receive adequate academic support. These athletes fill stadiums, and bring in millions in TV revenue, jersey sales, and alumni donations. They should be entitled to the fruits of their labor, or at least be protected from the dangers of it. Some students at Northwestern University felt similarly and, through an organization called the College Athletes Players Association (CAPA), sued Northwestern for employee status. The regional National Labor Relations Board (NLRB) granted them employee status, and Northwestern appealed it to the National NLRB headquarters.photo6

In the wake of the Regional Board’s decision, the NCAA’s Board of Directors adopted a new Division 1 structure. It reorganized itself and provided autonomy to its five largest conferences, commonly known as the Power 5. The Power 5 conferences met in January 2015 at the NCAA Convention and revolutionized the lives of college athletes. The Power 5 convention committee met athlete demands in some areas: guaranteeing four-year scholarships; increasing cost-of-attendance formulas to give athletes what amounts to a $5,000 stipend; raising requirements to return to play after concussion like symptoms; and allowing star athletes to take out insurance against their future earnings, so that star athletes could receive large payouts in the event that injuries prevented a fruitful NFL career. These advancements help athletes live above the poverty line, allows them to focus more on academics (without fear of losing their one year scholarship because of poor on-field performance), and protects them against a growing concussion problem associated with football.

With these changes, the NCAA attempted to persuade athletes and the nation that unionization is not necessary to protect athletes. By allowing these changes the NCAA has tried to prove to athletes that they do not need a union to better their situation. The NCAA attempted to show progress and, through that progress, hoped to make the athletes’ case weaker. But it was the intimidation of impending player unionization that caused the NCAA to make seismic shifts in its organization and provide better conditions for athletes at major schools. These changes came in response to fear that athletes would be given employee status and therefore prove just how necessary unionization for athletes truly is. Athletes will finally receive all the protections they need, both medical and financial, if they are allowed to unionize and collectively bargain. Without unionization, progress can be made, but a solution cannot be realized. Athletes may get some concessions from the NCAA, but not enough.

The NCAA Convention did not eliminate the difficulties facing student-athletes. First, the Convention decision only applies to Power 5 players, and still leaves thousands of athletes in the same situation they were in prior to the conference. Second, the Committee did not fully develop solutions to health issues that athletes face. All athletes are still exposed to the threat of injury and lack financial and medical protection if they are affected long-term. Third, the athletes lack any representation when they have a conflict with their universities. Only through a national labor organization, under the protection of the NLRA, will the athletes get all of the protections they deserve.

First, the NCAA has ignored athletes at smaller schools. Because the Power 5 schools now dictate their own policies, the issues addressed at the NCAA Convention do not apply to schools with less financial clout. But in many ways, the concessions given to Power 5 athletes are required even more by athletes of the other conferences, as they are less likely to “go pro”. Educations are much more valuable when there is little hope of the huge economic windfall that a professional sports career provides. When a high school athlete chooses to go to a Power 5 school, they often do so with an eye toward professional sports. Athletes at lower schools, however, are less highly recruited, and as such, have lower professional aspirations.

The reason smaller conferences were not included in the Convention was because the NCAA feared increasing the financial responsibilities for those schools. The convention Committee increased the cost of attendance formula that schools use for deciding scholarship amounts, to provide athletes with more money and thereby decrease the chances they would live below the national poverty line.  Because of concerns that the small schools would not be able to afford to provide athletes with the adjusted scholarship amounts, small schools were shielded from the obligation. But by leaving out smaller schools, the NCAA also deprived those schools’ athletes of the other benefits awarded, such as guaranteed scholarship, regulation of time demands, and player safety improvements, which cost schools nothing. Progress made toward bettering player safety and security does not apply to schools outside of the Power 5.

Second, what player safety issues were addressed, were not addressed properly. For example, questions have been raised regarding the effectiveness of the Committee’s approved concussion safety protocol. The approved protocol instructs schools on how to better recognize concussion-like symptoms, but allows coaches, not doctors, to make the final call on returning athletes to games. Representatives of the Big 12, one of the Power 5 conferences, specifically criticized the protocol. The Big 12 suggested that physicians should have “unchallenged authority” to hold a player off the field after the player experiences concussion-like symptoms and protested the influence coaches have on determining the health of a player under the passed model.  Dr. Michele Kirk, a team physician at Texas Christian University, said the passed concussion policy was a PR stunt, lacking “teeth.” The Committee should have taken the most cautious approach possible, but instead showed the reflex to prioritize winning over player safety.

Another player safety concern not addressed, was worker’s compensation. In today’s athletic environment, athletes are bigger, faster, and stronger than in the past. As a result, the Internet is inundated with videos of gruesome player injuries.  But because student-athletes are not employees, if they are permanently injured, they are unable to receive worker’s compensation, essentially putting the cost of an on-field injury on the athletes rather than the schools. The NCAA has even avoided worker’s compensation for a player that died on the field. Without the protection of worker’s compensation, the worst occurrences of athlete mistreatment may be repeated.

Third, when athletes have issues with player safety, scholarships, or any other topic, they have no redress. The new rules and policies were passed to benefit athletes, but without a player’s union, the athletes have no way to enforce them, nor do they have anyway to air grievances with their schools or the NCAA. This is specifically true in a system where disciplinary proceedings are not entirely transparent. Without a labor agreement, requiring oversight to enforce new player benefits and observe player terminations for rule violations, athletes face uneasiness regardless of what they are publically given. Athletes are inundated by rules and regulations, and schools and the NCAA should not be able to punish them without some oversight. Athletes need employee status and representation by a union to make sure progress and protections are truly recognized and not just show for those outside the NCAA.

Athletes will not see change in all these areas without unionization. Without the enforcement power of the NLRB, players will remain exposed to mistreatment or the financial devastation of a life-altering injury. And not every player will see the progress being made. The NLRB must affirm the employee status of college athletes to ensure that all are fully protected. Schools should recognize the debt they owe to their athletes. Instead, to be a truly successful organization in the business of college athletics, the NCAA must make sure that it provides its athletes the best opportunities not just athletically, but also academically, financially, and physically.

A Picture is Worth a Thousand Words: The Anti-Revenge Porn Act

Written by Taryn Pahigian

Imagine one morning, after you grab your usual iced latte and are waiting for the 7 train to head to work on Madison Avenue, you check your Twitter and decide to peak at your ex-boyfriend’s Twitter account.  You unexpectedly find a naked photo of yourself on his page. Although it may be shocking, this scenario is not far-fetched in today’s digital world. In fact, this happened to Adriana Batch. Adriana’s ex-boyfriend posted nude photos of her on Twitter. To make matters worse, he also sent the photos directly to her sister and employer.  Adriana’s boyfriend engaged in what is known as revenge porn, and New York’s first revenge porn case ended with no punishment to the perpetrator.

Revenge porn is non-consensual pornography.  In other words, it is the distribution of sexually graphic images of individuals without their consent, and it includes images obtained both with and with

out consent.  Revenge porn encompasses three typical situations.  First, the nonconsensual distribution could be of a photo taken or created by the victim.  This is known as a “selfie.”  Second, the perpetrator could distribute a photo without the consent of the person depicted, but that he initially created with that person’s consent.  Third, the photo distributed could be one stolen from the victim as a result of hacking. Regardless of the manner with which the image is created, the result remains the same.

A person’s intimate image, created, and sometimes shared, with the reasonable expectation of privacy, is exploited through nonconsensual distribution.

Revenge porn is harmful to the victims.  According to a study called, Love, Relationships, and Technology, one in ten ex-partners threatened to expose risqué photos of their ex-partners online, and 60% of those who threatened to expose intimate photos followed through with their threats.  Victims of revenge porn have reportedly lost jobs, been forced to change schools, changed their names, and have been subjected to real-life stalking and harassment. Some victims have even committed suicide.

To illustrate the harms victims suffer, consider the story of Amanda Todd, a victim of revenge porn.  Amanda committed suicide at age 15, after years of cyber bullying that all started after a photo of her naked breasts was distributed over the Internet.  After electronically communicating with a man on Facebook, he flattered the vulnerable young girl enough to persuade her to flash her naked breasts on her web camera.  Not realizing the man on the other end of the computer was recording the intimate exchange, she was surprised and terrified to hear from an anonymous person one year later threatening to distribute the photo online.  Amanda changed schools multiple times and was teased, bullied, and beaten by classmates. After she could not take the torture any more, she took her own life.

In response to revenge porn, especially as social media has skyrocketed, many states have enacted legislation to criminalize revenge porn.  New Jersey and California were the leading states in developing laws that accurately target and prevent revenge porn.  New York, lagging behind the other states, does not have any criminal law with the objective of preventing revenge porn and punishing the perpetrators.

Although states have enacted criminal laws punishing revenge porn, many critics argue that criminalizing revenge porn is too extreme and that victims can use tort laws to remedy their situations through monetary recovery.  On the contrary, existing tort laws such as defamation, intentional infliction of emotional distress, and public disclosure of private information, do not apply to the majority of revenge porn cases because victims are unable to satisfy required elements of the claims.  In addition, bringing civil lawsuits is expensive and victims often do not have the financial means to afford a lawsuit. Another issue is that because much of revenge porn occurs online, often the victim cannot identify the person who posted the material in the first place.  Lastly, even if the victim can afford to bring the lawsuit and has identified the perpetrator, the perpetrators may be judgment proof.

Other critics argue that copyright laws are the best course of legal redress, but copyright laws are inadequate.  Often the victim is not the person who created the media being distributed. Instead, the perpetrator is likely to have been the creator.  Thus, the victim cannot sue for copyright infringement because the perpetrator is in fact the copyright holder.

In Adriana Batch’s case, People v. Barber, the State sought legal redress by charging the defendant with Aggravated Harassment in the Second Degree, Dissemination of an Unlawful Surveillance Image in the Second Degree, and Public Display of Offensive Sexual Material.  Although the defendant clearly sent the image of Adriana to her employer and sister and posted it on Twitter, the judge dismissed all three counts because all of the requisite elements of the crimes could not be satisfied. Thus, New York’s existing criminal laws fail to provide legal redress in revenge porn cases because the facts often fall outside the scope of the existing laws, which is logical considering most of the laws were enacted before revenge porn became such a prevalent issue.

Therefore, to solve the issue, New York should amend its Penal Law to adopt the Anti-Revenge Porn Act.  Under the Act, a person will be guilty of revenge porn when he or she knowingly disseminates, without the consent of the person depicted, media of an identifiable person whose sexual parts are exposed or that depicts actions of a sexually explicit nature.  The crime will be a class A misdemeanor, meaning the crime is punishable up to one year in prison.

§ 250.80 Revenge porn in the second degree A person is guilty of revenge porn in the second degree when:

1. He or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy.

The Act will also punish perpetrators who commit the crime with intent to cause distress or to obtain a profit, and these added elements will elevate the crime to a class E felony.  This structure of elevation is similar to other New York crimes, such as Dissemination of an Unlawful Surveillance Image, which elevates the crime to the first degree when the dissemination 1) is for the purpose of making a profit, 2) is with intent, or 3) occurs after the defendant has been convicted of Dissemination of an Unlawful Surveillance Image in the first or second degree within the past ten years.

§ 250.85 Revenge porn in the first degree A person is guilty of revenge porn in the first degree when:

1. He or she commits the crime of revenge porn in the second degree in violation of section 250.80 of this article, and has previously been convicted of that crime; or

2. With intent to cause serious emotional distress or humiliation, he or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy; or

3. To obtain a profit, he or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy.

Many argue that criminalizing revenge porn violates the First Amendment, but this is not the case.  Although the First Amendment protects freedom of speech, it is not without limits and exceptions. For example, the First Amendment does not protect defamation.  Defamation occurs when one damages the reputation of another through false writings or words.  Similarly, revenge porn damages the reputation of another.

In fact, the harm caused by revenge porn can often be more permanent and damaging than the harm caused by defamation.  Defamation is typically a statement or writing, whereas revenge porn is usually in the form of a photo or video, which exposes more than a mere writing.  The result of revenge porn is worse because even if the victim is remedied through a civil lawsuit, or the perpetrator is punished with a criminal conviction, those who saw the media will always remember it.  At least if the victim wins a civil lawsuit in a defamation action, everyone who witnessed the writing or statement will then realize that it was actually false. Because the harm caused by revenge porn is more permanent and damaging, it should be a crime.

In addition, revenge porn is somewhat similar to New York’s criminal law, Dissemination of an Unlawful Surveillance Image.  This crime punishes people who capture videos or images without consent. The Anti-Revenge Porn Act will take that law a step further by punishing people who distribute media without consent that was initially created with consent.  This is also the reason that the law will be included in the Penal Law directly following the section, Dissemination of an Unlawful Surveillance Image.

Revenge porn is a growing issue and can cause serious harm.  It should not be offered First Amendment protection; it should fall into one of the categories of exceptions.  The Anti-Revenge Porn Act directly addresses the issue and adequately applies to the unique facts in revenge porn cases.

As a community, we New Yorkers must come together and continue to speak up, advocating for this criminal law.