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Susanna Gibson is Back and Still Trying to Shred the First Amendment (a Deep Dive)

Meme: Old man with his coffee

You remember Susanna Gibson, right? She was the candidate for the Virginia House of Delegates who turned out to be have done live sex shows on the Internet with her husband. (And we still can’t get over the fact that her husband is also a lawyer and he participated in all of this.)

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Previously, we did a piece on her discussing the Virginia (State) legal issues surrounding her conduct, and concluded that there was strong evidence that she and her husband violated Virginia prostitution laws and also violated laws concerning live sex shows. But she had already begun to play the victim in all of this, so she was also claiming that exposing her conduct amounted to revenge porn, so we also examined that issue. If you are a VIP member, you might go back and re-read that piece, but for the non-VIP types, we will be making similar points about their revenge porn law in a moment. In other words, you don’t have to have read that prior piece to understand this one—but it helps.

In any case, Gibson is back and she is after the First Amendment, and she is getting help in the Virginia House of Delegates in her quest to undermine freedom of expression:

From the article:

RICHMOND, Va. — A bill that cleared an early hurdle Wednesday in the Virginia House of Delegates would broaden the state’s revenge porn law by adding a new category of ‘sexual’ images that would be unlawful to disseminate.

Democratic Del. Irene Shin, the bill’s sponsor, said the measure would build on the General Assembly’s previous work to protect victims from intimate images being shared without their consent.

The issue of so-called revenge porn took center stage in state politics last year when the news media was alerted to sex videos livestreamed by Democratic House candidate Susanna Gibson and her husband.

Gibson argues that the dissemination of her videos violated the state’s existing revenge porn law. She said Wednesday’s 8-0 subcommittee vote advancing the latest legislation to a full committee showed the General Assembly understands the ‘severity and the extent of the damage that is done to victims.’

The state’s current statute pertains to images of a person that depict them totally nude or in a state of undress with their genitals, pubic area, buttocks or breasts exposed. Shin’s bill would expand the law to cover images ‘sexual in nature’ in which those body parts are not exposed. It does not define what constitutes ‘sexual in nature.’

The measure would also extend the statute of limitations for prosecution to 10 years from the date the victim discovers the offense. It currently stands at five years from the date the offense was committed.

Now, first off, the extension of the statute of limitations makes some sense if you extend it by ten years or to five years after it is discovered. The problem is that doing both seems excessive. The ugly truth is that the older a claim is, the harder it is to achieve justice—and we mean exactly that: perfect justice is when the innocent are freed and the guilty are punished, and time is often the enemy of such justice. Evidence degrades. Witnesses die, lose their memory or otherwise become unable to help.

To give a practical example, in 2006, a stripper named Crystal Magnum accused several members of the Duke Lacrosse team of raping her at a party. The vast majority of people didn’t have enough information to draw any conclusions but in what can only be described as unadulterated prejudice born out of racial politics (and perhaps the rivalry between Carolina and Duke), a weirdly large swath of people were ready to declare them guilty. But Magnum was completely discredited when one of the accused was shown to be on camera using an ATM at the time he was allegedly attacking her. Once it was proven for a fact that she was lying about one of them, her entire story fell apart.

Now imagine a scenario where the accusation didn’t come immediately, but instead came 20 years later? As a rule, ATM footage is not likely to be kept that long so there goes the airtight alibi, and thus there was a real chance that the players would have been tried for rape, and maybe even convicted. That is perfect example of how time can often be the enemy of justice.

This kind of thing is why it is important to keep the statute of limitations relatively short in most cases. Justice is often harder to obtain the more time has lapsed and if there is going to be an error, it should be to the detriment of the state. So, this author doesn’t like the idea of extending the statute of limitations as strongly as this bill does.

But the more heinous element of this bill is the alteration of the substantive language in this one of Virginia's statutes. However, in order to understand that, you have to actually look at the bill itself—because the description in the article is pretty good, but incomplete. We found the language by following a link in this piece over at a website called Liberty Unyeilding:

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Mr. Bader is the author and he points readers toward (Virginia) House Bill NO. 926.

And before we get into it, let us give you a language warning. We are going to be quoting the law (and a bill) on topics related to sexuality, and that law gets a little graphic. We wouldn’t read the text of the relevant laws and bills out loud in an elementary school classroom, for instance. So, a bit of parental and reader discretion is advised.

Further, before we get into what this bill is doing, we have to talk about what the law currently says. Currently, there are actually two laws that deal with so called revenge porn—although the law goes a little further than just porn created for a reason we might call revenge. The first is Virginia Code § 18.2-386.1 which says:

It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if 

(i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or 

(ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person’s legs for the purpose of capturing an image of the person’s intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; 

and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.

We added line spaces to make it more readable. Still, there are two key elements here that we want to focus on. First, it punishes the creation of all such images if the person doesn’t consent, regardless of motive—so some kind of revenge motivation is not necessary. Second, the statute can only be triggered if the person has a reasonable expectation of privacy.

That is a very important limitation and, in our previous piece, we said that we believed that this made it impossible for this statute to apply to the Gibson situation. You see, Gibson was going on a public forum to basically have sex with her husband while strangers watched via the Internet. And we define the term ‘sex’ broadly (frankly more broadly than Bill Clinton tried to do during the Lewinsky scandal). She complained that while she consented for people to watch, she didn’t consent to anyone recording her behavior. But we pointed out that she really had no reasonable expectation of privacy on a webcam show broadcast to anyone who happened to tune in. Seriously, give us all a break, Susanna.

But that isn’t the law and her Delegate bestie wants to alter. We discussed it because you need a whole picture of what the law in this area is before we talk about altering it. Still, the specific statute they wish to alter is other revenge porn statute, Virginia Code § 18.2-386.2 (emphasis added). That statute reads, in relevant part:

Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor. 

For purposes of this subsection, ‘another person’ includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic.

Once again, we added a line space to make the law a little more readable. Here we are not talking about just the consent of the people in the video but in general the distribution has to be licensed or authorized. But crucially the statue also requires the intent to coerce, harass, or intimidate and that it be done ‘maliciously.’ That is not strictly limited to motivations of revenge, but it is much closer to it. Previously, we discussed whether this statute applied to a political operative gathering information and giving it to the press in order to harm her political career. We argued that these intent requirements would be read by the courts as excluding such activity. In other words, our hypothetical political operative would not be seen as acting with the necessary intent and journalistic activity (broadly defined) would not be seen as having that intent.

Mind you, we were not saying that the statutory language clearly protected such conduct. However, we believed the law would be interpreted that way for two reasons. First, there is a doctrine of lenity in Virginia that says that all criminal statutes are interpreted narrowly in favor of the defendants’ freedom. Second, the courts also interpret statutes to avoid serious constitutional concerns and frankly, if it purported to stop Gibson’s political opposition from bringing her conduct to light or to stop reporters from reporting about it, it would be unconstitutional under the First Amendment. Therefore, that language is crucial to making sure that the law doesn’t infringe on protected expression.

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And the new bill cuts that language out.

Here’s the relevant language from that bill:

Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is (i) totally nude, or; (ii) in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast,; or (iii) in a state of undress so as not to expose the genitals, pubic area, buttocks, or female breast but such videographic or still image is sexual or sensual in nature where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor 4 felony. 

For purposes of this subsection, ‘another person’ includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic.

To translate what you are seeing a little bit, what most legislatures do is mark up the bills almost as if you left on the ‘Track Changes’ feature in Microsoft Word. So, language that is struck through is language they are proposing to delete from the present law. And language in boldface and underline is language they are proposing to insert (on the Virginia Assembly website, the new language is in italics but for stylistic purposes, we changed it to boldface and underline).

Thus, first, they took out the only language we thought would prevent people from being prosecuted for expression protected under the First Amendment. 

By the way, this has a pretty funny unintended effect. We haven’t discussed this before because we didn’t think it was relevant, but § 18.2-386.1 has a special subsection that makes an exception for law enforcement activity (broadly defined). But there is no such exception in the language of Virginia Code § 18.2-386.2. Still, under the current version, a genuine police investigation would not be seen by any court as acting maliciously, or acting with the intent to coerce, harass, or intimidate. But if you cut that language out of the statute, suddenly ordinary police work would become a crime, including work to enforce this law!

Whoopsie!

But we wouldn’t worry overly much about that, because we doubt any prosecutor would go after the police unless they did something truly outrageous like using the evidence from these kinds of cases to create their own pornographic website. It might not protect the police explicitly, but they would be protected by prosecutorial discretion. The real horror of it is that it basically would have criminalized bringing Gibson’s conduct to light and a great deal of reporting on it—especially the initial reports that broke the story. And we suspect that is the whole point.

But a reasonable person might say that it is good to a have general rule against pornography created without the subjects’ consent. We would respond that there is already such a rule, in § 18.2-386.1, with the important limitation that the person has to have had a reasonable expectation of privacy. We are of the opinion that if someone installed a secret camera in the Gibsons’ bedroom, that can be a crime under the First Amendment even if the person doing so was trying to gather information as a reporter. We even think the law could rightfully criminalize the same persons' publication of such surreptitiously recorded images or video, since it compounds the invasion of privacy that the law can rightfully protect. But once we are not talking about invasion of privacy, once we are talking about something that effectively happened where the public could see, then the First Amendment has to take priority. And the horror of this bill is that its authors (and the people who voted to advance it) don’t seem to understand that, or they don't care.

The other horror introduced into this bill is that it now also covers essentially images that don’t show the person’s … um … naughty bits, if (1) the person is still in a ‘state of undress’ and (2) that image is also sexual or sensual. And the problem is that this language is more than a little vague.

And, as a point of order, sometimes underwear can be a little sheer and you can still see the various parts of the body that the statute mentioned—what we are calling in our tongue-in-cheek way the ‘naughty bits.’ That would still fall under (i) or (ii). Part (iii) concerns itself wholly with a situation where a person is in a ‘state of undress’ but you can’t see those naked naughty bits.

But to get back to vagueness, in ordinary parlance, we suppose that if a man or woman were photographed in their underwear (if it isn’t too sheer), that would be an image of them in a state of undress that is not exposing the naughty bits necessary for (iii). But what about a woman in a string bikini, like this?

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And to apply Robert McCain’s Rule 5 on an equal opportunity basis, men can wear pretty skimpy bathing suits, too:

Most people would say wearing such swimsuits aren’t being in a state of undress but … what is the logical difference between underwear that doesn’t actually expose the naughty bits and skimpy swimsuits?

Furthermore, what counts as sexual or sensual? We can definitely point at situations that are definitely those things, but when can you say a person is safely not distributing a sexual or merely sensual image? When can a person feel safe that their expression can't be prosecuted? People can find almost anything sensual depending of their disposition. This proposed language appears to be hopelessly vague.

And that is a huge problem, constitutionally. As a general proposition, if a law is too vague it creates a problem under the Due Process Clause of the Fourteenth Amendment (as well as the Fifth Amendment, which is not relevant here). Put simply, a person has a right to have a reasonably clear idea what is and is not criminal under the law. Complete precision in language is often impossible, but reasonable clarity has to be there. This is true in general, but doubly so when the thing that is being prohibited is expression because the courts are afraid of what is called the ‘chilling effect.’ In this context, the idea behind the chilling effect is that when there is uncertainty in the law, many people will be avoid activities that might arguably violate the law because, bluntly, being charged with a crime can be an inconvenient and expensive process and many reasonable people want to avoid the whole thing. That might not be so bad when it comes to many actions one might take such as trespassing on another person’s property, but when it comes to one’s expression, that would cause the suppression of protected expression. Therefore, in order to avoid such a chilling effect, courts demand language that is reasonably clear.

For instance, with all those concerns in mind, consider the image attached to this post on Twitter/X:

That's a very common and popularly used image of Ms. Gibson to accompany stories about her scandal. Is that an image of her in a state of undress as required by the bill? Arguably so; you can see she is naked from mid-chest on up and it is actually taken from a moment in one of the videos where she is fully naked. Is it sexual or sensual? We tend to say it is—and we suspect the image is used for exactly that reason, to convey that this women was displaying herself in an intimate fashion. Most women would not appear in this state except in privacy, and in the presence of a spouse or significant other. So, if this bill is passed, posting that image on Twitter/X after the law goes into effect might become a crime in Virginia.

Except it can’t be a crime under the First Amendment. Neither could it be a crime to distribute images or video of the Gibsons fully nude and even having sex with each other on video, at least in the context of political discussions or in other public controversies. We can’t imagine any circumstances where we would show you those videos, because of the preferences of the site owners and this author. But the law can’t stop us from doing so or punish us for having done so—not under the First Amendment.

To make our point more concretely, that prior VIP piece discussed why we thought the Gibsons might have committed prostitution. To explain why, we included a somewhat vague description of what the Gibsons were doing in one video (according to people who had seen it):

Specifically, she was on a site called Chaturbate which facilitates webcam ‘shows.’ In one session, she was asked to do a specific sex act with her husband. … Then she said she wouldn’t do that act unless she was paid a certain amount. Chaturbate apparently allows people to tip users using ‘tokens’ that they buy with real money. Then she said they got that much and said they would do that act. The Washington Post doesn’t say if they actually went through with it. I suspect The Post doesn’t actually know.

We think we were specific enough at the time for you to get the idea across even if you don’t know exactly what she agreed to do. Then we went on to explain how what she did is probably an agreement to engage in classic prostitution: Literally agreeing to having sex for money. It doesn’t quite meet all the elements of the statute because we are missing a few facts, but if she actually did the sex act, it would be prostitution. And because of the particular way Virginia’s prostitution statute is written, if she merely agreed to do the act and took a substantial step in furtherance of the sex act, that would also be criminal prostitution. The only question is whether she met those elements.

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But you know what might have made that discussion simpler? If we actually showed you the video where she offered to do the act for money and agreed to do it, when she was offered enough money. We chose as part of our freedom of expression not to show the video and to be vague in how we described it, but the law can’t require us to take that approach. We had a legal right to very graphicly show you exactly what she did in the video because her conduct and her political aspirations made it a valid topic of discussion. Indeed, our arguments might have been stronger if we showed you what they did. If a picture is worth a thousand words, how many words is a video worth?

Indeed, this bill would make it very difficult if not impossible for reporters to lawfully learn what Gibson had done. To their credit, the Washington Post broke the Gibson story despite the fact it harmed a Democrat. But how did the Post reporters get to see the video? Well, according to their reporting, an operative showed them how to find the video. But the proposed language would punish any person who merely ‘disseminates’ the video. Would showing a person how to find the video on a website count as dissemination? Even if it didn’t, the website in question was definitely disseminating it.

And suppose that the Post reporter then made a copy of the video on his or her local computer, in case the video suddenly disappeared. Then, before the story went to print, they went through the fact-checking process that most large news organizations have. This very often involves a lawyer (or someone else) going over the story and asking for evidence to back up every allegation in the story. So to allow the fact checker to verify the story, the reporter creates a copy of the video on a thumb drive and hands it off the lawyer and bam that is dissemination—which would be a crime in Virginia if this bill becomes law. Under the current statute, it would clearly lack malice, but the bill would eliminate that limitation. In short, the bill would make even pretty restrained reporting on the controversy a criminal act because it would criminalize necessary steps in learning about the story in the first place and writing about it in a manner that protects the paper from liability.

Finally, here’s the big irony of it all. If Susanna Gibson and her bestie get their way, they will probably do more harm than good for real victims of revenge porn. Why? Because we believe that if this bill becomes law in exactly this form, the statute will be struck down and then there will be no statute protecting Virginians from this kind of revenge porn at all—at least until the Virginia General Assembly can pass a new one. We suspect they would probably pass a new law pretty quickly, but even a week is like a million years in online distribution. Of course, § 18.2-386.1 would still be there, but that contains the significant limitation that the person has to be filmed when they have a reasonable expectation of privacy. So if this bill is passed as is, it would probably leave Virginians even less protected than they were before Gibson got involved.

We also asked ourselves if we could picture a way to amend this bill in order to make it constitutional because we like to be constructive in our criticisms of bills. However, we don’t think it is possible. Of course, the extension to the statute of limitations isn’t unconstitutional, just unwise in our opinion. And you might have noticed that they upped the crime to a felony, which increases the punishment for it and we have no problem with upping the punishment on the current version of the law. But the substantive changes to the law proposed in this bill appear to be unsalvageable.

Still, while they are looking at the statute, can we suggest a different kind of amendment to the current statute? Of course, they should throw out all proposals to change the substance of the law as it reads right now. They shouldn’t reduce the intent requirements or add this non-nude sexuality/sensuality crime, but how about we also amend the law to more clearly protect the First Amendment? Additional clarity is generally a good thing, right? Just to spitball some language—and maybe someone will have a critique, why not add a subsection that says something to the effect that

This law shall not apply to any journalistic efforts, nor to any efforts to inform persons on any subject that is a matter of public concern, nor to any other fair use of such images. This exception is not an affirmative defense, but rather its absence is an element of the offence. Further, this exception should not be read to justify an expansive reading of subsection (A).

That’s just a first stab, and we are open to edits and suggestions. Still, while we feel pretty confident that the current law will not be interpreted to apply to First Amendment protected activity, it would be better for this law to be explicit on this point and we think that is a pretty good stab at such language.

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Of course, all of this seems to be part of a new push to make Susanna Gibson a crusader advocating for similar speech suppression:

That bit about ‘intimate privacy violations’ seems to be a direct reference to her efforts to suppress speech like that which derailed her campaign.

Is … she … saying … so-called ‘diverse’ people are more likely to do sex shows on the Internet? Because she is a pretty, blue-eyed, blond girl. She is about as un-diverse as one can be (in the way she is using that term) and yet that is exactly what she did. We honestly think that this statement is pretty bigoted against such ‘diverse’ persons.

And if you weren’t sure where all this is coming from, we looked over this PAC's website. We found the press release for the start of her PAC, and it is all about her:

Susanna started this PAC to support candidates dedicated to legislative reform pertaining to gender-based and sexual violence, especially Nonconsensual Pornography (NCP), Nonconsensual Distribution of Intimate Images (NDII), Synthetic NDII (‘deepfakes’), Intimate Privacy violations, and Image-Based Sexual Abuse (IBSA).

So, she mentioned violence, but she is ‘especially’ concerned about various types of pornography abuses and there are two things wrong with that passage. First, she inappropriately labels these forms of expression as violence as is pretty typical for the left, reflecting how they often label speech they don’t like or agree with as violence. Even if she was laser focused on unprotected expression (and she isn't), that expression isn’t violence.

Second, the more basic problem is that she puts those concerns above actual violence. She is more concerned with stopping people from distributing revenge porn than helping a woman who has been brutally raped. That is some seriously screwed up priorities.

And lest you have any confusion as to why she is establishing this PAC, she’s ready to explain to us later in the press release:

Susanna is establishing ‘MyOwn’ as a direct response to her experience during her recent political campaign, when she discovered she had been the target of NCP in tandem with being subjected to large-scale NDII and severe Image-Based Sexual Abuse both online and in person. These crimes, perpetrated by members of the opposing political party, not only targeted Susanna personally but also undermined the integrity of the democratic process.

You got that? The integrity of the democratic process apparently demands that we never learned about credible evidence that she might have been committing prostitution with her husband or that they were definitely creating obscene performances with her husband. Democracy dies in sunlight or something.

Seriously, don’t voters deserve to know whether the woman who wanted to write the state’s laws might have also violated them? We suspect she would say that her sex shows don’t make her less qualified to hold office and she would be entitled to that opinion. We suspect there are more than a few people that feel that way. But it isn’t up to her or the Commonwealth of Virignia to decide whether or not We the People are allowed to consider her conduct when deciding if she should hold office.

Naturally, there were reactions:

We read ‘you guys’ as a reference to anyone who is actually buying into Gibson’s victimhood routine.

That movie, The Princess Bride, is the gift that keeps giving. We hope no one is foolish enough to ever try to remake it.

Well, from what we hear, slightly more expensive than that.

That’s just crazy talk.

That would be taking self-hatred to another level.

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Of course not. She is hoping to prosecute everyone else. She is just a poor innocent who wanted to have sex with her husband on camera in front of who knows how many people. This was supposed to be between her, her husband, and perhaps enough people to fill a sports stadium—a truly private matter.

Since it removes any requirement of malice from the statute, it's hard to argue that this is a ‘revenge porn’ law at all, if the bill is passed.

To be fair, her husband has the same morals.

(Please note: When we say ‘to be fair’ we are often being more sarcastic than normal.)

We see what you did there.

That is how she is essentially trying to treat it, like someone didn't respect her IP rights and therefore she is a victim.

Finally:

No lies told.

***

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