Understanding the shock Katie Hill ruling: She must pay outlets that published nude photos

Former congresswoman's case could set a dangerous precedent that turns revenge porn into "protected speech"

Published June 4, 2021 5:50AM (EDT)

Katie Hill (Caroline Brehman/CQ Roll Call)
Katie Hill (Caroline Brehman/CQ Roll Call)

Nearly two months after a judge dismissed former Rep. Katie Hill's lawsuit charging the Daily Mail, Red State and Red State editor Jennifer Van Laar with distributing non-consensual porn and violating California's "revenge porn" laws, the court is now ordering Hill to pay more than $200,000 in legal fees, including more than $100,000 to the Daily Mail, specifically. The Los Angeles County judge is also ordering Hill to pay $84,000 to Van Laar's attorneys, among other fees.

It seems objectively shocking to many or most observers that Hill would be charged hundreds of thousands of dollars for the privilege of being victimized and publicly violated. But the judge's ruling reflects an enormous loophole in the California "revenge porn" law that could set a dangerous precedent for many other cases and render questions of consent irrelevant if the victim is famous or a public official.

As the Los Angeles Times reports, the 2013 California law on nonconsensual porn "makes it a crime to distribute private images without the person's permission but has exceptions, notably if such sharing is in the 'public interest.'" That "public interest" exception was key to the ruling on Hill's case. Exceptions like this have previously been applied to reporting on disgraced former Democratic congressman Anthony Weiner, whose illegal and disturbing sexting with minors may have played an uncomfortable role in the outcome of the 2016 election. Exposing Weiner's unsavory private communications was legal, because it was notably relevant to his status and decision-making abilities as an elected official.

In Hill's case, the nude photos of her published by the Daily Mail were supposedly a matter of "public interest," the Mail argued, because they spoke to her character and qualifications as a member of Congress. As a refresher, Hill had been accused of having improper relations with a member of her congressional staff, which she denied, and also with a young female campaign staffer prior to taking office, to which Hill has admitted. 

The nude photos allegedly depict Hill being intimate with her staffer, using a then-illegal drug, and "displaying a tattoo that was controversial because it resembled a white supremacy symbol," according to the Orange County Register. As a result, the judge ruled that the photos reflected on Hill's "character, judgment and qualifications for her Congressional position."

Just as driving Hill from Congress in 2019 arguably sent a dangerous message to young women who have ever taken or sent nude photos to consider that a disqualification from holding public office, this ruling on her case could set a dangerous precedent for all victims of nonconsensual pornography. As Hill's attorney, victims' rights lawyer Carrie Goldberg, has pointed out, "Anybody who dares enter the public eye should now have legitimate concern that old nude and sexual images can be shared widely and published by any person or media purporting to have journalistic intentions."

Business Insider reports that Goldberg accused conservative news outlets of "trying to create case law that publishing revenge porn is protected speech," which would be a disturbing legal precedent with potentially far-reaching consequences. It's especially troubling that one specific passage in a California law that was clearly intended to help victims of revenge porn is now being reverse-engineered to harm them, or at least to discourage them from ever entering the public eye.

The outcome of Hill's case is chilling because it appears to create an exception to the rule that no one should share another person's private photos without consent, a principle that likely should not be conditional upon anything. A 2016 study published by the Data & Society Research Institute that found 10 million Americans — or one in 25 — have been victims of "revenge porn," and that people of color, women under 30 and LGBTQ folks are all at greater risk. A 2018 study conducted in the U.K. found more than half of teenagers have friends who have shared intimate images of someone they know.

Currently, 46 states — including California, which Hill briefly represented in Congress — and Washington, D.C., have laws that explicitly prohibit revenge porn. But it's unclear after the Hill case whether the "public interest" exceptions built into many of these statutes could render them meaningless, or easily weaponized by bad-faith abusers.

In 2019, Hill alleged that  her ex-husband had shared the photos to punish her for leaving him, and that he had been abusive for years. This points toward the obvious conclusion that the blame, shame or moral deficit when it comes to sexual cyber-crimes and exploitation, in nearly all cases, does not lie with the victim for taking or sharing photos, but with the perpetrator. Hill's ex is hardly the only partner or former partner to use nude photos to punish, blackmail or try to coerce a victim to remain in a damaging relationship.

While what was done to Hill — and far too many other women — is often called "revenge porn," many advocates have criticized the label as reductive, and even containing an element of blame or shame. The word "revenge" may offer implicit justification for such a violation — supposedly in retaliation for some previous wrongdoing — while "porn" implies the pictures in question are just casual, sexual content rather than a deeply traumatic violation. Hill's case signals a need for policy changes that protect consent as unconditional, as well as new language and discourse on the issue.

Hill has since spoken out against the Los Angeles County judge's ruling, calling it a reflection of the "broken" justice system, and stating that her fight continues, in a Wednesday tweet.

By Kylie Cheung

Kylie Cheung is a staff writer at Salon covering culture. She is also the author of "A Woman's Place," a collection of feminist essays. You can follow her work on Twitter @kylietcheung.

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Commentary Katie Hill Politics Revenge Porn