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.” That is not the reaction of an addicted exhibitionist.

Uhlenbrock’s speech was also “defamatory.” He “impute[d] … unchastity” to YT by conveying that she freely shared her naked pictures and videos with the internet, inviting men to look for her when they flew, and suggesting that she would strip and masturbate for them….

The court rejected Uhlenbrock’s vagueness challenge to § 2261A(2)(B):

“[S]ubstantial emotional distress” is an “easily understood term[ ].” A familiar term from tort law, “[e]motional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and nausea.”

So is the term “reasonably expected.” Indeed, we have explained that potential vagueness is not created but, instead, “constitutionally remedied” “by the inclusion of [a] reasonable person standard.”

Under those definitions, § 2261A(2)(B) “clearly proscribed” Uhlenbrock’s conduct. He posted YT’s nude photographs and videos, after she had gone to great lengths to stop him from posting. Those photos and videos—some of which he captured without her permission—exposed her breasts, vagina, and buttocks in sexually charged poses. Some showed her masturbating. Her face was visible in most. Alongside those pictures and videos, he appended stories that invited men to look for her when they flew, suggesting that she would strip and masturbate for them if they winked at her.

That conduct alone would be “reasonably expected” to cause YT to experience “substantial emotional distress.” But he also identified her to the world by signing the posts with her real maiden name, real occupation, real employer, and real state of residence. It beggars belief that, by using YT’s maiden name, he “effectively eliminat[ed] the possibility” that she would discover his posts and, thus, experience any distress. Again, as Uhlenbrock acknowledges, YT’s family friend found his posts, identified YT in them, and alerted her to them.

Because § 2261A(2)(B) “clearly proscribed” Uhlenbrock’s conduct, he “cannot complain of the vagueness of the law as applied to the conduct of others.”

The court also concluded the jury had sufficient evidence to find that Uhlenbrock
“intended to harass or intimidate YT”:

The jury had sufficient evidence to conclude that Uhlenbrock intended to harass or intimidate YT. Each time he had posted her nude media in prior years, she discovered it. A rational jury could conclude that he expected that she would also learn about his 2020 Reddit posts. Likewise, because he knew the “humiliation” and “fear” that she had suffered in past years, a rational jury could conclude that he expected to cause the same result this time, too. The jury could thus conclude that he intended “to disturb [YT] persistently; torment, as with troubles or cares; bother continually; pester; persecute” her or “to make timid” or “fill [her] with fear.”

A rational jury could also conclude that he intended to harass her by sending strange men to find her. He invited readers to “keep an eye out for [YT] when” flying on her airline. “Who knows where a suggestive wink will lead. You could get a sexy strip tease from a pretty Latina flight attendant who, after an erotic nude dance, will lie back, spread her legs ….”

Resisting that conclusion, Uhlenbrock says that his posts “were not directed to YT; they were posted in a [forum] that the alleged victim only found out about when a close family friend provided a link.” But the question is “whether any rational trier of fact could have found” the requisite intent “beyond a reasonable doubt.” The answer is yes….

And the court concluded the jury had sufficient evidence to find that Uhlenbrock’s “conduct was ‘reasonably expected’ to cause substantial emotional distress” or did cause such distress:

[A] rational jury could conclude that Uhlenbrock’s conduct was “reasonably expected to cause” such distress to YT. As we have recounted several times already, Uhlenbrock published her nude photographs, masturbation videos, and exhibitionist fantasies to internet forums. He signed them with her maiden name and told readers her occupation and employer. He invited men to look for her when they flew. People could link the posts to YT; she found out about them from a family friend.

Regardless, a rational jury had enough evidence also to conclude that Uhlenbrock’s conduct “cause[d] … substantial emotional distress.” When YT saw the 2020 posts, she “immediately started searching” for them and “spent eight, nine hours a day scouring the internet to find these images to see how bad this was going to be again.” Seeing the pictures brought her “instant fear and disgust.” She “feared for [her] safety” because her “private and personal information was in these pornographic stories and [she] feared that anyone who could see these could find [her] at home or at [work].” She “became very reclusive and paranoid,” covering her face “under a baseball hat” and “not wearing any make-up.” “Overprotect[ing] her grandchildren,” she controlled what they could wear and who could photograph them. The posts disturbed her so much that she contacted the FBI.

Note that this particular theory worked only because the posts suggested that YT had posted the items herself. If Uhlenbrock had made clear that he was posting the items, without YT’s approval, there wouldn’t be any false statement; perhaps the material might be punishable on some other theory, but not a defamation theory.

Note also how the federal cyberstalking statute—which, to oversimplify slightly, essentially criminalizes communications (at least those that fall within a First Amendment exception) that fit within the intentional infliction of emotional distress tort—is being used as a form of federal criminal libel statute. Some state harassment statutes are likewise being used to revive criminal libel law, even in states that have generally repealed criminal libel (see the closing paragraph of this post).

This yields what strikes me as a good result in this revenge porn case. But keep in mind that § 2261A is by no means limited to revenge porn, and can be used for other repeated libels that are seen as “inten[ded] to … harass” and that “cause[], attempts to cause[], or would be reasonably expected to cause substantial emotional distress” (as libels often would); see, e.g., U.S. v. Morris (E.D.N.C. 2023); U.S. v. Sergentakis (3d Cir. 2019); U.S. v. Gonzalez (8th Cir. 2018); U.S. v. Sayer (D. Me. 2012). That might be good or bad, depending on what you think about criminal punishments for libel; but I think it hasn’t drawn as much attention as it should.

Elizabeth Berenguer and Joseph H. Gay, Jr. represent the government.

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