Katie Hill, the media, and the limits of revenge-porn laws

Former US Rep. Katie Hill speaking with attendees at the California Democratic Party State Convention in June. Hill resigned earlier this month. Photo via Gage Skidmore/Flickr

On November 3, Katie Hill, a Democratic congressional representative from California, resigned after her intimate photos were published by RedState, a conservative political site, and the Daily Mail, a British tabloid. The two media outlets had recently published articles about a polyamorous relationship between Hill, her now estranged husband, and a female staffer on Hill’s 2016 campaign. The articles included photos that showed the two women kissing and some that depicted Hill nude, with blurring or black bars obscuring her breasts and genitals. Both outlets posted the photos without Hill’s consent.

California and Washington, DC, have criminal laws addressing nonconsensual distribution of pornographic images. If Katie Hill were an accountant or a waitress or a nonprofit executive, those laws would probably punish anyone who published her nude photos without her consent. However, both jurisdictions include exemptions for images released in the “public interest” and require some demonstration of intent to cause harm—something that would be difficult to prove in the case of a media outlet. As a member of Congress, Hill was a public figure, and RedState and the Daily Mail can argue that they ran the photos as part of a story about a matter of legitimate public concern. Civil suits that Hill might bring against the media outlets for defamation or invasion of privacy would face similar hurdles.

“Any case that Representative Hill tried to bring against the media organizations for publishing these photos would be an uphill battle,” says Jennifer Urban, a law professor at the University of California, Berkeley. “A case she chose to pursue against those who leaked the photos may well have more success.”

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In a statement to the New York Times made before she resigned, Hill said RedState and the Daily Mail published the photos as part of a “smear campaign” by right-wing operatives and her estranged husband, Kenny Heslep. Hill told the Times she’d reported the matter to the US Capitol Police; she’s since hired Carrie Goldberg, an attorney specializing in revenge-porn cases. (Hill did not respond to an interview request, and Goldberg’s office declined to comment. Heslep told his parents he was hacked shortly before the photos were published, BuzzFeed reported.) Mary Anne Franks, a professor at the University of Miami School of Law, says she thinks the publication of Hill’s photos “was not only unethical, but also possibly unlawful.” Franks is president of the Cyber Civil Rights Initiative, a group that helps victims of online abuse and advocates for laws against nonconsensual pornography.

“The publication of these photographs by these outlets was a vile, politically motivated, misogynist act of voyeurism dressed up as journalism,” Franks writes in an email interview with CJR. “Allowing such conduct to go unpunished would set a dangerous precedent.”

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Forty-six states criminalize revenge porn. However, such laws are fairly new—California’s revenge-porn law, which passed in 2013, was among the first—and remain untested in the case of public figures. (The hacker who stole nude photos of celebrities and other women in 2014 and was sentenced to prison was prosecuted under federal computer crime laws for the theft.)

The story that led to Hill’s resignation started to percolate in early October, when RedState reported Heslep’s accusation that Hill had left him for a male staffer in her congressional office. Jennifer Van Laar, RedState’s managing editor, followed up a week later with the “throuple” story about Hill and her campaign staffer. Van Laar shared a byline on the Daily Mail’s story the following week, which included more photos, and more explicit ones, than what RedState had published. (Neither publication responded to requests for comment.)

According to the Los Angeles Times, Van Laar is a political consultant who worked on campaigns for Steve Knight, the Republican congressman Hill defeated in 2016. That connection was not disclosed by either RedState or the Daily Mail. (Van Laar did not respond to multiple requests for comment.) Joe Cunningham, a RedState senior editor, defended Van Laar’s reporting in an October 24 post. The story, he wrote, “is not about anything other than Hill’s behavior as a candidate and congresswoman, and her use of power for sexual satisfaction.” Cunningham also praised RedState’s “editorial restraint” in using only some images of Hill, “while holding back on more scandalous ones.”

The fact that RedState and the Daily Mail censored the images may or may not clear them of liability, Franks says. California and DC revenge-porn laws both refer to images of sexual conduct and of unclothed genitals or female breasts. Blurring those areas might take the images “out of the laws’ purview,” Franks writes to CJR. “But then again, the courts might find the publication of these images to be the kind of conduct the statute was meant to prohibit, and so interpret the statute broadly enough to apply to these images.”  

Van Laar’s stories alleged two affairs: one involving Hill, her husband, and her campaign staffer, which Hill has acknowledged; and one between Hill and her congressional staffer, which Hill has denied. The latter was a more serious accusation, because House rules prohibit sexual relationships between representatives and their congressional staffers. (There is no rule against relationships with campaign staffers.) The House Ethics Committee opened an investigation into Hill after the RedState story ran. 

Whether the two stories are seen as essentially one and the same could be important to the question of whether the photos are a matter of public concern. “If the photos are directly tied to the newsworthy issue, then there’s a strong First Amendment defense for publishing them,” Urban says.

Of course, the sex lives of politicians are often grist for the news mill, and any sexual relationship between a powerful person and a subordinate is bound to draw scrutiny, even if there isn’t a congressional rule against it. Whether a politician makes a habit of dating subordinates seems a matter that voters might want to consider. They can do so without photographic evidence—but while offering that evidence may be unethical, it’s not clearly illegal.

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.