Elected Officials Are Subject to “Matter of Public Concern” Exception Under California’s New Revenge Porn Statute

Colloquially referred to as the “revenge porn” statute, California Civil Code Section 1708.85 wasenacted in 2018 to create a private right of action in connection with the unauthorized distribution of sexually explicit materials. The statute includes an exception to liability where thedistributed material “constitutes a matter of public concern.

In 2020, former congresswoman Katie Hill filed a lawsuit against her ex-husband, individual journalists, and media publications, alleging that they conspired to publish nude photographs of her, and that this forced her to resign from Congress. Among the photographs published, one depicted a nude Hill appearing to smoke marijuana, and another depicted her nude with a female staffer. Hill sued the defendants for allegedly violating the revenge porn statute and allegedly conspiring with one another to violate the statute.

The journalist defendants filed anti-SLAPP motions pursuant to C.C.P. §425.16, a California statute that allows a Court to strike a lawsuit that is frivolous and seeks to punish someone who exercises their right of free speech or petition. The journalists argued that they had reported newsof an elected officials’ apparent illegal drug use and sexual relationship with a paid staffer, whichare “matters of public concern,” and therefore that they were exempt from liability under the revenge porn statute. The journalists further argued that this exception mirrors the long-standing “public concern” exemption that is deeply rooted in First Amendment jurisprudence, and that under decades of free speech law, “[a]lmost any truthful commentary on public officials or public affairs, no matter how serious the invasion of privacy, will be privileged” (Alim v. Superior Court,185 Cal. App. 3d 144 (1986)), because “[p]ublic discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for application of the safeguards afforded by the First Amendment.” Aisenson v. ABC, 220 Cal. App. 3d 146, 154 (1990).

Los Angeles Superior Court Judge Yolanda Orozco agreed, tossing Hill’s claims. Judge Orozco held that the journalists’ actions were “purely journalistic endeavors,” and that the conduct of a public official, like Hill, are a matter of public concern.

The Court’s ruling was consistent with both the clear wording of the revenge porn statute, and with the First Amendment underpinnings of its “matter of public concern” exception. This case was one of the first to substantively address the revenge porn statute, and clarified the parametersof the statute for future matters, particularly those involving public officials.

Krista L. Baughman is a partner of Dhillon Law Group, Inc., whose practice focuses on First Amendment and anti-SLAPP law and litigation. Ms. Baughman represented the individual journalist defendants in Hill v. Heslep, et al., Los Angeles Superior Court, Case No. 20STCV48797 (2021).