## Facts

- The complainant took nude photographs of herself and sent them via Facebook Messenger to Anthony Coon, intending the images to remain private.
- Rebekah S. VanBuren, Coon’s girlfriend, accessed Coon’s Facebook account, saw the images, and posted them on Coon’s public Facebook page, tagging the complainant; multiple people viewed them.
- After the complainant asked that the photos be removed, VanBuren called back using Coon’s phone and threatened to “ruin” the complainant and contact her employer.
- VanBuren admitted to police that she posted the images from Coon’s account.
- The State charged VanBuren under 13 V.S.A. § 2606, which criminalizes knowing disclosure of nude/sexual images of an identifiable person without consent, with intent to harm/harass/intimidate/threaten/coerce, where disclosure would cause a reasonable person harm, subject to an exception where the depicted conduct occurred where there is no reasonable expectation of privacy.

## Issues

1. Whether 13 V.S.A. § 2606 is facially unconstitutional under the First Amendment as a content-based restriction on speech.
2. Whether, on the established record, the complainant retained a reasonable expectation of privacy in images she voluntarily sent to Coon, such that the statutory exception did not bar prosecution.

## Decision

- The Vermont Supreme Court held that § 2606 is constitutional on its face and survives heightened scrutiny.
- The Court reversed the trial court’s ruling that the statute was facially unconstitutional.
- The Court nonetheless affirmed dismissal of the charge against VanBuren because the State did not show the complainant’s images fell outside the statute’s “no reasonable expectation of privacy” exception.
- The Court granted the State’s petition for extraordinary relief in part (facial ruling) and denied it in part (case-specific dismissal).

## Legal Principles

- A statute targeting disclosure of particular content may be treated as content-based yet still survive strict or heightened scrutiny when narrowly tailored to a compelling state interest.
- Protecting sexual privacy and preventing severe harms from nonconsensual disclosure of nude or sexual images can qualify as a compelling governmental interest.
- Narrow tailoring may be supported by limiting elements such as: nonconsensual disclosure, identifiable subject, intent to harm/harass/intimidate/threaten/coerce, and an objective harm requirement.
- A court need not create a new categorical class of unprotected speech to uphold a carefully limited restriction addressing extreme invasions of privacy.
- Under § 2606’s exception for voluntary nudity or sexual conduct in a context lacking a reasonable expectation of privacy, the existence of a reasonable expectation may depend on objective context, including the nature of the relationship between sender and recipient.
- When the record does not establish an intimate or confidential relationship supporting an expectation the recipient would not share self-sent images, prosecution may fail under the statute’s own privacy-expectation limitation.

## Conclusion

The Vermont Supreme Court upheld Vermont’s nonconsensual-pornography statute as a constitutionally permissible, narrowly limited restriction serving compelling privacy interests, but affirmed dismissal in this prosecution because the State did not establish that the complainant retained a reasonable expectation of privacy in images she voluntarily sent to the recipient.


State v. VanBuren, 210 Vt. 293, 214 A.3d 791 (Vt. 2019)