In 2019, former Rep. Katie Hill resigned from Congress after the disclosure of sexual relations with a staff member. Ordinarily, the media and various public interest groups would have been outraged and unrelenting in their “MeToo” coverage, particularly with a young staffer recently out of college. In the case of Hill, however ,media outlets like MSNBC picked up on Hill’s claim that she was subjected to   a “double standard” and a “misogynistic culture.” It was the ultimate form of ironic hypocrisy where a politician claimed a double standard in being forced to resign — seeking an accommodation that was wisely denied to male colleagues in past scandals. Various male politicians from Sen. Bob Packwood to Rep. Trent Franks have resigned under such scandals. Sen. Al Franken resigned for acts that did not involve an actual sexual affair. Hill abused her position of power but somehow converted that abuse into a women’s rights issue. Hill sold that narrative and is now bizarrely treated by many as a victim. Now, Hill is suing over the coverage of her scandal in a lawsuit that challenges core protections for the media.Hill filed suit in Los Angeles Tuesday against her ex-husband, Kenneth Heslep, and the owners of Redstate.com and the Daily Mail for the publication of intimate personal material, which she describes as “nonconsensual porn.” Ironically, like President Donald Trump, Hill is challenging the “carte blanche” protections for media under the First Amendment.  I was critical of Trump’s position and I am equally critical of this lawsuit.

First, I should note that I have no problem with Hill suing her ex-husband. If Heslep released revealing photos of his wife in a malicious public campaign, he is obviously subject to lawsuit. A few weeks ago, a judge granted a temporary restraining order against Heslep, ordering him to stay 100 yards away from his Hill, her relatives and her pets. (Hill claims Heslep has threatened her pets in the past).

It is claim against the media parties that concerns me the most in this action. The 41-page lawsuit, which seeks unspecified damages for emotional distress and violation of state law for distribution of intimate personal material without Hill’s consent, against defendants Salem Media Group Inc., Mail Media, Inc., writer Jennifer Van Laar (the deputy managing editor of Redstate.com), and Joseph Messina, the host of “The Real Side” Radio Show, as well as other unnamed individuals.  Van Laar’s work also appeared in the the Daily Mail (which is named as a defendant).

The complaint alleges an abusive relationship with Heslep that included the posting of nude pictures of Hill on dating sites allegedly without her consent. She then blames him with launching a campaign to destroy her politically and that the media defendants assisted in that effort. 

The problem is that the media often uses sources that have malice or personal reasons for their disclosures. The key is to confirm if the story is true. This is done with sources or confirmation beyond such any sources with malicious intent. You do not rely only on a source with a personal or malicious interest.  In this case, Hill did not deny the affair with a young staffer or other key details. Moreover, Hill does not appear to claim that the photos were false.  Just embarrassing. That would be a dangerous standard to apply to any media outlet.

The complaint asserts that “All Defendants knew or should have known that Hill had a reasonable expectation that the material would remain private.” The complaint notes that 46 states and the District of Columbia have criminalized the dissemination nude or sexually graphic images. However, revenge porn laws are not directed at the media but rather private parties like Heslep if he did distribute these photos.  Even then, there can be countervailing or complicating issues of political speech when disclosing abuse by a public officials. There are also be claims of consent or knowledge.

The use of emotional distress claims runs against the grain of various cases, including the Westboro decision of the Supreme Court in 2011. In that case, the Supreme Court has ruled 8-1 in favor of the Westboro Baptist Church. Westboro is infamous for its deranged, homophobic protests at funerals of fallen U.S. troops. In an opinion by Chief Justice John Roberts, the Court refused to allow the universal disgust at Westboro’s views influence its decision. Only Justice Samuel Alito was willing to curtail free speech to punish Westboro.

The father of a fallen Marine sued the small church under claims of harassment and an intentional infliction of emotional distress. I have previously written that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column.

Roberts held that the distasteful message cannot influence the message: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the first amendment. In this case, the Court continues that line of cases — rejecting the highly subjective approach espoused by Alito in his dissent:

“Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995).

The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of . . . ‘vehement, caustic, and some- times unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.”

On the dissemination count, there are also seriously issues raised by the application to the media defendants.  Here is the provision:

1708.85. (a) A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.

(b) As used in this section, intimate body part means any portion of the genitals, and, in the case of a female, also includes any portion of the breast below the top of the areola, that is uncovered or visible through less than fully opaque clothing.

(c) There shall be no liability on the part of the person distributing material under subdivision (a) under any of the following circumstances:

(1) The distributed material was created under an agreement by the person appearing in the material for its public use and distribution or otherwise intended by that person for public use and distribution.

(2) The person possessing or viewing the distributed material has permission from the person appearing in the material to publish by any means or post the material on an Internet Web site.

(3) The person appearing in the material waived any reasonable expectation of privacy in the distributed material by making it accessible to the general public.

(4) The distributed material constitutes a matter of public concern.

(5) The distributed material was photographed, filmed, videotaped, recorded, or otherwise reproduced in a public place and under circumstances in which the person depicted had no reasonable expectation of privacy.

(6) The distributed material was previously distributed by another person.

There are obviously a number of exceptions that can be cited by the media the defendants. Most notably, this is a scandal involving the abuse of power by a member of Congress and thus “a mater of public concern.” Second, “the distributed material was previously distributed by another person.”  Finally, there is the potential conflict with the First Amendment similar to the Westboro case on the emotional distress tort action.

Once again, I have no problem with Hill going after her husband.  However, the complaint is seeking a radical extension of liability for the media.

On a final note, it is notable that many of Hill’s supporters point to the fact that Bill Clinton was not forced to resign after his affair with a staffer. However, Democrats protected Clinton in that scandal, many of the same people now supporting Hill. In a strange sense, it is not a double standard. It is the same biased standard based on the identity or affiliation of the accused.  We have discussed that hypocrisy in relation to other claims of sexual harassment or assault involving figures ranging from Joe Biden to Andrew Cuomo.  The position in those scandals was markedly different than the one voiced in the Kavanaugh hearings. The view that “women must be believed” changed the minute that Joe Biden was accused of sexual assault and then refused to allow the review of his papers held under seal at the University of Delaware. Suddenly, figures like Nancy Pelosi and Gov. Gretchen Whitmer insisted that they believed Biden without any review such papers or even speaking with the alleged victim (a former Biden staffer).  Ethics experts like Richard Painter attacked those who suggested that the accuser might be telling the truth as endangering the election.  Others like Rep. Iihan Omar, Linda Hirschman, and Lisa Bloom found an even more startling resolution: they stated that Biden was clearly a rapist, but they would still vote for him.

Now, in addition to claiming to be the victim of a “misogynistic culture” for being forced out for her abuse of power, Hill is now seeking to rollback on the protections afforded to the media in such cases.  The media again is silent on the implications of such arguments.