Liebrecht: Free speech protects revenge porn

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The former Vermont House candidate charged with disseminating revenge porn has asked a judge to throw out the case, saying the state law is unconstitutional.

Patrick Liebrecht, 57, of Colchester was charged with the misdemeanor in September for an incident police say occurred in July, a few months after his breakup with the alleged victim.

The Vermont Republican Party first broke the news of the charge just before the general election in November, disavowing the candidate, who lost his bid for a seat in Colchester’s 9-1 House district.

An affidavit says Liebrecht, angry with his ex, posted a topless photo of the woman on a Facebook comment thread. It was taken consensually years ago with the condition Liebrecht keep it private, the document says.

The couple had an on-again, off-again relationship over eight years, court records show.

In his motion – filed in November and set to be heard in court this month – Liebrecht argues the charge should be dismissed since the law violates free speech protections. He also alleges investigating officer Jeremy Wyskiel of Colchester Police didn’t Mirandize him before conducting an interrogation, the filing reads.

Passed by the Vermont legislature in 2015, the revenge porn statute outlaws the disclosure of sexually explicit, identifiable images of adults to intimidate or harass them and which cause them harm.

Through attorney James Murdoch, Liebrecht cites case law in Arizona, which stopped enforcing its revenge porn law since it violates the First Amendment. The motion also notes the Rhode Island legislature’s passage of such a bill, only to be vetoed by the governor for its “chilling effect on free speech,” the motion reads.

Lastly, the filing cites a Vermont Superior Court decision in Bennington just last summer, in which a judge granted the defendant’s dismissal motion based on free-speech infringement. In that case, however, a third party posted the images, making it an atypical revenge porn case, the judge wrote, although it was the first test of the law in Vermont courts.

The case has since been forwarded to the Vermont Supreme Court for review.

Liebrecht’s motion says U.S. law doesn’t prohibit depictions of nudity. As such, his attorney argues, civil court is the better venue to address intrusion and emotional distress, the motion reads.

“Policing the break-ups of relationships between adults is not government interest compelling enough to satisfy strict scrutiny,” it reads, “and therefore this court must hold [the revenge porn law] unconstitutional.”

The motion further argues revenge porn fails the U.S. Supreme Court’s “three-part test” to define obscenity, an unprotected form of speech among defamation, fraud and more.

The motion says consenting adults take nude photos and should accept the risks inherent in distributing them digitally.

“Simply stated, it is unreasonable for states to criminalize the later, unwanted effects of an adult decision,” the motion reads.

Liebrecht says the image shared didn’t harm his ex, as “she has presented her nudity in public” before. His filing included screenshots of the victim’s profile on SugarDaddyForMe.com, in which the woman seeks a relationship with “no strings,” it shows.

“The court should not join in on their almost decade-long history of relationship drama,” the motion reads.

In rebuttal, the state filed a motion to seal the exhibit, calling it “irrelevant … and only attached to further harass and embarrass the victim.” Further, the image isn’t nude, unlike the image Liebrecht is charged with posting, the motion says.

A judge temporarily sealed the exhibit, pending a hearing.

Liebrecht’s motion also seeks to suppress statements he gave to Officer Wyskiel during an interview at the station last August. The motion says the officer’s affidavit gives little information about the interrogation, during which Liebrecht says he wasn’t read his rights.

A hearing is scheduled for January 30, court documents show.