Katie Hill Nakey Pix: Unlegal Or MOST UNLEGAL Or Actually Kind Of Protected?

It's your lawsplainer!

Katie Hill is one of the young freshman congresswomen elected in the 2018 wave. She is vice-chair of the powerful House Oversight Committee. In 2018, Hill flipped a Republican seat in the typically conservative 25th congressional district near LA, roundly defeating incumbent Stephen Knight. She is also an out bisexual woman who is in the midst of a messy divorce from husbandKenny Heslep, whom Hill says was emotionally abusive.

Yesterday, the right-wing blog RedState published nude photos of Hill (here's a link to Wonkette, instead of RedState! and no you don't get the nakey pix) along with a story alleging she was in an inappropriate relationship with her legislative director and had previously been involved with a woman who worked on her campaign who we will not name because she is a private person living a private life. Shortly thereafter, the British tabloid Daily Mail followed suit, publishing two nude photos and several other intimate photos of Hill and the woman who worked on her campaign. (In this instance, RedState was slightly better than the Daily Mail , publishing just one nude photo, blurring the other woman's face and not identifying her by name.)

After the photos were published, Marc Elias and Rachel Jacobs from Perkins Coie sent a cease and desist letter to the Daily Mail on Hill's behalf, demanding the photos be taken down. The letter alleges that the Daily Mail violated several California laws, including its revenge porn statute.

Hill has confirmed that she had an "inappropriate relationship" with the woman who appears in the leaked photos with Hill -- and apologized for it , saying "I know that even a consensual relationship with a subordinate is inappropriate, but I still allowed it to happen despite my better judgment."

But Hill denies being involved with legislative director, and at this time, there is no evidence that she is or was, other than assertions from her soon-to-be-ex-husband.

In a statement to Politico, Hill said:

The fact is I am going through a divorce from an abusive husband who seems determined to try to humiliate me ... I am disgusted that my opponents would seek to exploit such a private matter for political gain. This coordinated effort to try to destroy me and people close to me is despicable and will not succeed ... I, like many women who have faced attacks like this before, am stronger than those who want me to be afraid.

If Hill has been involved in a sexual relationship with Kelly while he was her staffer, that's a violation of congressional ethics rules. House Rule XXIII , clause 18(a), enacted last year in response to #MeToo and John Conyers sexually harassing staffers, prohibits Members of Congress from "engag[ing[ in a sexual relationship with any employee of the House who works under [their] supervision". The House Committee on Ethics announced an investigation into Hill's alleged relationship with her legislative director on Wednesday.

The relationship with the woman, which Hill has admitted to, was inappropriate but not afoul of any laws or congressional rules. (Although many believe congressional ethics rules should also apply to campaigns -- and there is a good argument for this -- currently they do not.)

Let's lawsplain this

The cease and desist letter summarizes the events this way:

Katie Hill, like many women in marriages that end in separation, endured years of emotional abuse from a now-estranged husband. After she faced an onslaught of vindictive, malicious and invasive attacks in the past week, your publication asked her this morning "[i]f you wish to comment" on DailyMail.com's professed intention to distribute lewd images of her, of unknown and unverified provenance. By spreading these purported claims, and dehumanizing and shaming images across the globe, you have perpetuated the cycle of abuse Representative Hill has endured.

Elias argues that the Daily Mail 's publication violated several laws, including California's criminal and civil revenge porn laws. He also states that the tabloid rag defamed Hill by likening her tattoo to Nazi regalia and intentionally inflicted emotional distress on the congresswoman.

The Daily Mail is no stranger to lawsuits and legal threats. In 2017, it settled a lawsuit with Melania Trump over a story that reported the existence of a book alleging that she had worked as an escort. And in 2014, it printed an apology and paid damages to JK Rowling for false statements it had made about her.

With regard to the revenge porn laws, the cease and desist letter notes:

You have also exposed your publication to grave legal consequences for California has some of the strongest criminal laws in the United States against the secretive generation and distribution of private, sexual images. As a California court has said: "It is evident that barring persons from intentionally causing others serious emotional distress through the distribution of photos of their intimate body parts is a compelling need of society."

There's some debate over whether the photos the Daily Mail published qualify as "revenge porn" under California law. California Penal Code § 647(j)(4) makes it a crime when:

A person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

It defines "intimate body part" as "any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing."

The photos published by the Daily Mail and RedState crudely covered Hill's nipples and crotch. However, they clearly show Hill's "breasts below the top of the areola," with no clothing covering it.

The cease and desist letter also argues the Daily Mail could be held civilly liable for publishing the photos, stating:

California law provides private causes of action against the publication of such photos. For example, there exists "[a] private cause of action against any person who intentionally distributes by any a means a photograph" 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…; and (3) the other person suffers …damages,"4 including damages related to "loss of reputation, shame, mortification, and hurt feelings." Publishing what is offered as nude photographs of any person without his/her consent plainly satisfies all of these requirements. Violating either of these provisions is punishable by up to six months of incarceration. Police have already begun investigating other, spurious images posted without Rep. Hill's consent and have been notified about threats of future publication.

This comes from California Civil Code § 1708.85 , which defines "intimate body part" in the same way as the criminal code above. However, it includes several exceptions, including when "the distributed material constitutes a matter of public concern" and when "the distributed material was previously distributed by another person." Both Daily Mail and RedState are likely to argue in any legal proceedings that they simply reposted photos that were actually distributed by someone else (likely Hill's estranged husband), and that the photos are a matter of public concern because Hill is a sitting member of Congress.

There's also a potential First Amendment angle to all this. Pornography is protected by the First Amendment and the Supreme Court has never examined the validity of a so-called "revenge porn" statute. Although the California law takes care to exempt matters of public concern, that doesn't negate the fact that pornography has historically been constitutionally protected. While certain types of pornography have been criminalized in some states, that is based on an exemption for "obscenity" that SCOTUS has recognized. There is no good catch-all definition of obscenity, and generally a court has to examine the circumstances of each case to determine whether the material at issue is "obscene."

Hill and the young woman appearing in the photos published by the Daily Mail may also have actionable claims of invasion of privacy. Because Hill is a member of Congress, there is a reasonable First Amendment argument that the photos were newsworthy. On the other hand, there is no real public interest in seeing a congresswoman naked, and the same story could easily have been published without showing so much of Hill's body.

Both women also have solid claims for intentional infliction of emotional distress. People can recover for IIED in California when conduct "is so extreme as to exceed all bounds of that usually tolerated in a civilized community." Publishing nude and intimate photos of people without their consent would certainly seem to qualify.

As of now, the photos remain available on both websites -- and all over the internet. When I Googled Katie Hill this morning, "Katie Hill photos" was the first suggested result. Even if Hill were able to get the photos removed from the two websites, nude photos of her -- with her genitals and private parts barely covered -- would remain all over the internet. Once your nude photos have been put on the internet and received wide distribution, there is no getting them back. And there is no excuse for anyone to share photos like that of someone else, no matter how acrimonious the split.

As Hill's lawyers stated in the cease and desist letter:

No one—not Representative Hill, not anyone else—should ever be expected to endure a publication like that which she has suffered today.

Truth.

[ Cease and Desist / Cal. Pen. Code § 647 / Cal. Civ. Code § 1708.85 / House Rule XXIII ]  

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