Who decides the ‘public interest’?

When Rep. Robert E. Craven sponsored a House bill for the Rhode Island Office of the Attorney General that would make illegal the distribution of certain sexually implicit images, he did not foresee any controversy.

The measure states a person can be found guilty of “unauthorized dissemination of indecent material” if they “capture, record, store or receive” images of someone 18 years or older engaged in “sexually explicit conduct” or the genitals of a person without their consent. The bill also makes illegal the intentional selling, publishing or dissemination of such images without consent from all parties, an action known as “revenge porn.”

Publication of materials deemed “in the public interest” would be exempt from prosecution.

Few would argue with the bill’s intent. But the question of who should decide what is in the public interest has sparked a dispute between the American Civil Liberties Union of Rhode Island and Attorney General Peter F. Kilmartin.

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The ACLU believes the bill would hinder the media’s ability to publish images such as those of Holocaust victims or other images that may show nudity but might be considered “in the public interest.” Under the bill, a jury could ultimately decide the question of public interest.

“It is written so broadly that it could make criminals of people involved in neither revenge nor porn. … Editors and producers would have no way of knowing in advance whether an image would be deemed to fall into this category or not,” the ACLU wrote.

Hillary Davis, an ACLU policy associate, said the bill could have a “significant, chilling effect on free speech.”

But Kilmartin called the ACLU “reckless” for trying to “instill fear. … The legislation cannot plausibly be read as a threat to the distribution of constitutionally protected material of legitimate interest to the public.”

Craven, a North Kingstown Democrat, considers the ACLU “dead wrong,” but “understands some of the concerns that have arisen from the motion-picture industry.”

The Senate has already passed a companion bill, which may be one reason why the ACLU and Kilmartin have been unable to reach a compromise, though Craven said it was still possible the attorney general could seek to add language to satisfy at least some of the concerns.

The House bill has been passed by the Judiciary Committee and as of June 8 was scheduled for a vote by the full chamber.

At press time, Gov. Gina M. Raimondo had not yet weighed in on the measure. •

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