Chelsea Manning, Edward Snowden & Celebrity Nudes

By now, virtually everyone has heard about the celebrity nudes scandal, in which dozens of female celebrities had intimate photos stored in the cloud leaked to the public.

While most of the media has refrained from re-posting these pictures – potentially in consideration of public opinion more than the ladies in question’s privacy – there have been notable exceptions. Of course, this isn’t the first time this has happened. Hulk Hogan has had his own troubles removing a sex tape from the Internet, as have countless other celebrities.

The problem, as it turns out, is that while virtually all of America agrees that re-posting this kind of content is morally reprehensible, it isn’t technically illegal. That might seem shocking, but barring the practice falls broadly under the category of “prior restraint,” which is generally considered to be unconstitutional. Let’s take a look at what this law means and why it is structured the way it is.

Prior restraint

First amendment law defines a prior restraint as any kind of government action that outlaws speech or other expression before it is made. The two commonly cited forms of prior restraint include regulations that require a permit before certain expression is allowed and judicial injunctions prohibiting certain speech. Both are usually considered to be unconstitutional.

A caveat important to the current context is that this rule applies even in cases in which the content is known to have been illegally obtained. In this case, most people would agree that entertainment news sources and the like should be barred from re-posting the stolen nudes, especially because of how they were obtained. In this light, someone might be forgiven for thinking that this is an example of bad law, but let’s take a look at the same law in a different context.

Modern whistle-blowing

While not everyone agrees with the actions of Chelsea Manning or Edward Snowden in publishing state secrets, the vast majority of Americans agree that we should have access to the information that they published. In both cases, the person in question broke the law to obtain and smuggle out information that was eventually published. Manning is currently serving a 35-year jail sentence for her actions and Snowden is taking advantage of asylum in Russia.

Constitutional rulings against prior restraint do nothing to bar the government from pursuing Manning or Snowden, but they are the reason that the government could not stop Wikileaks and The Guardian from publishing the information provided by Manning and Snowden, respectively. Despite the fact that this information was obtained illegally, to stop these news organizations from publishing this information would constitute a prior restraint.

What legal recourse is open to the actors whose intimate photos were stolen? Unfortunately, not much. It might be possible to copyright the photos, but this poses its own difficulties and ultimately would likely prove futile. Lawmakers could search for a way to specifically outlaw the re-posting of this kind of material, but it would be difficult to do so in a way that doesn’t dampen free speech.

Sadly, the only realistic option is for celebrities and concerned members of the public to exert pressure on organizations not to publish materials of this nature.

As a New York City entertainment attorney, I’ve come across issues in regards to celebrities and their privacy. My previous post Do Celebrities Have a Right To Privacy? covers this very issue.