On May 4, U.S. Rep. Madison Cawthorn, a Republican who represents North Carolina’s far west in Congress, commented on Twitter that the release of a sexual video of him was “blackmail.” The case that political opponents releasing the video, which shows Cawthorn naked in a hotel room bed with another man, breaks blackmail laws may not be strong. But even some on the left are pointing out that distributing the video may violate a 2015 law against “revenge porn.”
Matt Hughes, the mayor pro tem of Hillsborough and a Democratic candidate for the N.C. House, posted on his Twitter that “There’s plenty to criticize Madison Cawthorn about without (possibly illegally) circulating nudes.” Hughes then linked to the 2015 law, as summarized on the UNC School of Government site.
The statute, which can be read on the General Assembly website, makes it a class H felony with possible additional civil liability to knowingly disclose a sexual image of another person with the intent to “coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.”
To be in violation of the law, the depicted person must be identifiable in the image “or from information offered in connection with it,” “the depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image,” “the person discloses the image without the affirmative consent of the depicted person,” and “the person discloses the image under circumstances such that he or she knew or should have known that the depicted person had a reasonable expectation of privacy.”
Many or all of these elements seem to be satisfied in the distribution of the video, which was released (as seen in the image below) by American Muckrakers PAC , also known as the Fire Madison Cawthorn PAC. The PAC is co-founded and run by Cawthorn’s 2020 Democratic opponent Moe Davis of Asheville.
“I haven’t seen the video, but if it does, indeed, show Cawthorn ‘engaged in sexual conduct… whether actual or simulated,’ then unless the person or persons who posted it can prove Cawthorn had no ‘reasonable expectation of privacy’ regarding the video, posting it would certainly appear to violate the statute,” said Jon Guze, John Locke Foundation’s senior legal studies fellow. “If charged, however, the person or persons who posted it could mount a defense by claiming prosecuting them under the statute violates their right to freedom of speech under the US and NC Constitutions.”
Guze said that the constitutionality of N.C.’s revenge porn statute hasn’t been tested in court. But since similar statutes have been upheld in other states, he said he suspects “the NC law would also survive a facial challenge.”
Facial challenges are a defense that argues the law itself is unconstitutional; as-applied challenges argue instead that the law, even if constitutional, doesn’t apply to the defendant.
So, while a facial challenge isn’t likely to work, Guze said, “Given the fact that Cawthorn is a public figure who is running for office, and given that the video could be said to provide important information about his moral fitness and his decision-making capabilities, an as-applied challenge would have a better chance of succeeding. A court could find that, while the statute is constitutional under most circumstances, the US and NC constitutions protect this particular defendant’s right to post this particular video under these specific circumstances.”
In response to the video, Cawthorn tweeted, “A new hit against me just dropped. Years ago, in this video, I was being crass with a friend, trying to be funny. We were acting foolish, and joking. That’s it. I’m NOT backing down. I told you there would be a drip drip campaign. Blackmail won’t win. We will.”
Twitter has removed posts of the video, saying that they violate their terms of service.
The scandal over the video is only the latest in a long string of negative stories that have plagued the 26-year-old congressman. Cawthorn is currently in a hotly contested primary to keep his seat.
Editor’s note: After this article published, David Wheeler, president of the American Muckrakers PAC (firemadison.com), the organization that released the video of Cawthorn, reached out to CJ to give some of their reasoning behind the decision to publish it. The statements below were added on May 12, 2022, after this discussion.
“I think it’s important that people in N.C. and the voters know that we put this through a vetting process,” Wheeler said. “We take very seriously North Carolina’s revenge porn law, and in this case, the elements of revenge porn were not met. So we posted it.”
Wheeler admits that the video was a border case, but he didn’t believe the body parts shown made it porn under the law. He also said the PAC believes that it was “in the public interest” to see the video because Cawthorn is a public official.
“We felt it was too much in the public interest to just sit on it. And obviously our organization’s focus is to get rid of Madison Cawthorn, and for us to sit on something that we could legally publish, even though it maybe, we admit that it maybe skirts the boundaries of ethics. We don’t think it was unethical on our part. But it was close to the ethical line. But he’s a sitting member of Congress. And I think any and all information that we can legally publish is fair game.”