Abcarian: Why Katie Hill has to pay legal fees for a newspaper that published nude photos of her

I feel for former U.S. Rep. Katie Hill, I really do.

Hill, 33, was a rising Democratic star from a traditionally red California district. Her political career came crashing down in 2019 after she left her husband. Someone leaked salacious photos of her with a female campaign staffer, and the House Ethics Committee launched an investigation into whether she had an inappropriate relationship with a male congressional staffer, which she has denied.

Rather than hand Republicans a convenient distraction as Democrats were about to launch the first Trump impeachment inquiry, Hill stepped down after serving only 10 months in Congress. I wish she hadn’t resigned, but she took responsibility for her behavior, which was refreshing.

In her new memoir, “She Will Rise,” Hill writes about her emotions in the aftermath of the scandal: the guilt, shame, anger, sense of violation and suicidal thoughts.

“How could I ever face anyone again,” she writes, “knowing what they’d seen? What they knew?"

Thoughts of her family and a sense of responsibility to the young women she’d inspired helped pull her back from the brink.

She rallied, then did what any red-blooded American would do. She sued the hell out of the people she believed had done her wrong: her ex-husband, Kenny Heslep, who has denied leaking the photos, a radio host later dropped from the lawsuit, and a journalist named Jennifer Van Laar who provided the photos to the conservative website Red State and the British tabloid Daily Mail.

Hill claimed they all had violated California’s 2013 revenge porn law, which makes it a crime to share “intimate images” of a person without consent.

Lawyers for the defendants argued that Hill’s lawsuit was an attempt to squelch their constitutionally protected right to free speech. They invoked California’s anti-SLAPP law, which prohibits meritless lawsuits designed to chill free speech and allows defendants to collect attorney’s fees if they prevail.

Los Angeles Superior Court Judge Yolanda Orozco agreed. In April, she tossed out Hill’s lawsuit on constitutional grounds, and on Wednesday, she ordered Hill to pay her opponents’ legal fees, which could top $220,000.

“A judge just ordered me to PAY the Daily Mail more than $100k for the privilege of them publishing nude photos of me," Hill tweeted Wednesday. “The justice system is broken for victims.”

But of course, it’s not as simple as that, especially for people who have thrust themselves onto the public stage, as Hill has voluntarily done. She was an inexperienced politician, yes, but she had run a homeless services agency and surely knew the ethical and legal perils facing a boss who sleeps with a subordinate, especially a much younger one, as was the case with Hill and her staffer, who was in her mid-20s at the time. So, while the revenge porn law is a much-needed corrective to the privacy abuses of our digital age, there are situations where, painful as it may be, it simply cannot apply.

California’s revenge porn law contains a very clear exception for images that are deemed to be “in the public interest,” and there is nothing more clearly in the public interest than newsworthy information about an elected member of Congress.

“This ‘public interest exception’ is part of the 1st Amendment,” said Loyola Law School professor Jessica Levinson. “It’s constitutionally mandated. Once you enter the public forum, you give up a lot of your privacy rights.”

But were those photos really newsworthy?

Was the electorate truly enlightened by the image of a naked Hill brushing the hair of a woman on her campaign staff, with whom she and her husband were part of a “throuple”? Or of a naked, stoned-looking Hill holding a bong? Was it important for the world to know that Hill has a small tattoo of an iron cross on her pelvis?

The judge thought so. In her ruling, she wrote that the photos spoke to Hill's "character and qualifications for her position."

The fact that the question of newsworthiness can even be debated points to the answer, said Levinson.

“We can have a conversation about, ‘Do I care she was smoking marijuana, or do you care she was in these situations?’ but the law doesn’t say, ‘If reasonable minds could differ then the public doesn’t get to know.’ Our strong 1st Amendment traditionally says if it could be of legitimate interest to the public, we think there is a bigger public harm from punishing people for releasing that information than for releasing it.”

Hill’s attorney, Carrie Goldberg, who specializes in representing victims of revenge porn and online abuse, said she is considering an appeal. She said the basis of Hill’s revenge porn lawsuit was that private photos of her were distributed, not that they were published.

“There is just a basic procedural unfairness here when you apply anti-SLAPP laws to revenge porn matters,” she told me Thursday. “It is a crime to distribute nude pictures without consent.”

At this point, that seems like a slim reed on which to hang an appeal.

Personally, I don’t think Hill should waste her time.

She needs to take the L and move on.

This story originally appeared in Los Angeles Times.