Florida Revenge Porn Law Doesn't Cover Simulated Sexual Conduct That's Implied Rather Than Shown
A federal magistrate judge in Florida has concluded that the state’s sexual cyberharassment law does not cover a manipulated video that merely implies sexual activity when the legally defined sexual conduct is not actually depicted. The recommendation arose in Hales v. Luthmann, involving online content creator Jeremy Hales and blogger Richard Luthmann.
Hales operates the popular “What the Hale$” social media channels, with more than 730,000 YouTube subscribers and 327,000 Facebook followers. He alleged that Luthmann published a manipulated video showing Hales with a Hitler style mustache and appearing to receive oral sex from a female journalist.
Hales argued that the video violated Florida Statute § 784.049, the state’s sexual cyberharassment law. The statute prohibits publishing a sexually explicit image of an identifiable person without consent when done willfully and maliciously, without a legitimate purpose and with the intention of causing substantial emotional distress.
The central legal question was whether the manipulated video qualified as a “sexually explicit image.” Under Florida law, that requires an image or video depicting nudity or a person engaging in legally defined sexual conduct. The court found that the video satisfied neither requirement.
The manipulated footage showed Hales’ face superimposed onto another person’s clothed body. Only the upper body was visible, and there was no nudity. Although the movements and positioning of the images were clearly intended to suggest oral sex, the video did not actually depict genitalia or physical sexual contact.
The court also considered whether the material constituted simulated sexual conduct. Florida’s statutory definition requires an explicit depiction creating the appearance of sexual activity while also displaying an uncovered portion of the breasts, genitals or buttocks. Because none of those body parts appeared in the video, the judge concluded that the statutory definition was not satisfied.
Another factor was the obviously manipulated and satirical character of the footage. The magistrate judge concluded that a reasonable viewer would not believe Hales and the woman were genuinely participating in the depicted sexual activity. The court characterized the video as vulgar and offensive but determined that those characteristics alone were insufficient to bring it within Florida’s sexual cyberharassment statute.
The decision illustrates an important limitation in laws governing revenge porn and manipulated sexual imagery. Content can be deliberately created to imply that an identifiable person is participating in sexual activity and potentially cause reputational or emotional harm, yet still fall outside a statute when the law requires specific visual elements or explicitly depicted sexual conduct.
