katie hill congress
Rep. Katie Hill (D-CA) answers questions from reporters at the U.S. Capitol following her final speech on the floor of the House of Representatives October 31, 2019 in Washington, DC.

Win McNamee/Getty Images

  • Katie Hill is suing her ex-husband and media outlets over nude photos of her they published.
  • The judge will likely strike The Daily Mail and RedState as defendants, per a draft decision Insider obtained.
  • Experts say the case against Hill's estranged husband still has good chances.
  • See more stories on Insider's business page.

The "revenge porn" lawsuit ex-Congresswoman Katie Hill brought against media outlets for distributing nude photos of her likely won't stand in court, legal experts say.

Hill was elected as a Democratic representative in a California swing district in 2018 and the photos led to her resignation in 2019. She brought the lawsuit against her ex-husband Kenneth Heslep, who she says leaked the photos of her to the right-wing media outlet RedState and the British tabloid The Daily Mail. The lawsuit also targets RedState, The Daily Mail, and the individual journalists at those publications involved with publishing those photos.

Because Hill alleges that Heslep effectively laundered revenge porn through media outlets, taking advantage of the fact that she's a public figure, the case has been described as a source of tension between the First Amendment and the California law designed to protect victims of harassment.

"The First Amendment isn't supposed to have sympathy for people," Philip Boesch, a California-based attorney who frequently represents media organizations, told Insider. "The First Amendment is sacred among all of us who care about it. But on the other hand, factual context is important for making decisions."

A draft court decision obtained by Insider indicates that Los Angeles Superior Court Judge Yolanda Orozco will likely grant a motion to dismiss the case from the media outlets and individual journalists.

The "revenge porn" law Hill brings her lawsuit under, the draft decision says, has a carve-out for "distributed material [that] constitutes a matter of public concern." Photos of a member of US Congress in an extramarital relationship and using drugs constitutes just that, the draft says.

Eugene Volokh, a First Amendment scholar and a professor at the UCLA School of Law who's written about the case, told Insider that the California legislature "has considered this very issue" to ensure the law doesn't come into contradiction with free speech concerns.

"There is specifically an exemption for distributed material that constitutes a matter of public concern," Volokh said. "That is a rare situation when it comes to nonconsensual distribution of pornography like this, but it sometimes happens. And this seems like a classic example."

Attorneys representing Hill and Heslep didn't immediately respond to Insider's requests for comment.

The case against Hill's ex-husband may still stand

Orozco said in a hearing Wednesday that she would delay her final decision in order to hear a decision from Jennifer Van Laar, the RedState reporter and a former Republican political operative, according to the Los Angeles Daily News.

But even if Orozco dismisses Hill's case against the media outlets, that doesn't mean she'll dismiss it against Hill's ex-husband.

Boesch described the photos of Hill as traveling through a "chain" of responsibility, where media organizations illustrate the photos as being in the public interest, while Heslep likely had different motives. Heslep might deserve less First Amendment protection, Boesch said.

"If he's doing these things, it's a malicious act with the intent to hurt," Boesch said. "And arguably that is what she's focused on."

katie hill kenneth helsep
In this Jan. 3, 2019, file photo, Rep. Katie Hill, D-Calif., and Hill's husband, Kenneth Heslep, pose during a ceremonial swearing in on Capitol Hill in Washington during the opening session of the 116th Congress. Former U.S. Rep. Katie Hill sued her ex-husband and two media outlets for distributing "nonconsensual porn" without her consent that helped torpedoed her political career.

AP Photo/Cliff Owen

Volokh told Insider that the exemption cited by the judge's draft order doesn't draw a distinction between who's distributing the photos. It only matters that the photos are "a matter of public concern.

"The question is, is the material that's actually being distributed a matter of public concern? This is an unusual situation where it is," he said, adding: "It's not like there's an exception for publication by a newspaper. It's an exception for when the distributed material constitutes a matter of public concern."

Heslep hasn't responded to the lawsuit, which was first filed in December, according to court records reviewed by Insider. He is also involved in a separate lawsuit with Hill over allegations that he abused her while they were married.

Even if Heslep is ultimately found liable for leaking the photos, that doesn't necessarily mean that the Daily Mail or RedState would be running afoul of the law, according to Hannah Bloch-Wehba, a professor at the Texas A&M School of Law who studies law and technology.

"The rule is typically that the media can't be liable for just publishing information, even if the information is illegally obtained by the source," Bloch-Wehba told Insider. "So whoever ultimately leaked the photograph might have done that in violation of the law. But as long as the media outlet didn't itself violate the law in obtaining the photos, they are probably in the clear as a First Amendment matter."

katie hill restraining order
Former Rep. Katie Hill of California.

Robin L Marshall/Getty Images

Hill has characterized the RedState and The Daily Mail stories as a matter of partisan skullduggery rather than in the public interest. Jennifer Van Laar, who first published the photos on RedState's website, worked as a Republican political operative before working for RedState, according to the Los Angeles Times.

But Bloch-Wehba said a person's background wouldn't matter when it comes to free speech protections.

"The rule is not that you're entitled to First Amendment protection if you're a perfectly objective commentator who's never played a role in politics," she said.

Hill previously told Insider's Eliza Relman that she hoped to see Heslep prosecuted over leaking the photos. And she said she expected her civil lawsuit to be an uphill battle, given her public profile.

"It's going to be a tough case - it's kind of this intersection of the First Amendment and the right to privacy and where that line is drawn," she said, adding: "I think it's important for how we set the standard for the way women are treated as they run for office and are in the public eye, no matter what their circumstance is."

Boesch told Insider he can imagine the judge wanting to "do justice" in the case even if she removes the media outlets as defendants.

"I look at what happened to her, and you almost think that a judge thinking about this is going to try to find ways to do justice, not just toss out the whole thing," Boesch said.

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