Florida Revenge Porn Law Doesn’t Cover Simulated Sexual Conduct That’s Implied Rather Than Shown

From the Report and Recommendation by Magistrate Judge Zachary C. Bolitho (N.D. Fla.) yesterday in Hales v. Luthmann (the same Luthmann from the Staten Island trial by combat case):

Plaintiff Jeremy Hales operates an online business that generates revenue by posting content on social media websites …. Plaintiff has over 730,000 subscribers for his “What the Hale$” channel on YouTube and over 327,000 followers for his “What the Hale$” page on Facebook.

Defendant Richard Luthmann also maintains an online presence by, among other things, posting content on a blog. In early 2025, Defendant Luthmann allegedly sent emails about Plaintiff to the Anti-Defamation League and to people who post content on YouTube. Around the same time, Defendant Luthmann also posted a video to a blog allegedly depicting Plaintiff “as Adolf Hitler by adding a Hitler mustache to Plaintiff’s photograph and engaging in oral sex with a journalist.” …

[Plaintiff] alleges that Defendant Luthmann violated Florida’s sexual cyberharassment statute, Fla. Stat. § 784.049…. To state a violation of § 784.049, a plaintiff must plausibly allege

1. Defendant published a sexually explicit image of Plaintiff on an internet website;
2. The image contained or conveyed Plaintiff’s personal identification information;
3. Defendant acted willfully and maliciously, for no legitimate purpose, and with the intent of causing substantial emotional distress to Plaintiff;
4. Plaintiff did not consent to the publication….

The dispute was about whether the video showed a “sexually explicit image,” and the court said no:

[T]he statute defines {“sexually explicit image”} as any photograph or video that depicts “nudity” or depicts “any person engaging in sexual conduct.” … [Plaintiff does not] plausibly allege[] that the video posted by Defendant Luthmann depicts “nudity” by Plaintiff…. Instead, the video shows Plaintiff’s face superimposed on somebody else’s body. The video only shows the body from the shoulders up, and the body is clothed….

An image can also be “sexually explicit” if it depicts a person engaged in “sexual conduct” [defined in relevant part to] … include[] “actual or simulated … deviate sexual intercourse.” … “[D]eviate sexual intercourse” is “sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.” …

[Plaintiff] does not plausibly allege that the video posted by Defendant Luthmann depicted a person engaged in “sexual conduct.” The video shows an image of Plaintiff Hales’s face—with an added fake Hitler mustache—superimposed on another person’s body. The video also shows an image of a woman with her mouth open.

The image of the woman then rotates before moving to the bottom of the screen such that only a portion of the woman’s hair is visible. The woman’s head then appears to go up and down, as the image of Plaintiff Hales bears an expression of excitement or shock.

Although the video is intended to mockingly suggest that Plaintiff Hales is receiving oral sex from the woman, the video does not show “contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.” Indeed, the video shows neither male nor female genitalia. The video, therefore, does not depict “actual” “deviate sexual intercourse.”

The video also does not depict “simulated” “deviate sexual intercourse.” … [T]he statutory definition of “simulated” requires two things: “[1] the explicit depiction of [sexual conduct] … which creates the appearance of such conduct and [2] which exhibits any uncovered portion of the breasts, genitals, or buttocks.” The Court assumes arguendo that the video creates “the appearance” of “contact between … the mouth and the penis” … [but] the video does not “exhibit[] any uncovered portion of the breasts, genitals, or buttocks.” …

Although the video Defendant Luthmann published is vulgar, offensive, and juvenile, it does not constitute sexual cyberharassment under Florida law. {This result is consistent with the idea that statutes prohibiting the depiction of “simulated” sexual conduct are typically intended to address situations where “[t]he portrayal” would “cause a reasonable viewer to believe that the actors actually engaged in” the depicted conduct. Here, the video—containing superimposed faces and clearly satirical elements—would not lead any reasonable viewer to believe that Plaintiff and the woman were actually engaging in sexual conduct in the video.}

The video itself appears to be the one at the very top of this page (which is linked to from the Third Amended Complaint, which in turn is referred to by the opinion). I’ve looked at it and my evaluation of it is the same as the Magistrate Judge’s (including the “vulgar, offensive, and juvenile” part).