George Zimmerman, the Florida man acquitted of killing Trayvon Martin, was back in the news last week, this time for bad behavior on social media. After tweeting out a topless photo of his ex-girlfriend—along with the accusation that she is a thief and a slut—Zimmerman is now being investigated by police for criminal harassment.
He is not, however, being investigated for revenge porn, even though Florida recently became one of twenty-odd states with laws against posting non-consensual nudes. The reason for that is a vexatious technicality: Zimmerman cropped his ex-girlfriend's nipples out of the photo. Under Florida law, no nipples means that it is not, in fact, technically "nude." The publication of a photo that was clearly intimate—that fits the spirit of what an anti-revenge porn law was designed to prevent—does not violate the letter of that law.
Zimmerman tweeted two 'semi-nude' photos of his ex. In a strange perversion of the expected, his ex is actually lucky that he tweeted more than once about her if she wants legal consequences for him. In Florida, harassment is legally defined as "a course of conduct." In other words, it must be a pattern of harassment, not just a one-off offense.
Zimmerman's tweets are a reminder of how difficult it is to prosecute harassment and of how much what the law defines as "harassment" doesn't quite fit every real life harassment case.
"The real issue in Zimmerman’s case is that he was so careful," said Mary Anne Franks, a University of Miami law professor whose scholarship has helped develop the legal framework around non-consensual nudes in several states, including Florida.
Zimmerman, it seems, was fully aware of what makes something technically nude in his state.
It appears that "he was careful to research the law," said Franks. "The fortunate thing is he’s not so good at the law. If you look at Florida's harassment and stalking laws, it's pretty clear to me that they have a case."
The Seminole County Sheriff's office in Central Florida told me that they are investigating Zimmerman for harassing communications. Since his ex filed a complaint with the sheriff's office in September, long before last week's tweets, this could be an especially strong case.
It does not always work out so well. In The People v. Ian Barber, a revenge porn case last year in New York, the prosecution failed to make any one of three charges stick. In that case, a man posted naked photos of his ex to Twitter and sent them to her employer and sister. But he got off because his actions didn't meet the exact criterion for the crimes he was tried for: aggravated harassment, dissemination of “unlawful surveillance images," and public display of offensive sexual material. The judge called Barber’s acts, “reprehensible,” yet still found them outside the scope of any existing criminal law in the state. (Since then, New York has passed a revenge porn law.)
"There’s a problem with our law if we can't figure out how to say that someone like George Zimmerman did something wrong," Franks told me. "It may just be a reminder that law is a very, very imperfect tool."
While critical of Florida's revenge porn statutes, Franks does not advocate for expanding the definition of "nude" because it comes too close to inhibiting free speech. She doesn't define what Zimmerman tweeted as revenge porn, but she is troubled that police were only able to pursue harassment charges because he tweeted more than once.
"If he had posted just one of those tweets, it should be considered enough to prosecute him," she said.
Erica Johnstone, an attorney who founded Without My Consent, which helps people whose nude photos are posted, told me that there's good news in the Zimmerman case.
"If this had happened in 2009, I'm pretty sure people would have told his girlfriend there was nothing she could do," said Johnstone.
In recent years, the fight against revenge porn has become massively publicized and more than 20 states have made it illegal. Google, Twitter, Reddit and Facebook have all issued bans. In this case, Twitter disabled Zimmerman's account almost immediately after he tweeted the photos of his ex.
"There is never going to be a blanket solution for online harassment," said Johnstone. "But at least people are thinking about it."