The Indiana Supreme Court is deciding whether the state’s “revenge porn” law is constitutional.

Prosecutors charged Trine University student Conner Katz last year with secretly filming his girlfriend and sharing the video. A Steuben County magistrate threw out the case in October, arguing the 2019 law violates the First Amendment.

Deputy Attorney General Caryn Szyper argues free speech has never been a defense when there’s an invasion of privacy. She acknowledges there would be First Amendment protections for a case where the pictures or videos would be in the public interest, but says those cases would be rare, and not grounds for invalidating the whole law.

Chief Justice Loretta Rush calls revenge porn a serious problem, with websites which exist solely to host embarrassing nude pictures. She says every other state whose revenge porn law has been challenged has won. Defense attorney Stacy Uliana argues Indiana’s law isn’t identical to those other laws. For one thing, it never says the photos or videos have to be private. She says a swimming pool “wardrobe malfunction” could lead to charges under the law if someone posted a video to the Web, even though it happened in public.

Uliana contends Katz only showed the video to one person. She calls it “stupid” and “bad form,” and notes the woman is suing him. But she argues revenge-porn laws were designed for cases where images were disseminated widely, not for a case like this. She says there’s an analogy to this week’s U-S Supreme Court ruling that a school was wrong to suspend a cheerleader for a middle-finger-laden Snapchat video, in part because it was sent only to her private circle of friends.

The charge of “distribution of an intimate image” is a misdemeanor carrying up to a year in jail. The civil suit is on hold until the criminal case is resolved, because of constitutional protections against self-incrimination.