On March 12, 2020, an American man, Conner Katz, secretly recorded an intimate video of his then-girlfriend, R.S., without her knowledge or consent. Later that same day, Katz sent the video to his ex-girlfriend, C.H., using Snapchat, a social media platform known for sharing content that disappears “after a set period of time”. [p. 3] Although R.S.’s face was not visible in the video, C.H. was able to determine it was R.S. based on the context and subsequently informed her of the video’s existence. When R.S. confronted Katz via text message, Katz admitted to sending the video and expressed regret, apologizing and acknowledging that it was wrong to do so without her knowledge.

On March 26, 2020, R.S. reported the incident to the police. Subsequently, on May 28, 2020, the State charged Katz under Indiana Code section 35-45-4-8 (the statute). The statute was enacted in 2019 to criminalize the non-consensual distribution of an “intimate image,” and states that a person who “(1) knows or reasonably should know that an individual depicted in an intimate image does not consent to the distribution of the intimate image; and (2) distributes the intimate image; commits distribution of an intimate image.”

Katz responded by filing a motion to dismiss, arguing that the statute violates the First Amendment of the U.S. Constitution since it is overbroad and a content-based restriction which fails strict scrutiny – the highest standard of constitutional review in American constitutional law. He submitted that the statute violates Article 1, Section 9 of the Indiana Constitution and referred to the cases of State v. Casillas and Ex parte Jones, where Minnesota and Texas courts declared similar statutes unconstitutional.

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Indiana free speech clause states that “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible”.

The trial court found in Katz’s favor and, relying on the Minnesota and Texas cases, granted the motion to dismiss. In its ruling, the trial court held that the statute was overbroad and unconstitutional under both the Indiana Constitution and the First Amendment, finding that the statute imposed impermissible restraints on speech.

The State appealed directly to the Indiana Supreme Court.

Justice Massa of the Indiana Supreme Court delivered the opinion to which Chief Justice Rush and Justices David, Slaughter and Goff concurred. The main issue for consideration was whether the statute violates the Indiana Constitution and the First Amendment of the US Constitution.

The State argued that the statute is not unconstitutionally overbroad as it was a content-neutral restriction that satisfied intermediate scrutiny, that, even if deemed content-based, would still survive strict scrutiny due to the compelling state interest in protecting personal privacy.

The Court examined whether the State restricted Katz from engaging in an “expressive activity” and, if so, whether the restricted activity constituted an “abuse” under Article 1, Section 9 of the Indiana Constitution. The Court recognized this as its first opportunity to interpret the “free interchange” clause of Article 1, Section 9, rather than the more frequently litigated “right to speak” clause. The analysis turned on two questions: “what medium of communication are covered by ‘free interchange’” and whether Katz’s “’thought and opinion’ is limited in any way”. [p. 9]

The Court held that the “free interchange” protects “something other than words”, encompassing a “broad notion of expressive activity,” including non-verbal expression. [p. 9] This interpretation was grounded in the understanding that while the “right to speak” clause covers all verbal expression, the “free interchange” clause extends beyond words. The Court referenced silent films like those of Charlie Chaplin and iconic images such as the Tank Man of Tiananmen Square, emphasizing that words are not necessary to convey those ideas. [p. 11] The key factor, the Court noted, was “whether a medium generally communicates ideas”. [p. 12] Drawing on U.S. Supreme Court precedent, the Court noted that the First Amendment – though it prohibits only laws “abridging the freedom of speech” – has long protected expression beyond words, such as displaying a flag or wearing an armband to protest war. Accordingly, the Court confirmed that Indiana’s “free interchange” clause protects “every conceivable mode of expression.” [p. 12]

In assessing whether “expression depicting private, sexual conduct” falls within the scope of “thought and opinion,” the Court found that Article 1, Section 9 imposes no limitations. [p. 12] Unlike the First Amendment, which allows regulation of “obscene” or “pornographic” material, the Court held that Indiana’s Constitution adopts a “broad interpretation”. [p. 13] It emphasized that protection under Indiana’s Constitution is not confined to political expression and that the “free interchange” clause safeguards “any thought or opinion, on any topic, through every conceivable mode of expression.” The Court therefore held that Katz’s video depicting sexual activity was protected under Article 1, Section 9 of the Indiana Constitution and that the State imposed “direct and significant burden” on Katz’s “expressive activity”. [p. 14]

The Court then examined whether Katz’s “expressive activity” constituted an “abuse” of the right under Article 1, Section 9 of the Indiana Constitution which could then be permissibly restricted. [p. 14] The Court referred to the Price v. State case which had held that “while violating a rational statute will generally constitute abuse under § 9, the State may not punish expression when doing so would impose a material burden upon a core constitutional value”. [p. 16] In assessing whether Katz’s expression qualified as a “core constitutional value”, the Court acknowledged that political speech is a “core constitutional value” and that Katz had admitted that he did not engage in political speech. [p. 16-17] The Court found that Katz failed to demonstrate that his expression was protected under any other “core constitutional value”.

With that finding, the Court applied a “rationality review”, examining whether the State could reasonably conclude that Katz’s conduct was “abuse” or, “in other words, a threat to peace, safety, and well-being.” [p. 17] Looking at precedents, the Court noted that the rationality inquiry under Article 1, Section 9 has “historically centered on whether the impingement created by the statute is outweighed by the public health, welfare, and safety served.” [p. 17] Applying this standard, the Court emphasized the serious and widespread harm caused by “nonconsensual pornography”, reiterating its definition in the State v. VanBuren case as “distribution of sexually graphic images of individuals without their consent”. [p. 17] Quoting People v. Austin, the Court reaffirmed this as a “unique crime fueled by technology,” noting how easily these images can be disseminated online, often with identifying information, resulting in harms such as domestic and sexual violence, and psychological harm. [p. 17] The Court explained that victims of non-consensual pornography are “harassed, stalked, extorted, solicited for sex, and even threatened with sexual assault”. [p. 19] The Court pointed out that many states have passed laws targeting this crime, and none have been struck down as unconstitutional and held that, given the serious and far-reaching harm, “the public health, welfare, and safety” outweighed the limitations imposed by the statute. [p. 20] It emphasized that “the legislature has wide police powers to protect the health, morals, order, safety, and general welfare of the community.” [p. 21]

Accordingly, the Court concluded Katz’s “expressive activity” was an “abuse” and therefore his prosecution did not contravene Article 1, Section 9 of the Indiana Constitution.

The Court examined whether the statute violated the First Amendment of the U.S. Constitution and noted that Katz’s “expressive activity” could only be restricted if it were considered “obscene” under the First Amendment. However, as the State did not argue that it was obscene, the Court did not apply the strict obscenity test from Miller v. California and so the Court concluded that Katz’s expression was protected under the First Amendment.

The Court then determined four major questions: “whether non-consensually distributed private intimate images are a new category of unprotected speech”; “whether the statute is a content-neutral restriction subject to intermediate scrutiny, or a content-based restriction subject to strict scrutiny”; “whether the statute satisfies strict scrutiny by being narrowly tailored and serving a compelling government interest” and a consideration of “the statute under the overbreadth doctrine”. [p. 22-23]

The Court declined to recognize the “nonconsensual dissemination of private sexual images” as “a new category of unprotected speech under the First Amendment” [p. 24]. It pointed out that the U.S. Supreme Court has consistently rejected efforts to create new unprotected categories, such as depictions of animal cruelty, violent video games, and false statements and that the last category the Court recognized was child pornography in 1982. Citing Williams-Yulee v. Fla. Bar, the Court emphasized that “history and tradition of regulation are important factors” in deciding whether to create a new category of unprotected speech and the State had presented no such evidence. As in State v. VanBuren, the Court left the decision to identify “nonconsensual dissemination of private sexual images” as “a new category of unprotected speech” to the U.S. Supreme Court.

The Court held that the statute is a content-based restriction on speech and therefore must meet strict scrutiny under the First Amendment. Quoting Sorrell v. IMS Health Inc., the Court considered “whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” [p. 25] The Court disagreed with the State’s argument that the statute regulates the “manner” in which images are obtained or shared, not their “content”. It found that the statute “facially discriminates based on subject matter” – specifically targeting images with “sexual content and nudity” [p. 27]. The Court noted that the statute did not apply to “all disclosure of visual material without another person’s consent” but criminalized only a “subset of disclosed images” and emphasized the U.S. Supreme Court ruling in People v Austin, that “a law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive…..” [p. 25] The Court concluded that the statute distinguished content based on the message conveyed by the speaker and must survive strict scrutiny to be held constitutional. [p. 26]

In evaluating whether the statute served a “compelling government interest” and whether it was “narrowly drawn to serve that interest”, the Court emphasized that the State addressed an “actual problem” of “paramount importance” by enacting the statute. [p. 27-28] It stressed that the State worked within its “authority to safeguard its citizens’ health and safety” and concluded that the State has a compelling interest in protecting individuals from invasion of privacy and “unique and significant harms” associated with non-consensual dissemination of intimate images. [p. 28] The Court agreed with the Vermont Supreme Court in the VanBuren case that such disclosure of “intimate images” is as serious as unauthorized releases of medical or financial information – both long recognized as justifying content-based speech restrictions on speech.

The Court, quoting State v. VanBuren, emphasized that speech concerning purely private matters carries “less First Amendment importance”, making regulation more easily justified. [p. 28] With reference to Snyder v. Phelps, the Court noted that in cases of private speech, like the instant case, there is “no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the ‘threat of liability’ does not pose the risk of ‘a reaction of self-censorship on matters of public import.” [p. 28]

The Court held that the statute was narrowly tailored to serve the State’s compelling interest, noting that civil remedies are insufficient and criminal penalties serve as a necessary deterrent. It emphasized the statute’s limiting definitions and exceptions, such as exemptions for investigative purposes, mens rea requirements, and non-application to unknowing third parties.

The Court found an overbreadth analysis unnecessary, as the statute regulates protected speech and has already survived strict scrutiny. The Court emphasized the U.S. Supreme Court ruling in Members of City Council of L.A. v. Taxpayers for Vincent, that the mere possibility of some impermissible applications does not render a statute susceptible to an overbreadth challenge. It considered hypothetical applications of the statute, such as the one involving distribution of public figures, which could be a matter of “public and political concern” and observed them insufficient to invalidate the statute for overbreadth. The Court agreed with the Minnesota Supreme Court in State v. Casillas which upheld the constitutionality of a similar statute and stated that once a statute passes strict scrutiny, overbreadth review is redundant.

Accordingly, the Court held that the statute did not violate the free interchange clause of the Indiana Constitution or the First Amendment to the United States Constitution.

The Court reversed the trial court’s ruling and remanded it for further proceedings.