Case Summary and Outcome

On October 18, 2019, the Supreme Court of the State of Illinois (“the Court”) upheld a “revenge porn” statute i.e. Section 11-23.5(b) of the Criminal Code of 2012, and decided that prohibiting the nonconsensual dissemination does not restrict freedom of speech and expression. 

The defendant Bethany Austin discovered an exchange between her to-be husband Matthew and her neighbour Ms. Dreher. The exchange revealed an affair between them. Later, in response, Austin sent a letter to Matthew’s family and close friends in which she disclosed the affair and attached copies of text messages and four nude photographs of Ms. Dreher. 

Ms. Austin was charged under Section 11-23.5(b). The Circuit Court, however, dismissed the charge on the grounds that the provision violated her right to free speech. In an Appeal filed by the State, the Supreme Court of Illinois reversed and remanded for further proceedings. The Court found that the statute serves a substantial government interest unrelated to freedom of speech suppression. It is only for the protection of privacy rights and the Court concluded that the statute did not burden more speech than necessary, since it restricted its application to detailed and specific circumstances. 

Eventually, a writ petition of certiorari was filed by Ms. Austin with the U.S. Supreme Court in early 2020, however, the U.S. Supreme Court dismissed the petition in October 2020.

---

Facts

The appellant, Bethany Austin was charged with “non-consensual dissemination” of “private sexual images” of Elizabeth Dreher. According to the charge, the private images of Ms. Dreher were disseminated without prior consent.

Bethany had earlier broken her engagement with her boyfriend of seven years, Matthew W. Rychlik as she had found these nude images Ms. Dreher. Before getting into a relationship with Matthew, Bethany knew that Matthew had cheated on his previous girlfriends and had a history of steroid abuse. However, he had told Bethany that he wanted a family and that he would “change” his behavior. Bethany appreciated this “honesty” and brought him into her family. They had a few arguments in the seven years that they were together.

In May 2016 Bethany discovered that Matthew was having an affair with Elizabeth Dreher. On 26th May 2016, Bethany received some “unsolicited images” along with text messages between Elizabeth and Matthew. She received them because Matthew’s phone was connected to his iCloud account which was further connected to Bethany’s iPad.

Mathew and Elizabeth were both aware of the fact that their conversation and images were in the possession of Bethany. This was evidenced by their conversation on 29th May 2016. After attempts at saving their relationship by undergoing couple’s counseling, Bethany and Mathew reached a consensus on their split. Before Bethany had announced her split to her family, Mathew told Bethany’s family that she was crazy and that she no longer cooked or did house chores. Thus, he is sleeping at another girl’s house.

Bethany considered this as her defamation as he had spread lies about her in justification of their split. On 25th August 2016, Bethany sent a four-page letter accompanied by text message printouts and nude photos.

On 28th August 2016, Matthew discovered that his cousin received a package that contained a four-page letter from Bethany along with text messages between Matthew and Elizabeth. The package also contained 4 nude photos of Elizabeth. On 30th August 2016, Matthew called Crystal Lake Police Department (“CLPD”) and reported that his “ex-fiancé mailed xeroxed copies of nude pictures of his current girlfriend to members of his family.” Matthew’s primary concern was that Bethany may do something else in the future. Officer Ryan Coutre of CLPD then spoke to Elizabeth via telephone. According to their telephonic interchange, Elizabeth was concerned about the package and she stated that she would consider signing a criminal complaint at a later time.

On 16th September 2016, Elizabeth met with the officer and stated that the pictures were private and only intended for Matthew. However, she knew at the time of sending those pictures that Matthew’s iCloud was connected to Bethany’s iPad and she could access those photos and messages. Further, between May 2016 and September 2016, Elizabeth did not request Bethany to “delete, purge or destroy” any images. Bethany was charged for “non-consensual dissemination of private sexual images” under Section 11-23.5(b) of the Criminal Code of 2012.

The Circuit court determined that the criminal charge against Bethany for distributing private sexual images of Elizabeth Dreher violated her First Amendment rights. The Circuit Court’s reasoning was that Section 11-23.5(b) imposes restrictions on speech based on its content. It does not serve any compelling government interest. Therefore, the statute was unconstitutional.

On appeal, the Illinois Supreme Court found that the statute serves a substantial government interest unrelated to freedom of speech suppression and upheld the impugned statute. The U.S. Supreme Court dismissed a further writ petition of certiorari.

---

Decision Overview

Justice Neville delivered the majority opinion of the Illinois Supreme Court. There were two primary issues before the Court. First, whether Section 11-23.5(b) is constitutionally valid as it is narrowly tailored to serve a compelling government interest. Second, whether the Circuit Court has incorrectly determined that the distribution of truly private facts is not constitutionally protected. [p. 12]

Text of the impugned statute

Section 11-23.5 addresses “nonconsensual dissemination of private sexual images” which is also referred to as “revenge porn”. The statute provides as follows:

“ (b) A person commits non-consensual dissemination of private sexual images when he or she:

1. intentionally disseminates an image of another person:

1. who is at least 18 years of age; and
2. Who is identifiable from the image itself or information displayed in connection with the image; and
3. Who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination.”

 

Setting the context

The Court proceeded to analyze whether the statute was unconstitutional. It is a set principle that all statutes are presumed to be constitutional, therefore, the burden lies upon the party challenging the statute’s constitutionality to establish its invalidity. In the present case, the defendants had to prove that the statute is unconstitutional otherwise the court shall construe it in all reasonable possibility to uphold its constitutionality.

The Court acknowledged that the judiciary struggles to understand the mechanics of the conduct relating to the nonconsensual dissemination of private sexual images and the devastation that it can cause. To highlight this, the Court used an example of Circuit Court’s observation. In its analysis, the Circuit Court observed that when a girlfriend texts a nude selfie to her boyfriend, she gives up expectations of privacy as she has shared it with a third party. However, the Supreme Court observed that the boyfriend is not a third party but a second party to the private communication. Thus, the girlfriend does not “relinquish all expectations of privacy in the images.” [para. 20]

The issue of “revenge porn” is huge as it is premised on consent. The Court observed that “consent to create and send a photo cannot be equated with consenting to distribute that photo to others outside of the private relationship.”  Thus, nudity is not inherently wrongful but exposing the body parts without that person’s will is a deprivation of her right to privacy. [para. 21]

Constitutionality of the impugned statute

With regards to the constitutionality of Section 11-23.5(b), the Court observed that determining its constitutionality cannot be avoided as Section 11-23.5(b) covers the defendant’s alleged conduct. The Court relied on People v. Nash, 173 Ill. 2d 423, 432 (1996) and observed that “a court will not consider constitutional issues where a case can be decided on other grounds.” [para. 27]

The Court then proceeded to determine the constitutional validity of Section 11-23.5(b). In this regard, the Court first identified that the conduct prohibited does not fall within an established First Amendment categorical exception as the United States Supreme Court has not yet addressed the question. [para. 36]

Next, the Court proceeded to determine “whether a given course of conduct falls on the near or far side of the line of constitutional protection.” The Court observed that in contrast to content-based speech restrictions, “regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” The Court relied on Turner Broadcasting System, 512 U.S. at 642 to make this observation. [para. 43]

Accordingly, section 11-23.5(b) is subject to an intermediate level of scrutiny since: first, section 11-23.5(b) is a content-neutral time, place, and manner restriction, and second, the statute regulates a purely private matter.

Time, Place, and Manner Test

The Court recognized that Section 11-23.5(b) targets dissemination of a specific category of speech pertaining to “sexual images”. However, the statute is content-neutral. This is because it has only an incidental effect on some speakers or messages but not on others. The Court relied on Ward v. Rock Against Racism, 491 U.S. (1989) for this reasoning. [para. 46]

The Court proceeded with its analysis by examining the Supreme Court’s observation in the case of City of Renton, 475 U.S. at 47 where the Court had observed that the Renton ordinance, whose First Amendment validity was challenged, does not fall in either the category of “content-based” or “content-neutral.” The ordinance treated adult film theatres differently from other theatres. Thus, the Court had observed in this case that the ordinance was directed not at the “content of the films” shown in “adult motion picture theatres” but at the “secondary effects” of such theatres on the surrounding community. Similarly, in Turner Broadcasting System, 512 U.S. at 659 the Court had observed that the First Amendment does not mandate a “strict scrutiny for any speech regulation that applies to one medium but not others.” [para. 48] The Court further identified from these cases that the focus is on “whether the government has addressed a category of speech to suppress discussion of that topic.” [para. 48]

Applying it to the case at hand, the Court observed that Section 11-23.5(b) protects privacy by regulating the dissemination of sexual images based on the person’s consent. Thus, there is no criminal liability if there is dissemination of sexual images with consent. Thus, Section 11-23.5(b) does not prohibit but only regulates the dissemination of a certain type of private information. Therefore, it is a privacy regulation and to invalidate it would be taking a step against other statutes protecting privacy in Illinois. [para. 50]

Thus it met the standard of a content-neutral law and it was subject to an intermediate level of scrutiny as there was a less substantial risk of excising certain ideas or viewpoints from public dialogue.

Purely Private Matter Test

The Court observed that Section 11-23.5(b) should be subjected to an intermediate level of scrutiny because it pertains to the regulation of purely private matters. The First Amendment protections are less rigorous in such cases. The Court relied on Dun and Bradstreet Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) to state that restricting speech on purely private matters is not totally unprotected by the First Amendment, but its protections are less stringent. [para. 54] Thus, in the present case, since the dissemination of the victim’s private sexual image is not a matter of public concern, they do not relate to any broad issue of interest to society at large. Accordingly, the impugned provision poses no inherent danger to free expression which would justify strict censorship. [para. 57]

Applying the test of intermediate scrutiny

The Court then proceeded to apply the test of intermediate scrutiny to the statute. In order to survive this scrutiny, the law must serve an important or substantial governmental interest. Further, it should be tailored in a manner that does not unnecessarily interfere with First Amendment freedoms. First Amendment freedoms are those which include allowing reasonable alternative avenues of communication. [para. 59]

Re: On Governmental interest

In the present case, Section 11-23.5 serves a substantial government interest. This is because government protects individual privacy rights. The court recognized that the government may act to “regulate, restrain or prohibit an act which is harmful to public welfare through a regulation or restraint.” [para. 61]

Further, the invasion of the right to privacy involves the tort of public disclosure of private facts. The Court acknowledged that the Supreme Court’s approach has always been to reconcile the tension between the right to privacy and free speech by analyzing the specific privacy claim and the public interest in the communication in each case. [para. 64]

Three consistent themes were identified by the Court through the U.S. Supreme Court precedents [para. 65]: First, speech on matters of private concern that invades the privacy interests of non-public figures does not enjoy the same level of protection as speech related to public figures. Second, state laws protecting individual privacy are not subordinate to First Amendment speech protections. Third, the broad rules or categorical holdings framing the relationship between laws protecting individual privacy and the First Amendment have not been appreciated by the Courts.

Referring to academic literature and empirical evidence, the Court acknowledges the various harms suffered by victims of revenge porn and consequently concluded that the impugned statute serves a substantial government interest unrelated to the suppression of speech.

Re: On narrowly tailored

The Court then proceeded to consider whether Section 11-23.5 is narrowly tailored to serve this government interest. The court identified that the “narrowly tailored” requirement of intermediate scrutiny is satisfied as long as the law promotes substantial government interest and in the absence of Section 11-23.5 this interest would be achieved less effectively for the residents of Illinois. Accordingly, it does not require the least speech-restrictive means of advancing the government interest.

Countering the defendant’s contention that a penal statute is not the least restrictive means to accomplish compelling government interest, the Court points out the differences between civil and criminal actions, that civil actions would be inadequate and insufficient to redress privacy violations as the trials are highly publicized and expensive and often ends in re-victimization. On the other hand, criminalization is a vital deterrent in cases of “revenge porn.” [para. 73]

Re: On whether impugned statute substantially burdens more speech than necessary

The Court next considered whether section 11-23.5 burdens substantially more speech than necessary. In this regard, the Court examined the language of this section and specific exemptions to it. Based on the statutory, it concluded that it is narrowly tailored to further important government interests as identified by the legislature. Thus, it did not burden substantially more speech than necessary. [para. 85]

Further, the Court identified that there are “reasonable avenues of communication remaining” as under this section people remain “free to produce, distribute, and consume a vast array of consensually disclosed sexually explicit images.” Moreover, they can “freely criticize or complain about fellow citizens without affecting their right to privacy.” [para. 86] Thus, this section satisfies intermediate scrutiny.

Re: On First Amendment overbreadth

With regards to whether Section 11-23.5 improperly restricts the defendant’s freedom of speech under the First Amendment, the Court held that it does not. It is upon the defendant who asserts facial challenge to establish that the statute shall not be valid in any circumstance. It is permitted out of the concern that the overbreadth law can have a chilling effect on constitutionally protected speech. [para. 89]

The Court identified that in order to address this issue it has to be determined whether Section 11-23.5(b) impermissibly restricts constitutionally protected expression in a large number of its applications. [para. 92] In the case at hand, Section 11-23.5(b) is not overbroad because it encompasses only a certain category of images i.e. images of private and sexual nature. In this regard, the Court rejected the Circuit Court’s interpretation of “sexual activity” under this statute. It had interpreted it as the criminalization of photographs of slaves, arrestees, and prisoners or the sharing of nude sketches of a person’s grandmother if his/her grandfather had been an artist. The Court observed that “the statute must be viewed as a whole” and it should be given a reasonable meaning. It further clarified the scope of the statute i.e. to protect living victims from invasion of privacy. [para. 96]

The Court, further rejecting Circuit Court’s criticism of the fact that the statute does not require proof of illicit motive, made an observation with respect to the statute that in situations of nonconsensual dissemination of private sexual images, there is no requirement of a “malicious intent”. This is because section 11-23.5(b) specifically requires that the dissemination should be “intentional.” [para. 100]

The Court concluded by stating that although the malicious purpose is not expressly mandated, the breadth of section 11-23.5(b) is effectively limited by five conditions of prohibited conduct i.e.

1. The violation of section 11-23.5(b) requires “proof of intentional dissemination”.
2. The image must consist of a “private sexual image” in which the person’s intimate parts are fully or partially exposed or visible or who is engaged in a sexual act.
3. The person portrayed must be at least 18 years old and identifiable.
4. The image must have been obtained n circumstances in which a reasonable person would know or understand that it was to remain private.
5. The person disseminating the image must have known or should have known that the person portrayed in the image has not consented to the dissemination. [para. 105]

Re: On constitutional vagueness

With regard to constitutional vagueness, the defendant argued that section 11-23.5(b) is unconstitutionally vague on its face. There are three grounds to identify a statute as vague [para. 111]:

1. When it fails to give fair warning to allow innocent people to steer clear of its prohibitions.
2. It contains insufficiently clear standards for those who enforce it and may lead to arbitrary or discriminatory enforcement.
3. Additionally, it should not be so vague that it chills the exercise of free expression by generating concern over whether such conduct may violate the statute’s prohibition.

Thus, when a statute interferes with the right to free speech then a more stringent vagueness test should apply. The Court relied on Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010) to make this observation.

The Court drew a distinction between a First Amendment overbreadth claim and a vagueness claim based on due process. As it was observed in the Holder case, a facial challenge to a statute that is premised on due process vagueness grounds can succeed “only if the enactment is impermissibly vague in all of its applications.” It does not depend on whether a law applies to a substantial amount of protected speech. [para. 112] The Court then proceeded to address the defendant’s claim that section 11-23.5(b) is unconstitutionally vague. The primary issue for determination is whether the statute provided “people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits so that one may act accordingly.” [para. 113]

It was the defendant’s primary contention that section 11-23.5 is facially vague because the term “disseminate” is not defined in the statute. Court rejected this contention as in the absence of a statutory definition the words used in a statute have their ordinary and popularly understood meaning. In the present case, the word disseminate can be used to understand “to foster general knowledge of.” [para. 115]

Defendant’s second contention was that the statute makes an exception for dissemination that serves a “lawful public purpose” but does not address what such purpose might be. The Court rejected this contention by the reasoning that the defendant cannot challenge the clarity of statutory language that is inapplicable to her case. Since the defendants did not further any argument that she had acted in furtherance of a “lawful public purpose” she is precluded from asserting “lawful public purpose” as constitutionally vague. [para. 116]

Further, the defendant’s argument that the statute violates due process because it imposes “criminal liability for nonconsensual dissemination of a private image” was rejected by the Court. The Court identified precedents in which it was held that a negligent mental state may be a valid basis for imposing criminal liability. [para. 117]

Furthermore, the Court also rejected the last contention of the defendants that section 11-23.5 violates due process because a private sexual image shared with another person is not a truly private matter. The defendant’s argument that a person who receives a private sexual image acquires an ownership interest that entitles him to disseminate without the consent of the person portrayed is a wrong assertion. The Court relied on the concept enshrined in the Thompson case, 108 Ill. 2d, 368 to recognize that a government may exercise its police power to regulate or restrain conduct that is harmful to public welfare. [para. 118]

On the basis of the above reasons, the judgment of the Circuit Court was reversed and remanded to the Circuit Court for further proceedings.

 

Dissenting opinion

Justice Garman and Justice Theis dissented and affirmed the Circuit Court’s Opinion that the statute is unconstitutional. The opinion identified that this particular statute is neither narrowly tailored nor deals with the nonconsensual dissemination of private sexual images least restrictively.

It was observed that strict scrutiny should be applied to analyze its validity because it criminalizes the dissemination of images based on their content “private sexual images”. This is because the content of the image is precisely the focus of the section, and one must look at the content of that photo to make it a possible crime . [para. 127] Contrary to the majority’s contention that section 11-23.5 only regulates the dissemination of certain types of private information, it sets forth a criminal offense because it does not lay out a “privacy regulation.” [para. 128]

The minority opinion drew a contrast in the Vermont Supreme Court’s decision in the case of State v. VanBuren, 2018 VT 95, para. 5 in which the statute under challenge made it a crime to “knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.” [para. 129]

In the present case, the impugned provision is not narrowly tailored, and its broad reach could include a gamut of conduct including “innocent conduct.” [para. 132] The minority also criticized the assumption of the majority that there is harm due to dissemination; it is an assumption because in the Illinois law, there is no objective or subjective harm requirement. [para. 133]

The opinion further relied on one of the hypothetical situations posed to the state during oral pleadings. If two people go out on a date and one later sends the other a text message containing an unsolicited nude photo and the recipient shows it to a friend, then whether the recipient has committed a felony. The state conceded that the recipient had, “assuming” the recipient should have known that the photo was intended for private use. [para. 134]

The statute is not the least restrictive means of dealing with the problem. The opinion relied on Kusper v. Pontikes, 414 U.S. 51, 59 (1973) in which it was held that “a state may not chose a legislative scheme that broadly stifles the exercise of fundamental personal liberties”. The statute could have offered a private right of action, equitable relief, temporary restraining orders, etc. Instead, it criminalizes the conduct and subjects offenders to prison. [para. 135]

The minority criticized the majority’s assumption that civil actions are inadequate. It also relied on Sable Communications of California, Inc. v. Federal Communications Commission, 492, U.S. 115, 128-30 (1989) in which it was observed that there is “no legislative finding which would justify a short of total ban to achieve the Government’s interest in protecting minors.” [para. 136] Considering that the statute in question could not withstand strict scrutiny as it is not narrowly tailored, the minority affirmed the Circuit Court’s view that the statute is unconstitutional.

 

Application to the U.S. Supreme Court

A writ petition of certiorari was filed by Ms. Austin before the U.S. Supreme Court in February 2020, however, it was eventually dismissed in October 2020. Several amicus curie briefs were filed before the U.S. Supreme Court.

The American Booksellers Association, et. al. amici brief contended that the impugned state criminal statute undermines the First Amendment of all Americans as it chills speech in substantive ways.

Specifically, they argued that:

• The effect of the impugned statute will be nationwide and hence impact the First Amendment rights.
• The use of a negligence standard invites judge and jury to displace the editors and publishers and second-guess their judgment.
• The impugned statute is not limited to malicious invasions of privacy.
• The definition of “private sexual images” is broad and may include nude or partially nude images that are neither obscene nor sexual.
• Displaying a non-obscene image of nudity or sexual conduct without the consent of a person pictured is not equivalent to a malicious invasion of privacy and hence should be differentiated.
• A strict scrutiny test was not appropriately applied by the Illinois Supreme Court in as much as it (a) adds a privacy exception to the rule that regulation of content-based speech must be subject to strict scrutiny, and (b) treats the impugned statute as a permissible “time, place, and manner” restriction, even though the statue is content-based.

The Cato Institute amici brief contended that the impugned state criminal statute undermines the First Amendment of all Americans as it chills speech in substantive ways.

Specifically, they argued that:

• The court should have applied strict scrutiny instead of intermediate scrutiny.
• The “purely private matters” test is limited to traditional categories of exceptions to the First Amendment and does not apply in criminal law. Whether the government differentiates between issues as public or private has no bearing on the level of scrutiny. (i) The private-public distinction is a misconception of the past. (ii) The Court must clarify that there is no such distinction in criminal law. (iii) Private-public distinctions cannot survive in the information age.
• The court’s application of “time, place, and manner” test revives a misconception the courts had corrected in an earlier case Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). This essence of the doctrine is that the restriction applies evenly regardless of the content of the speech, however, the reading of the court in the concerned judgments allows for content discrimination.
• There is a lack of consensus among states regarding the permissibility of such statute with respect to the First Amendment and have differing stances on the same; certain other appellate courts have required mens rea to be an element as opposed to constructive knowledge.

Further, the Woodhull Freedom Foundation amici brief similarly supports the petitioner’s cause, and additionally provides the court with several hypotheticals in which the enforcement of the statute, as it is, may in turn harm victims of harassment. [p. 15]

---