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Illinois Supreme Court Upholds "Revenge Porn" Law Against First Amendment Challenge

Court Applies Intermediate Scrutiny

By Erik Bierbauer and Michael Cort

Last month, an Illinois Supreme Court majority applied intermediate scrutiny to uphold the constitutionality of the state's "revenge porn" statute against a facial First Amendment challenge. People v. Austin, 2019 IL 123910, 2019 WL 5287962 (Oct. 18, 2019). By a vote of 5-2, the Court reversed the decision of the Illinois circuit court, which had applied strict scrutiny in striking down the statute.

The Illinois Supreme Court ruling adds to a growing body of sometimes contradictory First Amendment decisions by state courts addressing laws targeting non-consensual pornography, which have been enacted in 46 states and the District of Columbia. See https://www.cybercivilrights.org/revenge-porn-laws/ (last visited Nov. 10, 2019). For example, last year an intermediate appellate court in Texas applied strict scrutiny in striking down that state's "revenge porn" law. Ex Parte Jones, No. 12-17-346-CR, 2018 WL 2228888 (Texas App., May 16, 2018) (withdrawing and superseding opinion on overruling of reh'g), reported in the April 2018 MediaLawLetter. That decision is being reviewed by Texas' highest criminal court. And in Vermont, the state Supreme Court applied strict scrutiny, but found that Vermont's non-consensual pornography law served a compelling government interest and was narrowly tailored so as to survive that demanding First Amendment standard. State v. VanBuren, 214 A.3d 791 (Vt. 2018).

Laws that target reprehensible speech often raise the thorniest First Amendment issues, and non-consensual pornography laws fit that mold. As the decisions in Vermont, Texas, and now Illinois show, First Amendment challenges to these laws pose a doctrinal quandary: Are the laws content-based, and therefore subject to strict scrutiny, because they are aimed only at intimate images? Or are the laws content-neutral, justifying a lower level of scrutiny, because they turn on the victim's lack of consent to having her (or his, but victims are disproportionately female) intimate images disclosed? After all, the laws don't target any particular idea or message that an intimate image conveys, and they don't punish publication of the very same content if done with the subject's consent.

In Austin, the state Supreme Court concluded that the Illinois law is content-neutral. The case arose from a break-up. Austin's engagement fell apart after she discovered nude photographs sent to her fiancé by the couple's neighbor, saved on the couple's shared iCloud account. Austin's ex-fiancé began telling family and friends that they broke up because Austin was crazy and no longer cooked or did household chores. In response, Austin circulated a letter telling her version of the story and attaching four of the naked pictures of the neighbor and accompanying text messages. The ex-fiancé contacted the police, and Austin was indicted for nonconsensual dissemination of private sexual images under 720 ILCS 5/11-23.5(b).

Austin moved to dismiss the charge, arguing that the statute is facially unconstitutional as a content-based speech restriction that fails strict scrutiny because it is not narrowly tailored to serve a compelling government interest. The circuit court agreed with Austin and struck down the statute. The State appealed to the Illinois Supreme Court.

Illinois Supreme Court Decision

The court first addressed the State's argument that a "categorical exception" to First Amendment protection exists for the nonconsensual dissemination of private sexual images, since it is "a category of speech that has not been protected as a historical matter." Austin at ¶ 33. The court declined to create a new category of unprotected speech, although it said that non-consensual pornography may be a "strong candidate" for such classification, if the United States Supreme Court chooses to take up the question. Id. at ¶ 36.

Next, the court addressed the big question: the proper degree of First Amendment scrutiny. The court held that intermediate scrutiny was proper for two independent reasons: first, the Illinois statute is a "content-neutral time, place, and manner restriction," and second, it regulates a "purely private matter."

With respect to time, place, and manner, the court reasoned that the statute was content neutral because it "distinguishes the dissemination of a sexual image not based on the content of the image itself but, rather, based on whether the disseminator obtained the image under circumstances in which a reasonable person would know that the image was to remain private[.]" Id. at ¶ 49. The court explained that the law addressed the manner of dissemination – that is, dissemination without consent. The content of the images was not the operative factor. The court added that invalidating the law would cast doubt on the constitutionality of other, similar regulations that prohibit the unauthorized disclosure of private information such medical records, biometric data and social security numbers. Id. at ¶ 50.

Regarding its privacy justification, the court reasoned that "first amendment protections are less rigorous where matters of purely private significance are at issue." Id. at ¶ 54 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985). The court concluded that Austin's nonconsensual dissemination of the victim's private sexual images was not an issue of public concern, as "the public has no legitimate interest in the private sexual activities of the victim or in the embarrassing facts revealed about her life." Id. at ¶ 56.

The intermediate scrutiny standard requires that a law serve "an important or substantial governmental interest unrelated to the suppression of free speech and must not burden substantially more speech than necessary to further that interest[.]" Id. at ¶ 59 (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). In Austin, the court reasoned that is well-established that the government has an interest in protecting privacy rights. It stated "that the United States Supreme Court has never declared unconstitutional a restriction on speech on purely private matters that protected an individual who is not a public figure for an invasion of privacy." Id. at ¶ 64. The Illinois court then held that, in particular, the government has a substantial interest, unrelated to the suppression of speech, in preventing non-consensual pornography. The court emphasized the "unique and significant harm to victims" that non-consensual pornography causes, including intimidation through the threat of disclosure, psychological harm, and loss of employment opportunities. The court also reasoned that the fact that many states have enacted laws to combat non-consensual pornography in recent years demonstrates a recognition of the need to protect victims. Id. at ¶ 69.

The court then held that the Illinois law is narrowly tailored under the intermediate scrutiny standard, insofar as the government's substantial interest would be achieved less effectively absent the legislation. The court stated that available civil remedies, such as privacy and copyright causes of action, are ineffective on their own because perpetrators are often judgment-proof and lawsuits subject the victim to further exposure. The court concluded that "criminalization is a vital deterrent." Id. at ¶ 76. The court further found that the elements of the Illinois law, which require intentional dissemination, reasonable awareness that the victim intended the image to be private, and knowledge that she did not consent to its dissemination, mean that the law does not burden more speech than necessary. Id. at ¶¶ 79-85.

The question of whether strict or intermediate scrutiny applies to a non-consensual pornography law will often be central to whether the law survives a First Amendment challenge. Indeed, the two dissenters in Austin argued that the Illinois law is content-based, and therefore subject to strict scrutiny, because the nonconsensual dissemination of an image of a clothed individual would not, pursuant to the majority's reasoning, constitute criminal behavior. Id. at ¶ 127 (Garman, J., dissenting). The dissenters would have struck down the law.

Given the divides among state courts and judges over the proper level of First Amendment scrutiny of non-consensual pornography laws, and the importance of the issue, the question might well end up in front of the U.S. Supreme Court.

Erik Bierbauer is Vice President, Litigation, and Michael Cort is the litigation law clerk, at NBCUniversal in New York. They were not involved in People v. Austin.

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