People v. Austin, 2019 Il 123910. October 18, 2019.
Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent.
A trial court found the statute to be an impermissible content based speech restriction, The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.
The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.
The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published. This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes.
There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world. Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged.
The court’s majority sidestepped content analysis by observing that the statute does not concern content so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary. Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.
The court declined to announce a new species of speech categorically unprotected by the First Amendment. Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny.
The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information. Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.
Given the statute’s narrow scope — the intentional distribution of sexual images understood to be private — the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.
The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections. Being cognizant of whether an image was intended to be private does not require mind-reading.
Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content: private sexual imagery. The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found. There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.
JustLawful Observation: Within the past decade many states have enacted laws criminalizing the publication of private images. Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute. This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.