Illinois Supreme Court Says State's Revenge Porn Law Is Constitutional While Barely Trying To Apply The Constitution To It

from the akshually-its-a-privacy-law-etc dept

The Illinois state Supreme Court has reached a questionable decision that has the potential to negatively affect First Amendment expression in the state. (h/t Orin Kerr)

It stems from a revenge porn prosecution. The defendant was charged with one count of "nonconsensual dissemination of private sexual images" after sharing sexual photos her ex-fiance had received from a neighbor. She sent screenshots of the photos received (via an iCloud account she and her ex shared) to her fiance's cousin while explaining her side of the breakup. Her ex called the police after he learned of the letter. The neighbor who sent the explicit photos testified these pictures were not meant to be shared. (The victim also testified she knew she was sending them to a shared iCloud account that would allow others to see the photos but thought that account had been deactivated before she sent the nudes.)

Not your average revenge porn case. The defendant challenged the law and her sentence, and the circuit court agreed with the defendant's First Amendment arguments, finding the law imposed unconstitutional restrictions on speech based on its content.

The state Supreme Court has reversed this decision in a longish decision [PDF] that spends a lot of time discussing how it's possible to engage in content-based censorship without troubling the First Amendment too much. The decision opens with several quotes from Danielle Citron and Mary Anne Franks -- two law professors who have helped craft a number of revenge porn laws.

Here's the state's statute, which certainly appears to target only a very specific form of content:

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

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) 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.

That's not how the court sees it, though. It says this law doesn't have much to do with content, even though the law targets very specific content. To lower the Constitutional scrutiny bar, the court takes a plain reading of a law targeting the unauthorized dissemination of sexual content and twists it into something else completely. Even though the statute enumerates the precise type of content it seeks to regulate, the court decides the law is actually about privacy, rather than content.

In the case at bar, section 11-23.5(b) is justified on the grounds of protecting privacy. Section 11-23.5(b) 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 and knows or should have known that the person in the image has not consented to the dissemination. 720 ILCS 5/11- 23.5(b)(2), (b)(3) (West 2016). There is no criminal liability for the dissemination of the very same image obtained and distributed with consent. The manner of the image’s acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination.

Having done this (and compared the nonconsensual sharing of private images with the unauthorized sharing of Social Security numbers or medical records), the court declares the content-based restrictions to be content-neutral and moves on with its reversal of the lower court.

Content-neutral laws are subject to an intermediate level of scrutiny because they generally present a less substantial risk of excising certain ideas or viewpoints from the public dialogue. Minnis, 2016 IL 119563, ¶ 33 (citing Turner Broadcasting System, 512 U.S. at 642). Section 11-23.5(b) meets this standard.

Obviously, this is wrong. The law does not forbid the nonconsensual sharing of any content the sender believes to be "private." It only criminalizes the sharing of certain content: sexual acts and/or intimate parts. Nonetheless, the state Supreme Court firmly believes this is a privacy law, not a speech law, and as such, it has no problem ignoring the speech concerns. If the state is seeking to protect people's privacy with this law (as the court imagines it is), then the law is narrow enough to survive the Constitutional scrutiny the court isn't actually willing to apply.

Unlike strict scrutiny, which requires the least restrictive means to accomplish a compelling government interest, the “narrowly tailored” requirement of intermediate scrutiny does not require that the regulation be the least speech-restrictive means of advancing the government interest. Rather, the “narrowly tailored” requirement of intermediate scrutiny is satisfied so long as the law promotes a substantial government interest that would be achieved less effectively absent the law.

The last thing is what matters most, according to the court. There may be a better, more Constitutional way to handle revenge porn, but the court says the state shouldn't have to bother because this law seems to be working pretty well so far.

We conclude that the substantial government interest of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively absent section 11-23.5.

The dissent points out the obvious: the statute regulates speech based on content and needs to be held to a higher standard:

The majority... contends section 11-23.5 “does not prohibit but, rather, regulates the dissemination of a certain type of private information.” Supra ¶ 50. But the statute does not lay out a “privacy regulation,” it sets forth a criminal offense. As the statute criminalizes the dissemination of images based on their content, it should be viewed as a content-based restriction on speech that must survive strict scrutiny to be valid.

The law also does not examine the accused's intent. That matters, too. Other states with similar laws have at least attempted to ensure "revenge porn" has something to do with revenge. In Illinois, sharing these images without intending to harm the person depicted (as in this case where someone tried to explain why they ended a long engagement with their partner by sharing the nude pictures being sent to her fiance) is still a crime.

So is this:

A hypothetical posed to the State during oral argument illustrates this point. Two people go out on a date, and one later sends the other a text message containing an unsolicited and unappreciated nude photo. The recipient then goes to a friend, shows the friend the photo, and says, “look what this person sent me.” Has the recipient committed a felony? The State conceded that the recipient had, assuming the recipient knew or should have known that the photo was intended to remain a private communication.

Narrow crafting involves taking many things into consideration, including the intent of the person sharing the images. This law targets speech based on content but escapes strict scrutiny because the court has decided it's about the sharing, rather than the content, even if only certain content being shared has been criminalized. It's an internally inconsistent opinion and it allows a bad law to stay on the books unedited -- one that's sure to result in more collateral damage the state's Supreme Court will be unwilling to sort out.

Filed Under: 1st amendment, content neutral, free speech, illinois, privacy, revenge porn, strict scrutiny