Illinois Statute Addresses Growing Problem of “Revenge Porn”
Initially, the state supreme court noted that “the rise of revenge porn has (unsurprisingly) gone hand-in-hand with the increasing use of social media and the Internet, on which people constantly exchange ideas and images without asking permission from the originator.” This includes images that were obtained without consent or that were obtained with consent but then distributed without consent. In the latter circumstance, the court reasoned that “the sharing of a private sexual image in a personal and direct communication with an intended recipient does not demonstrate that the transmission was never intended to remain private.”
In response, the Illinois legislature adopted a statute prohibiting the intentional dissemination of sexual images under circumstances where the person should know that the image was to remain private. Forty-three states and the District of Columbia have enacted similar laws. Unlike those other statutes, however, the Illinois statute does not require “malicious purpose or illicit motive.”
Split Decision: State Supreme Court Finds Statute Constitutional
The woman argued that the statute was an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois constitutions. The trial court agreed and dismissed the charges. On appeal, the Illinois Supreme Court reversed.
Initially, the court reasoned that the nonconsensual dissemination of private sexual images seems to be a “strong candidate” for categorical exemption from First Amendment protection—similar to defamation, child pornography, and true threats. But it declined to recognize an exemption in the absence of such a ruling from the U.S. Supreme Court.
Because the First Amendment applied, the court had to determine what level of scrutiny should apply. The trial court and the parties analyzed the statute under strict scrutiny. But, for two reasons, the court determined that intermediate scrutiny should apply. First, it found that the statute was “content neutral” because it is “[t]he manner of the image’s acquisition and publication, and not its content,” which is “crucial to the illegality of its dissemination.” Second, the statute applied to private conduct and the “public has no legitimate interest in the private sexual activities of the victim or in the embarrassing facts revealed about her life.”
The court recited numerous harms that come to victims of revenge porn and “had no difficulty” in concluding that the statute served “substantial governmental interests.” It also found that the statute was “narrowly tailored” to serve this substantial interest, as traditional civil remedies were “insufficient to combat the evils of nonconsensual dissemination of private sexual images.” Finally, the court rejected the defendant’s claims that the statute was unconstitutionally vague and overbroad.
In dissent, two judges argued the statute should be subject to strict scrutiny because it addressed “private sexual images,” which they believed was a content-based restriction. They would have found the statute unconstitutional.
Section Leaders Look for Guidance from U.S. Supreme Court
Section of Litigation leaders believe that the decision leaves questions open for the U.S. Supreme Court. “The main opinion refused to answer directly the question of whether the right to privacy trumps the First Amendment, which is an issue that is coming crashing down the pike,” warns Warrington S. Parker, San Francisco, CA, cochair of the Section’s Criminal Litigation Committee. “This is an area where we need some guidance from the U.S. Supreme Court,” Parker adds. “It makes sense, however, that Illinois would not create a new exception when the U.S. Supreme Court has not addressed the question,” comments Darryl A. Goldberg, Chicago, IL, a member of the Criminal Litigation Committee.
Yet, Goldberg is not convinced that the court applied the correct level of scrutiny. “I find the proposition in the dissenting opinion that the Illinois statute criminalizes the dissemination of images based on ‘content’ more persuasive; accordingly, a strict scrutiny analysis ought to be the framework to determine if the statute passes constitutional muster,” observes Goldberg. With that said, Goldberg acknowledges that he can understand why the court believes intermediate scrutiny should apply if the focus is on “the ‘manner’ of the images’ acquisition and publication as opposed to the content.”