Illinois Supreme Court Caves To Unconstitutional Revenge Porn Crime

Up to now, only one state supreme court, Vermont, held a revenge porn law constitutional, and it was largely due to the inadequacy of the arguments. Even so, the court recognized two fundamental aspects of First Amendment law, that speech that did not fit within an established categorical exception was protected, and that protected speech was subject to strict scrutiny. Rather, Vermont claimed to apply strict scrutiny, but didn’t.

Recognizing the failing of Vermont’s effort, the Illinois Supreme Court took a different tack in State v. Austin, reversing the lower court’s holding that the law was, clearly, unconstitutional. The court didn’t dispute that this was a content-based statute and it didn’t fit into any categorical exception. Therefore, it was protected speech. But it then played a trick.

First,the Illinois Court explicitly claims, at *10-*12, not to identify a new category of speech that falls outside of First Amendment protection.

It then holds that the statute “regulates a purely private matter,” so that the strict scrutiny that applies to content-based restrictions does not apply.

In effect, the Illinois Supreme Court has identified “speech on purely private matters” as a category of speech that—just like speech in recognized categories of historically unprotected speech—is not subject to the same protection from content-based restrictions as other speech.

Where Vermont at least recognized that strict scrutiny had to apply, because the United States Supreme Court said so, though the court then failed to apply it, the Illinois Supreme Court claimed not to create its very own new exception and then did exactly that.

We conclude that section 11-23.5(b) is subject to an intermediate level of scrutiny for two independent reasons. First, the statute is a content-neutral time, place, and manner restriction. Second, the statute regulates a purely private matter.

Its first rationale, that it’s a content-neutral time, place and manner restriction, is what the Texas Tornado, Mark Bennett, refers to as the “secondary effects” argument of the sort favored by jailhouse lawyers. He’s being a bit too kind.

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.

TPM restrictions apply to the manner in which protected speech is disseminated, not the manner in which it was obtained. The limits of TPM arose from the zoning regulation of “adult theaters,” an unfortunate, but limited, legal anomaly.

The Supreme Court agreed with the lower court that “the City Council’s ‘predominate concerns’ were with the secondary effects of adult theaters, and not with the content of adult films themselves.”

Then the court devolves into its non-category category of “purely private speech” by the back door.

Section 11-23.5 does not prohibit but, rather, regulates the dissemination of a certain type of private information. Viewed as a privacy regulation, section 11-23.5 is similar to laws prohibiting the unauthorized disclosure of other forms of private information, such as medical records (410 ILCS 50/3(d) (West 2016)), biometric data (740 ILCS 14/15 (West 2016)), or Social Security numbers (5 ILCS 179/10 (West 2016)). The entire field of privacy law is based on the recognition that some types of information are more sensitive than others, the disclosure of which can and should be regulated. To invalidate section 11-23.5 would cast doubt on the constitutionality of these and other statutes that protect the privacy rights of Illinois residents.

Putting aside the emptiness of the first sentence, as it “regulates” dissemination by prohibiting it, the comparisons to other regulations, based on entirely distinct bases,* the logic is circular: This law is constitutional because if we held it wasn’t, it would call into question other unconstitutional laws.

The Illinois Supreme Court seizes upon the unfortunate rhetoric that has found its way into Supreme Court opinions, not as a sign of limitation but to justify its holdings when it serves its purposes.

We conclude that section 11-23.5(b) is subject to an intermediate level of scrutiny also because the statute regulates a purely private matter. Speech on matters of public concern lies at the heart of first amendment protection. The first amendment reflects a national commitment to the principle that debate on public issues should be robust and uninhibited. Accordingly, speech on public issues occupies the highest position of the hierarchy of first amendment values and is entitled to special protection. Snyder v. Phelps, 562 U.S. 443, 451-52 (2011).

In order to “sell” its decision in Snyder v. Phelps, a case of terrible conduct and great offense, the Court wrapped its holding in the lofty language of principle, that “debate on public issues should be robust and uninhibited.” And, of course, it should.

But what the decision neither said nor meant was that speech that dealt with matters that weren’t “of public concern,” but were nonetheless protected under the First Amendment, didn’t enjoy the exact same protection.

Indeed, we observe that the United States Supreme Court has never declared unconstitutional a restriction of speech on purely private matters that protected an individual who is not a public figure for an invasion of privacy.

Yet, to a court desperately seeking a rhetorical gap to manufacture an alternative argument, the lofty dictum included to make the ruling more palatable provided the means for the Illinois Supreme Court to manufacture a distinction.

Applying these principles to the instant case, we have no difficulty in concluding that the nonconsensual dissemination of the victim’s private sexual images was not an issue of public concern.

And in the case before the court, that was correct, but it fails to address the facial unconstitutionality of the statute by using one particular fact pattern and ignoring the myriad applications of the statute to protected speech beyond what happened to Bethany Austin.

And we now have a second state court decision holding a revenge porn crime constitutional, reversing the lower appellate court’s ruling and creating an entirely new categorical exception to the First Amendment while proclaiming it was doing nothing of the sort.

*Regulations protecting the privacy of medical records, for example, apply to physicians and insurance companies, as limits of their regulated business activities, not as a general speech regulation. Your doc can’t disclose your medical records, but I can because I’m not a physician and subject to a regulation as an incident of my having the state’s approval of my practice of my profession.

6 thoughts on “Illinois Supreme Court Caves To Unconstitutional Revenge Porn Crime

  1. B. McLeod

    If the nonconsensual dissemination of the victim’s private sexual images was not a matter of public concern, why was a municipal law then needed to address it? The sheer scale of the hypocrisy here is monumental.

    Reply
    1. SHG Post author

      While I’m not sure I follow your arg, it’s irrelevant as far as I’m concerned. There is no “purely private speech” exception to the First Amendment, and thus no reason to argue its merits or limits.

      Reply
          1. B. McLeod

            If this was about bathrooms or something, it would probably be granted cert. But then, some of the justices hail from Harvard, where they learned the importance of having access to very fine bathrooms.

            Reply

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