People v. Austin
2019 IL 123910 (2020)
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Rule of Law:
A state statute criminalizing the nonconsensual dissemination of private sexual images does not violate the First Amendment because it is narrowly tailored to serve the substantial government interest of protecting citizens' privacy rights in matters of a purely private nature.
Facts:
- Bethany Austin and her fiancé, Matthew, lived together and shared an iCloud account, causing all text messages from Matthew's iPhone to sync to Austin's iPad.
- Matthew was aware that this data sharing arrangement was active.
- While engaged, Austin discovered text messages on her iPad between Matthew and a female neighbor, which included nude photographs of the neighbor.
- Both Matthew and the neighbor knew that Austin had received the messages and images on her iPad.
- After Austin and Matthew ended their engagement, Matthew told family and friends their relationship failed because Austin was 'crazy' and neglectful.
- In response, Austin wrote a letter to give her side of the story, attaching four of the neighbor's nude photographs and copies of the text messages.
- Austin sent this letter and its attachments to at least Matthew's cousin, who then informed Matthew.
Procedural Posture:
- The State charged Bethany Austin by indictment in the Circuit Court of McHenry County with one count of nonconsensual dissemination of private sexual images.
- Austin moved to dismiss the charge, arguing that the statute was facially unconstitutional as a violation of the First Amendment.
- The circuit court (trial court) granted Austin's motion, finding the statute to be an unconstitutional content-based restriction on speech.
- The State, as the appellant, filed a direct appeal to the Supreme Court of Illinois, with Austin as the appellee.
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Issue:
Does section 11-23.5(b) of the Illinois Criminal Code, which criminalizes the nonconsensual dissemination of private sexual images, facially violate the free speech protections of the First Amendment?
Opinions:
Majority - Justice Neville
No, section 11-23.5(b) does not violate the First Amendment. The statute is a constitutional regulation of speech because it survives intermediate scrutiny. The court declined to apply strict scrutiny, reasoning that the statute is a content-neutral regulation justified by the desire to protect privacy, not to suppress a message, and that it regulates speech on a purely private matter, which receives less First Amendment protection. The State has a substantial interest in protecting its citizens from the profound harms caused by the nonconsensual dissemination of private sexual images. The statute is narrowly tailored to this interest because its application is limited by several factors: it only applies to intentional dissemination of private sexual images of an identifiable adult, obtained under circumstances a reasonable person would know were private, and disseminated when the person knew or should have known there was no consent. The statute's specific elements and exemptions prevent it from burdening substantially more speech than necessary to protect citizen privacy.
Dissenting - Justice Garman
Yes, section 11-23.5(b) violates the First Amendment. The statute is a content-based restriction on speech because its applicability depends entirely on the content of the image—whether it is a 'private sexual image.' Therefore, it must be analyzed under strict scrutiny, not intermediate scrutiny. The statute fails this test because it is not narrowly tailored; it lacks a required intent to harm, harass, or coerce, unlike similar statutes in many other states, making it overly broad and capable of criminalizing innocent conduct. Furthermore, the statute is not the least restrictive means to achieve the state's interest, as less restrictive civil remedies, such as a private right of action for damages or an injunction, were available alternatives to criminalization.
Analysis:
This decision validates Illinois's 'revenge porn' statute and provides a significant analytical framework for upholding similar laws against First Amendment challenges. By applying intermediate scrutiny rather than strict scrutiny, the court lowers the constitutional bar for states seeking to regulate this type of harmful speech. The ruling distinguishes between speech on matters of public concern and purely private matters, reinforcing the principle that the latter receives less constitutional protection. This case highlights a key judicial split on whether these laws are content-based (requiring strict scrutiny) or content-neutral regulations of conduct (requiring intermediate scrutiny), and its reasoning will likely influence future litigation over the regulation of online harassment and privacy invasions.
