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


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  • icon
    That One Guy (profile), 22 Oct 2019 @ 11:30am

    Working backwards from the desired result

    With the twisting they did to avoid admitting that yes, it is a content based law, and therefore yes, the first amendment does apply this strikes me as yet another case where the outcome was determined first, and then they went about finding justifications for it.

    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.

    Show someone a dick-pic that someone sends you without your previous request or desire? Congrats, you just committed a felony! I'm sure the losers who think that sort of thing is 'sexy' or 'funny' will positively love this new law after a ruling like that.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 22 Oct 2019 @ 12:04pm

    I wonder...

    How will this affect news/the press?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 2:00pm

    So what's next

    Can this be appealed to a federal court?

    reply to this | link to this | view in chronology ]

    • icon
      Hugo S Cunningham (profile), 22 Oct 2019 @ 4:34pm

      Re: So what's next

      Yes, though I am doubtful whether the Federal court would be interested.

      Unless you are a complete moron, it should be obvious that you do not transmit a sexual picture of an identifiable private person without their consent.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 22 Oct 2019 @ 6:55pm

        Re: Re: So what's next

        Just because something is a stupid/sleazy move does not mean it should be an illegal action, and when it comes to free speech matters the bar is set pretty high and needs to be considered very carefully, which the court flat out did not do, as evidenced by the hypothetical brought up near the end where they confirmed that the recipient of an unwanted, un-asked for sexual pic would be committing a felony should they show said pic to someone else(say to provide evidence to someone else to avoid the sender by showing how they act).

        reply to this | link to this | view in chronology ]

        • icon
          Wendy Cockcroft (profile), 23 Oct 2019 @ 6:07am

          Re: Re: Re: So what's next

          I believe the most stupid thing you can ever do is consent to such pictures being taken. ALWAYS assume that any kind of picture at all will be shared with the world and his dog. If it's innocuous (like my talented colleague's pumpkin carving), no harm, no foul if it gets out. If it's deeply personal and private (parts), it can cause a great deal of distress and embarrassment if it gets out.

          Don't take or allow such pictures to be taken. Why is this difficult?

          reply to this | link to this | view in chronology ]

          • icon
            Hugo S Cunningham (profile), 23 Oct 2019 @ 9:30am

            Re: Re: Re: Re: So what's next

            Like you, I never had the slightest interest in such pictures.

            Nevertheless
            (1) In many cases, the plaintiff never consented to the picture, or didn't even know about it.
            (2) For a certain minority of people, taking such pictures provides an erotic thrill, like some other sexual practices best not discussed in public. The safety they felt in marriage should not end just because the marriage does.
            (3) Unsolicited sexting is far less defensible (though I do not think teenage sexters should draw severe jail sentences and lifetime on a Sex Offender Registry as auto-child-pornographers). Nevertheless, as a remedy I would recommend, rather than Internet publication, telling them to stop, backed by a threat to go to the authorities.

            reply to this | link to this | view in chronology ]

            • icon
              Wendy Cockcroft (profile), 24 Oct 2019 @ 3:25am

              Re: Re: Re: Re: Re: So what's next

              (1) Indefensible, and a form of harassment. Not okay, not even for a media outlet. I've got a lot of sympathy for people unwittingly filmed in intimate situations. What a creepy thing to do to someone!
              (2) Yeah... some thrills aren't worth it. If my hubby started asking me to agree to such pictures, the answer would be a very firm no, not because I'd suspect him of nefarious intent, but because I'd worry about keeping them private. Rule of thumb: if you think it's hidden, someone will find it, the IOT being what it is. Anything that can gain access to your photos can gain access to the ones you don't want going public.
              (3) Unsolicited sexting is far less defensible (though I do not think teenage sexters should draw severe jail sentences and lifetime on a Sex Offender Registry as auto-child-pornographers). Nevertheless, as a remedy I would recommend, rather than Internet publication, telling them to stop, backed by a threat to go to the authorities.

              Teens can be thoughtless and inconsiderate, and just not realise the consequences of their actions. As a remedy, I'd show them the kind of creepy old perverts who seek out such images, and ask them if they want that kind of person to see them. I'd warn girls in particular to be aware that the moment the photo is taken, it will most likely go viral. We should actually teach this in schools. Teens should be taught not to pressure each other into situations that will almost certainly come back to bite them later. Merely telling them to stand up for themselves is not enough; we need to teach boundaries. In a social environment in which conformity is battered into them on a daily basis, good luck with that. I suppose I can still hope.

              reply to this | link to this | view in chronology ]

              • icon
                nasch (profile), 24 Oct 2019 @ 6:32am

                Re: Re: Re: Re: Re: Re: So what's next

                Rule of thumb: if you think it's hidden, someone will find it, the IOT being what it is.

                Don't take nudes with a phone unless you're a supernerd and you know you have it locked down somehow that prevents anything getting uploaded. If you take a photo or video with a camera, and then put it on your computer in encrypted storage and delete it from the camera, you can be pretty safe that no one will ever see it.

                The other aspect is trickier. I imagine you are highly confident that 1) you are not going to get divorced and 2) your husband would not betray you in this way even if you did. You're probably right, but I bet most of the people who get divorced were sure they were not going to get divorced. And obviously if they thought their spouse was someone who would maliciously spread around nudes of them, they wouldn't have married them. Yet there are some ex spouses who do just that. Either some people change when going through a divorce, or sometimes we're just not that good at predicting others' behavior.

                reply to this | link to this | view in chronology ]

                • icon
                  Wendy Cockcroft (profile), 24 Oct 2019 @ 7:23am

                  Re: Re: Re: Re: Re: Re: Re: So what's next

                  Don't take nudes with a phone unless you're a supernerd and you know you have it locked down somehow that prevents anything getting uploaded. If you take a photo or video with a camera, and then put it on your computer in encrypted storage and delete it from the camera, you can be pretty safe that no one will ever see it.

                  Taking care and thought for one's actions tends to kill the thrill. tl:dr; don't be dumb.

                  The other aspect is trickier. I imagine you are highly confident that 1) you are not going to get divorced and 2) your husband would not betray you in this way even if you did. You're probably right, but I bet most of the people who get divorced were sure they were not going to get divorced. And obviously if they thought their spouse was someone who would maliciously spread around nudes of them, they wouldn't have married them. Yet there are some ex spouses who do just that. Either some people change when going through a divorce, or sometimes we're just not that good at predicting others' behavior.

                  True, dat. Better to be safe than sorry. I'd also add that even the self-actualised exhibitionist types who would pooh pooh our caution would be horrified if their intimate pics were viewed and commented on by the dirty raincoat brigade. They suddenly get all coy when they realised that their attitudes aren't necessarily shared by others. Is it bad that I find this hilarious?

                  reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Oct 2019 @ 5:05pm

    Illinois Supreme Court, "First Amendment? Never heard of it."

    reply to this | link to this | view in chronology ]

  • identicon
    IL, 22 Oct 2019 @ 9:10pm

    This doesn't bother me and I could see it being an extension of obscenity law.

    Communications can become obscene based on the audience under supreme court precedent still.

    reply to this | link to this | view in chronology ]

    • identicon
      IL, 23 Oct 2019 @ 2:13am

      Re:

      I looked the the whole thing.

      First, they said this was a "purely private matter" but publicly breaking someone else's relationship isn't a private matter. Additionally protecting your own public reputation is a public matter so that seems wrong.

      Second they said it is content neutral but it is not. As it clearly targets a specific type of content.

      Third interstate commerce and speech seems like it may be unlawfully burdened by different states having different speech being legal so I wouldn't be surprised if it gets preempted by an act of congress or reversed at the supreme court. Speech being legal in one state but illegal in another state is not what was intended by the first and fourteenth amendment.

      The dissent is closer to what I know about what the US Supreme Court has ruled in the past so I can only say it's about par for the course for Illinois. I don't willingly subject myself to Illinois law because they really are awful about some things but I find myself not having a choice recently due to circumstances.

      Par for the course for a state that is known for 2 things, Lincoln and corrupt and inept government I suppose.

      reply to this | link to this | view in chronology ]

  • identicon
    DocGerbil100, 22 Oct 2019 @ 10:12pm

    Questions

    Hi, all. :)

    I think revenge porn is a Bad Thing. I have no strong views on what US laws should look like in regard to it, since it's neither my country, nor my legal system - I'm a Brit, not someone who has to live with their consequences. I do have some basic questions, though, so perhaps TechDirt or it's thoughtful commenters can enlighten me...

    I've read TD for ages and readily understand the objections to badly-crafted laws, such as this one, which can cause unwanted collateral damage far too easily. All the same, I'd very much appreciate clarification from - and of - the perspective of American citizens and journalists:-

    • Is the main objection that these types of law are badly made; or is it more that speech should always be considered inherently more important than the privacy rights of revenge porn victims?

    • If it's the latter, isn't that a bit extreme, as political positions go?

    • If it's the former, why is this such a difficult thing for US legislators to get right? It can't be that hard, surely? Unlike, say, copyright law, it certainly doesn't seem as if there's an army of vested interests motivated to sabotage intelligent legislation (although with the MPA and RIAA around, you never know), so what exactly is the problem? Are state legislatures really so full of idiots that none of them can devise something useful?

    • If the answer's "idiots", I'd ask why, except some of you elected a demented orange dinosaur as your President and some of us elected Prime Minister BoJo the Muppet, a man so absurdly foolish that it's anybody's guess if he could win a battle of wits against a bucket of warm, soapy chicken wings.
    :)


    A more-optional thing for general consideration...

    Were I tasked to create rules designed to protect personal privacy rights in sexually-explicit media, I would build it somewhat along the lines of the kinds of tests seen in other areas of jurisprudence:-

    ­-> Was the media created with the knowledge and consent of the subject (or subjects)?
    -> Did the subject have a reasonable expectation of relative privacy in the future storage and communication of that media?
    -> Has the media been communicated beyond the private circle (being those persons reasonably-expected to have access) without the subjects knowledge and consent?
    -> Has the communication been widespread, such as via a porn site?
    -> Was the communication intentional, on the part of the alleged infringer(s)?
    -> Was the communication malicious, or carried out with reckless disregard for the subjects privacy interests?
    -> Are the alleged infringer(s) without a reasonable purpose for their actions (such as limited interpersonal inquiries as to the legality or appropriateness of an image)?
    -> Are the alleged infringer(s) without a reasonable claim of legitimate public interest (such as exposing a public figures infidelity), as opposed to public prurience?
    -> Has the media been effectively redacted to preserve the sexual modesty of the subject?

    A long set of questions, certainly, but any good formal regulation in the area needs to closely consider context, or so it seems to me. I would not think that any one of the above rules would trump the others, but rather that the more an enquiring party can answer 'yes', the more likely it is for a violation of privacy to have been committed, whether rising to any given level of civil or criminal liability being a matter for lawyers and judges.

    • Does the above seem like a thing that would work?

    • Would something along these lines seem likely to be compliant with the first amendment?

    • Is anything in this area likely to be compliant with the first amendment?

    If you've read this far, I sincerely thank you for your time.
    I'm much obliged to you for any honest answers. :D

    reply to this | link to this | view in chronology ]

    • identicon
      Once From Illinois, 22 Oct 2019 @ 10:42pm

      Re: Questions

      Is the main objection that these types of law are badly made; or is it more that speech should always be considered inherently more important than the privacy rights of revenge porn victims?

      Speech is given more legal weight than privacy in the United States but I actually would like to see more privacy rights introduced. Not all speech is "free speech" under the Constitution but most is.

      Bad laws are bad laws. Both are valid criticisms.

      Are state legislatures really so full of idiots that none of them can devise something useful?

      Sometimes legislatures are so full of idiots that they do nothing useful but not always.

      Would something along these lines seem likely to be compliant with the first amendment?

      In my view and understanding your list is not narrowly tailored enough to survive first amendment scrutiny but it may be a good starting place.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2019 @ 7:42am

      Re: Questions

      Speech IS ALWAYS inherently more important than privacy rights. We shouldn't trade it away just to spare a few people a little embarrassment.

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 23 Oct 2019 @ 7:49am

      Re: Questions

      why is this such a difficult thing for US legislators to get right?

      I think they just don't particularly care. They can now tell their voters they have Done Something, and if it later gets overturned in court, well no big deal. Maybe another opportunity to Do Something.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 23 Oct 2019 @ 12:16pm

      Re: Questions

      Is the main objection that these types of law are badly made; or is it more that speech should always be considered inherently more important than the privacy rights of revenge porn victims?

      It’s a bit complicated, but I’d say that it’s both, with a little clarification I’ll give in other answers. But essentially, the latter leads to the former.

      If it's the latter, isn't that a bit extreme, as political positions go?

      Not necessarily, because it’s not an entirely political position. It’s largely one based on U.S. laws.

      Based on extensive case law about freedom of speech as guaranteed by the First Amendment, speech is generally favored over most other interests (outside of certain exceptions that don’t apply here). That’s why, at a minimum, laws restricting speech based in part or in whole on content need to be narrowly tailored to accomplish a compelling government interest. In other words, there’s almost always a finger on the scales in favor of speech.

      Another part of the problem is whether the alleged victim may have waived any right to privacy in sending the photo. That creates a very grey area in law.

      That’s not to say that there is never a case where privacy rights trump freedom of speech, but that requires a narrowly tailored law. This leads us to the next question.

      If it's the former, why is this such a difficult thing for US legislators to get right? It can't be that hard, surely? Unlike, say, copyright law, it certainly doesn't seem as if there's an army of vested interests motivated to sabotage intelligent legislation (although with the MPA and RIAA around, you never know), so what exactly is the problem? Are state legislatures really so full of idiots that none of them can devise something useful?

      I can’t say for sure, but I believe there are multiple factors at play here.

      First, this is a bit of a (admittedly reasonable) moral panic, with lots of people demanding something be done ASAP. Legislators are essentially rushing to be seen as doing something, which means that they aren’t as careful about narrowly tailoring the law to reach constitutional muster or that it is actually likely to achieve its desired goals.

      Second, this is extremely difficult to do right. Under any sane interpretations (i.e. not this court’s), any revenge-porn law is going to be content-based. As such, it needs to survive strict scrutiny, which is extremely rare because the test is extremely strict. Even under intermediate scrutiny, the law still needs to be narrowly tailored, and that isn’t always easy, either. It’s especially hard when dealing with criminal laws, which many are. And that’s just the legal hurdles. From a principled standpoint, someone sharing an unsolicited dick pic to a limited group should not be considered revenge porn.

      Third, the more we add to the law to make it constitutional, the more hurdles that plaintiffs/prosecutors have to jump through to enforce it, and many legislators proposing these laws don’t want that.

      Fourth, many state legislators are, in fact, idiots. Dumb bills are extremely common is state legislatures.

      As for your proposal, it’s a good start, but I think another thing to keep in mind is whether the photo was solicited by the initial receiver(s). If it was unsolicited, I think it should receive less protection. As for whether it passes constitutional muster, IDK. IANAL. There is probably some way to achieve the desired ends without being unconstitutional, but it won’t be easy, and a lot of cases will probably slip through the cracks.

      reply to this | link to this | view in chronology ]

    • identicon
      DocGerbil100, 24 Oct 2019 @ 12:18am

      Re: Questions

      Once From Illinois, AC, Nasch and BHull242, thank you all very much.
      Much obliged. :)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2019 @ 4:12am

    (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.)

    If I deactivate my account, others can still use it to post pics and such? That doesn't seem right.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2019 @ 6:11am

    its a terrible ruling, but I wonder if it Can this be used against the third party doctrine to prevent sharing of private information.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2019 @ 7:21am

    Reading just the headline.

    I only got as far as "Illinois Supreme Court Says State's Revenge Porn Law" before I stopped reading. No disparagement about the topic or the author. It's just I started laughing.

    At that point, in my head, the statement got interpreted as something like a "mandatory production of revenge port" or a set of guidelines around revenge porn, sort of like copywrite or those towns that require owning a gun (you can google this yourself).

    Now I'll go read what the article is actually about.

    reply to this | link to this | view in chronology ]


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