People v. Austin: Is Revenge Porn Constitutionally Protected Speech?

People v. Austin, No. 123910, 2019 WL 1870855 (Ill. Oct 18, 2019).

On October 18, 2019, the Supreme Court of the State of Illinois decided that prohibiting the nonconsensual dissemination of private sexual images does not unconstitutionally restrict freedom of speech, upholding Illinois’ “revenge porn” statute, 720 ILCS 5/11-23.5(b) (West 2016) (“Section 11-23.5(b)”).

In the case, defendant Bethany Austin discovered a text exchange between her then-fiancé and a neighbor with whom he was having an affair. Their texts, which included nude photographs, automatically appeared on Austin’s iPad as a result of its connection to the couple’s shared iCloud account. In response, Austin sent a letter to her fiancé’s family and friends detailing the events. She attached copies of the messages, including four nude photographs of the neighbor.

The State charged Austin with violating Section 11-23.5(b), which forbids the nonconsensual dissemination of private sexual images. The circuit court, acting on Austin’s motion, dismissed the charge on the grounds that the provision violated her right to free speech. The State filed an appeal arguing for its right to regulate such speech to protect individual privacy and claimed that the dissemination of sexual images is not protected by the First Amendment. In a 5 to 2 vote the Supreme Court of Illinois reversed and remanded for further proceedings.

The court refused to recognize a new categorical exception to the First Amendment until the U.S. Supreme Court analyzed the issue. Regardless, the court found that the statute did not pose a severe threat to free speech. In the court’s view, the statute is content neutral because it targets the dissemination of sexual images on the basis of their nonconsensual procurement, rather than on the basis of the nudity depicted. Moreover, the court stated that the speech was not a matter of public concern, as it pertained only to the private sexual activities of the victim. This led the court to conclude that the statute did not trigger any more than intermediate scrutiny.

Within this context, the court found that the statute serves a substantial government interest unrelated to the suppression of speech: the protection of privacy rights. The court concluded that the statute did not burden more speech than necessary, since it restricted its application to detailed and specific circumstances.

Austin argued that Section 11-23.5 failed strict scrutiny, since penal regulation was not the least restrictive means to accomplish the government interest. While the court held that strict scrutiny was not applicable in this case, it emphasized that neither copyright law nor privacy tort law could successfully remove or deter revenge-porn images.

The court also determined that the breadth of the statute was effectively limited by the five elements and conditions that define the criminalized conduct. Given these conditions, the court further concluded that the statute provided fair warning in a sufficient manner to avoid prosecution.

In dissent, Justice Garman, joined by Justice Theis, argued that strict scrutiny was applicable because Section 11-23.5 criminalized the dissemination of images based on their content (a nude photograph). In Garman’s view, the statute was not narrowly tailored since it offered no rigorous intent element. Furthermore, she argued that in sentencing violators to a possible term of three years, the statute failed to provide the least restrictive means of dealing with revenge porn.

Revenge porn disproportionately impacts women and might produce similar psychological effects to those of sexual assault on the victims. The refusal of courts to exclude revenge porn from First Amendment law has been viewed by some scholars as a failure to properly weigh its harmful consequences. However, in this case, the court upheld one of the few statutes in the U.S. that does not require some form of malicious purpose, such as the intent to harass, intimidate, humiliate or coerce. The Illinois statute was inspired by model legislation developed by Law Professor Mary Ann Franks, who argues that limiting revenge porn to acts intended to harm or harass seriously misconstrues the devastating effects produced by this conduct.

The court upheld the statute noting that, regardless of the perpetrators’ motive (“profit, notoriety, entertainment, or for no specific reason at all”), what is fundamentally wrong with revenge porn is that it exposes a person’s body against their will, therefore stressing that a wrongful purpose is “inherent in the act of disseminating an intensely personal image without the consent of the person portrayed.”

Austin’s attorney stated that his client is considering appealing the case to the U.S. Supreme Court.

Miguel Casillas is an LLM student interested in constitutional law and technology at Harvard Law School.