THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellant, v. BETHANY AUSTIN, Appellee.
123910
Supreme Court of Illinois
October 18, 2019
2019 IL 123910
Appeal from the Circuit Court of McHenry County, the Hon. Joel D. Berg, Judge, presiding. Judgment Reversed. Cause remanded.
Kwame Raoul, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Garson S. Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.
Igor Bozic, of West Dundee, for appellee.
Maryanne C. Woo, M. Patrick Yingling, and Stephanie A. Gerstetter, of Reed Smith LLP, of Chicago, for amicus curiae Cyber Rights Initiative.
Chief Justice Karmeier and Justices Thomas, Kilbride, and Burke concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justice Theis.
OPINION
¶ 1 Defendant Bethany Austin was charged with violating
I. BACKGROUND
¶ 3 Defendant was engaged to be married to Matthew, after the two had dated for more than seven years. Defendant and Matthew lived together along with her three children. Defendant shared an iCloud account with Matthew, and all data sent to or from Matthew‘s iPhone went to their shared iCloud account, which was connected to defendant‘s iPad. As a result, all text messages sent by or to Matthew‘s iPhone automatically were received on defendant‘s iPad. Matthew was aware of this data sharing arrangement but took no action to disable it.
¶ 4 While Matthew and defendant were engaged and living together, text messages between Matthew and the victim, who was a neighbor, appeared on defendant‘s iPad. Some of the text messages included nude photographs of the victim. Both Matthew and the victim were aware that defendant had received the pictures and text messages on her iPad. Three days later, Matthew and the victim again exchanged several text messages. The victim inquired, “Is this where you don‘t want to message [because] of her?” Matthew responded, “no, I‘m fine. [S]omeone wants to sit and just keep watching want [sic] I‘m doing I really do not care. I don‘t know why someone would wanna put themselves through that.” The victim replied by texting, “I don‘t either. Soooooo baby ....”
¶ 5 Defendant and Matthew cancelled their wedding plans and subsequently broke up. Thereafter, Matthew began telling family and friends that their relationship had ended because defendant was crazy and no longer cooked or did household chores.
¶ 6 In response, defendant wrote a letter detailing her version of events. As support, she attached to the letter four of the naked pictures of the victim and copies of the text messages between the victim and Matthew. When Matthew‘s cousin received the letter along with the text messages and pictures, he informed Matthew.
¶ 7 Upon learning of the letter and its enclosures, Matthew contacted the police. The victim was interviewed during the ensuing investigation and stated that the pictures were private and
¶ 8 Defendant was charged by indictment with one count of nonconsensual dissemination of private sexual images.
¶ 9 The State opposed defendant‘s motion, arguing that the type of speech restricted by the statute is not constitutionally protected and that the statute is narrowly tailored to serve a compelling government interest.
¶ 10 The circuit court agreed with defendant that
II. ANALYSIS
¶ 12 Before this court, the State argues that the circuit court erred in finding
¶ 13 Defendant responds by contending that the circuit court correctly found the statute to be unconstitutional because it outlaws protected content-based speech in violation of the United States and Illinois Constitutions.
¶ 14 The issue of whether a statute is constitutional presents a question of law, which we review de novo. People v. Minnis, 2016 IL 119563, ¶ 21. All statutes are presumed to be constitutional, and the party challenging а statute‘s constitutionality bears the burden of clearly establishing its invalidity. Id. In addition, a court must construe a statute so as to uphold its constitutionality, if reasonably possible. Id.
¶ 15 To resolve this appeal, we must construe
A. The Necessity for the Law
¶ 17
¶ 18 The colloquial term “revenge porn” obscures the gist of the crime:
“In essence, the crux of the definition of revenge porn lies in the fact that the victim did not consent to its distribution—though the victim may have consented to its recording or may have taken the photo or video themselves. As a result, 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.” (Emphasis in original.) Christian Nisttáhuz, Fifty States of Gray: A Comparative Analysis of ‘Revenge-Porn’ Legislation Throughout the United States and Texas‘s Relationship Privacy Act, 50 Tex. Tech. L. Rev. 333, 337 (2018).
Indeed, the term “revenge porn,” though commonly used, is misleading in two respects. First, “revenge” connotes personal vengeance. However, perpetrators may be motivated by a desire for profit, notoriety, entertainment, or for no specific reason at all. The only common factor is that they act without the consent of the person depicted. Second, “porn” misleadingly suggests that visual depictions of nudity or sexual activity are inherently pornographic. Mary Anne Franks, “Revenge Porn” Reform: A View From the Front Lines, 69 Fla. L. Rev. 1251, 1257-58 (2017); see Diane Bustamante, Florida Joins the Fight Against Revenge Porn: Analysis of Florida‘s New Anti-Revenge Porn Law, 12 Fla. Int‘l. U. L. Rev. 357, 364 (2017).
¶ 19 This is a unique crime fueled by technology:
“We do not live in a world where thousands of websites are devoted to revealing private medical records, credit card numbers, or even love letters. By contrast, ‘revenge porn’ is featured in as many as 10,000 websites, in addition to being distributed without consent through social media, blogs, emails, and texts. There is a demand for private
nude photos that is unlike the demand for any other form of private information. While nonconsensual pornography is not a new phenomenon, its prevalenсe, reach, and impact have increased in recent years in part because technology and social media make it possible to ‘crowdsource’ abuse, as well as make it possible for unscrupulous individuals to profit from it. Dedicated ‘revenge porn’ sites and other forums openly solicit private intimate images and expose them to millions of viewers, while allowing the posters themselves to hide in the shadows.” Franks, supra, at 1260-61.
Because the nonconsensual dissemination of private sexual images “so often involves the Internet and social media, the public, law enforcement, and the judiciary sometimes struggle to understand the mechanics of the conduct and the devastation it can cause.” Citron & Franks, supra, at 347.
¶ 20 For example, in the course of its analysis, the circuit court speculated as follows:
“[W]hen a girlfriend texts a nude selfie to a third party—her boyfriend—she gives up all expectations of privacy in the images. And if she cannot reasonably expect that the image remain private, then didn‘t the act of sharing it in the first place demonstrate she never intended the image to remain private?” (Emphasis in original.)
Such postulating is refuted by reams of scholarship. Moreover, the above comments reflect a fundamental misunderstanding of the nature of such communications. Given the circuit court‘s factual starting point, the boyfriend to whom a nude selfie is sent is the second party to the private communication—not a third party. As a consequence, a girlfriend who transmits such a photo does not automatically relinquish “all expectations of privacy in the images,” as the circuit court hypothesized. Contrary to the circuit court‘s conclusion, 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.
¶ 21 Consent is contextual. “The consent to create and send a photo or the consent to be photographed by another is one act of consent that cannot be equated with consenting to distribute that photo to others outside of the private relationship ***.” Erica Souza, “For His Eyes Only“: Why Federal Legislation Is Needed to Combat Revenge Porn, 23 UCLA Women‘s L.J. 101, 109-10 (2016); see Citron & Franks, supra, at 354-56 (same). Accordingly, criminal liability here does not depend on “whether the image was initially obtained with the subject‘s consent; rather, it is the absence of consent to the image‘s distribution that renders the perpetrator in violation of the law.” Ava Schein, Note, When Sharing Is Not Caring: Creating an Effective Criminal Framework Free From Specific Intent Provisions to Better Achieve Justice for Victims of Revenge Pornography, 40 Cardozo L. Rev. 1953, 1955-56 (2019). The nonconsensual dissemination of private sexual images “is not wrong because nudity is shameful or because the act of recording sexual activity is inherently immoral. It is wrong because exposing a person‘s body against her will fundamentally deprives that person of her right to privacy.” Franks, supra, at 1260.
¶ 22 The breadth of the problem is staggering. Four percent of American Internet users “have either had intimate images posted online without their consent or have been threatened with this heinous act. *** [This] is a serious social problem that has a devastating impact on those victimized by it. The 4 percent of American internet users affected by it amounts to millions of individuals.” Carrie Goldberg & Adam Massey, State-Sanctioned Humiliation: Why New York Needs a Nonconsensual Pornography Law, 89 N.Y. St. B. Ass‘n J. 48, 50 (May 2017);
¶ 23 The overwhelming majority of state legislatures have enacted laws criminalizing the nonconsensual dissemination of private sexual images. In 2004, New Jersey was the first state to enact such a statute. Schein, supra, at 1973. By 2013, only Alaska and Texas followed suit. However, between 2013 and 2017, 36 additional states enacted criminal statutes, bringing the total to 39. See Franks, supra, at 1280-81. In 2015, Illinois enacted its statute (Pub. Act 98-1138, § 5 (eff. June 1, 2015) (enacting
B. The General Assembly‘s Solution
¶ 25 Against this historical and societal backdrop, we consider the terms of the statutory provision at issue.
“(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.”
720 ILCS 5/11-23.5(b) (West 2016) .
A person convicted under
C. Preliminary Findings
¶ 27 We observe that we cannot avoid addressing the constitutionality of
¶ 28 Additionally, the circuit court determined that
D. First Amendment
¶ 30 The first amendment, which applies to the states through the fourteenth amendment, provides that government “shall make no law *** abridging freedom of speech.”
¶ 31 The United States Supreme Court has held that the dissemination of information is speech within the meaning of the first amendment. Sorrell v. IMS Health, Inc., 564 U.S. 552, 570 (2011); see Bartnicki v. Vopper, 532 U.S. 514, 527 (2001). Accordingly, “[a]n individual‘s right to speak is implicated when information he or she possesses is subjected to ‘restraints on the way in which the information might be used or disseminated.‘” Sorrell, 564 U.S. at 568 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984)). Also, the Supreme Court has held that first amendment protections for speech extend fully to Internet communications. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (explaining that Supreme Court case law “provide[s] no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium“); Minnis, 2016 IL 119563, ¶ 23 (same). We also recognize that, “whatever the challenges of applying the Constitution to ever-advancing technology,” the basic first amendment principles of freedom of speech do not vary “when a new and different medium for communication appears.” Brown v. Entertainment Merchants Ass‘n, 564 U.S. 786, 790 (2011).
1. No Categorical Exception
¶ 33 In the case at bar, the State asks this court to recognize the nonconsensual dissemination of private sexual images as “a category of speech that has not been protected as a historical matter.” There are categories of speech that are “‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.‘” R.A.V., 505 U.S. at 383 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). These categories include incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent. United States v. Alvarez, 567 U.S. 709, 717 (2012) (collecting cases); Stevens, 559 U.S. at 468 (same). These categories of speech are well-defined and narrowly limited, and “‘the prevention and punishment of which have never been thought to raise any Constitutional problem.‘” Stevens, 559 U.S. at 468-69 (quoting Chaplinsky, 315 U.S. at 571-72). These categories are outside the area of constitutionally protected speech, and the protection of the first amendment does not extend to them. R.A.V., 505 U.S. at 383.
¶ 34 The United States Supreme Court has rejected a free-floating test for first amendment coverage that balances the relative social costs and benefits on an ad hoc basis. Rather, the Supreme Court has permitted content-based restrictions where confined to the few historic, traditional, and long-familiar categories of expression. Alvarez, 567 U.S. at 717; Stevens, 559 U.S. at 468, 470. The Supreme Court has observed: “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Stevens, 559 U.S. at 472. However, the above-listed categories of unprotected speech “have a historical foundation in the Court‘s free speech tradition.” Alvarez, 567 U.S. at 718.
¶ 35 In this case, the circuit court found that the targeted speech did not fit into any categorical first amendment exception. Before this court, the State argues that “state laws protecting individual privacy rights have long been established.” According to the State, “history supports the conclusion that States may regulate speech that invades privacy without violating the First Amendment.”
¶ 36 We decline the State‘s invitation to identify a new category of speech that falls outside of first amendment protection. The nonconsensual dissemination of private sexual images, prohibited by
¶ 37 Thus far, we have concluded that
¶ 39 The United States Supreme Court has long held “[c]ontent-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid.” Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004); see R.A.V., 505 U.S. at 382 (stating that content-based regulations are presumptively invalid); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47 (1986) (same). Generally, “laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Turner Broadcasting System, 512 U.S. at 643.
¶ 40 Accordingly, courts “apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Id. at 642. A content-based law is justified only if it survives strict scrutiny, which requires the government to demonstrate that the law is narrowly tailored to serve a compelling state interest. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). “The State must specifically identify an ‘actual problem’ in need of solving [citation], and the curtailment of free speech must be actually necessary to the solution [citation].” Brown, 564 U.S. at 799. In other words, if a lеss restrictive alternative would serve a governmental purpose, a legislature must use that alternative. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
¶ 41 In the case at bar, the circuit court found that
¶ 42 However, because this is a first amendment case, we, as a court of review, must decide independently “whether a given course of conduct falls on the near or far side of the line of constitutional protection.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567 (1995); see Boy Scouts of America v. Dale, 530 U.S. 640, 648-49 (2000). In any event, if the State arguably is considered to have conceded the applicability of strict scrutiny, “it is well established that we, as a court of review, are not bound by a party‘s concession.” People v. Carter, 2015 IL 117709, ¶ 22 (citing Beachem v. Walker, 231 Ill. 2d 51, 60-61 (2008)).
¶ 43 In contrast to content-based speech restrictions, “regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny [citation] because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, 512 U.S. at 642. We conclude that
a. Time, Place, and Manner
¶ 45 It is generally understood “that the First Amendment does not guarantee the right to communicate one‘s views at all times and places or in any manner that may be desired.”
¶ 46 Determining “whether a particular regulation is content based or content neutral is not always a simple task.” Turner Broadcasting System, 512 U.S. at 642. We recognize that
¶ 47 We find City of Renton instructive. That case involved the first amendment validity of a Renton, Washington, zoning regulation of adult movie theaters. The Supreme Court observed that the Renton ordinance “does not appear to fit neatly into either the ‘content-based’ or the ‘content-neutral’ category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters.” City of Renton, 475 U.S. at 47. Nevertheless, the Court concluded that the ordinance was “aimed not at the content of the films shown at ‘adult motion picture theatres,’ but rather at the secondary effects of such theaters on the surrounding community.” (Emphases in original.) Id. 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.” (Emphasis in original.) Id.
¶ 48 Further, in Turner Broadcasting System, the Court recognized that “[r]egulations that discriminate among mediа, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broadcasting System, 512 U.S. at 659. Nevertheless, the Court further instructed that “[i]t would be error to conclude, however, that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others.” Id. at 660. These cases instruct that the proper focus is on whether the government has addressed a category of speech to suppress discussion of that topic.
¶ 49 In the case at bar,
¶ 50
¶ 51 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).
b. Purely Private Matter
¶ 53 We conclude that
¶ 54 However, first amendment protections are less rigorous where matters of purely private significance are at issue:
“That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: ‘[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas‘; and the ‘threat of liability’ does not pose the risk of ‘a reaction of self-censorship’ on matters of public import.” Id. at 452 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985)).
“While such speech is not totally unprotected by the First Amendment [citation], its protections are less stringent.” Dun & Bradstreet, 472 U.S. at 760.
¶ 55 The Supreme Court has articulated some guiding factors:
“Speech deals with matters of public concern when it can bе fairly considered as relating to any matter of political, social, or other concern to the community [citation], or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public [citation]. [Citations.] The arguably inappropriate or controversial character of a statement is irrelevant to the question
whether it deals with a matter of public concern.” (Internal quotation marks omitted.) Snyder, 562 U.S. at 453.
Deciding whether speech is of public or private concern requires an examination of the content, form, and context of that speech, as revealed by the entire record. Id. “In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Id. at 454.
¶ 56 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. Matthew was telling his and defendant‘s families and friends that it was defendant‘s fault that their relationship ended. Defendant responded with a letter, in which she explained her version of events. To this letter defendant attached the victim‘s private sexual images along with text messages between the victim and Matthew. The victim‘s private sexual images, in context with her and Matthew‘s text messages, were never in the public domain. They do not relate to any broad issue of interest to society at large. The message they convey is not a matter of public import. Cf. id. (holding that messages on protest signs at a private funeral related to broad issues of interest to society at large and were matters of public import). Rather, the public has no legitimate interest in the private sexual activities of the victim or in the embarrassing facts revealed about her life. See United States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (nonconsensual dissemination of a victim‘s private nude photos “may be proscribed consistent with the First Amendment“).
¶ 57 In sum,
3. Applying Intermediate Scrutiny
¶ 59 In the context of the first amendment‘s guaranty of freedom of speech, intermediate scrutiny is variously described in similar forms. Generally, to survive intermediate scrutiny, the law must serve an important or substantial governmental interest unrelated to the suppression of free speech and must not burden substantially more speech than necessary to further that interest or, in other words, must be narrowly tailored to serve that interest without unnecessarily interfering with first amendment freedoms, which include allowing reasonable alternative avenues of communication. See id. at 662; Ward, 491 U.S. at 791; City of Renton, 475 U.S. at 50; Heffron, 452 U.S. at 647-48; Minnis, 2016 IL 119563, ¶ 36; People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 121 (2001).
¶ 60 Accordingly, in the context of the first amendment, fit matters. Even when the Supreme Court is not applying strict scrutiny, the Court still requires a fit that is not necessarily perfect but reasonable, a fit that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served, a fit that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective. McCutcheon v. Federal Election Comm‘n, 572 U.S. 185, 134 S. Ct. 1434, 1456-57 (2014).
¶ 61 In the case at bar, we conclude that
¶ 62 It is well established that government can protect individual privacy rights. In their influential 1890 law review article, future Supreme Court Justice Louis Brandeis and his coauthor argued for recognition of a distinct right to privacy. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). Reviewing various developments in the common law, the article described one of the problems it sought to address:
“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the, individual what Judge Cooley calls the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that what is whispered in the closet shall be proclaimed from the house-tops. For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons ***.” (Internal quotation marks omitted.) Id. at 195.
Reviewing case law, the article explained that then-existing causes of action, such as breach of trust and property-based claims, had long been used to protect privacy interests. However, those actions had become inadequate to protect individual privacy in a changing world. Id. at 211. The article explained that the right to privacy does not prohibit publication of matters of public interest. As an example, the article argued that publishing that a private individual has a speech impediment or cannot spell may be proscribed, but publishing the same characteristics of a congressional candidate could not. Id. at 214-15.
¶ 63 Today, “the existence of a right of privacy is now recognized in the great majority of the American jurisdictions that have considered the question.” Restatement (Second) of Torts § 652A cmt. a, at 377 (1977). “As it has developed in the courts, the invasion of the right of privacy has been a complex of four distinct wrongs, whose only relation to one another is that each involves interference with the interest of the individual in leading, to some reasonable extent, a secluded and private life ***.” Id. cmt. b, at 377. Relevant here is the tort of public disclosure of private facts. Id. § 652D. To state a cause of action, the plaintiff must prove that (1) the defendant gave publicity (2) to the plaintiff‘s private and not public life (3) and that the matter made public was highly offensive and (4) not of legitimate public concern. Doe v. TCF Bank Illinois, FSB, 302 Ill. App. 3d 839, 841 (1999); see Restatement (Second) of Torts § 652D cmt. d (1977); Prosser and Keeton on the Law of Torts § 117, at 856-57 (W. Page Keeton et al. eds., 5th ed. 1984). With their longstanding historical pedigree, invasion of privacy torts broadly developed across the country, without any established first amendment limitations, to protect the privacy of nonpublic figures with respect to matters of only private interest. See VanBuren, 2018 VT 95, ¶ 43. Thus,
¶ 65 These Supreme Court decisions reflect three consistent themes. First, speech on matters of private concern that invades the privacy interests of nonpublic figures does not enjoy the same degree of first amendment protection as speech on matters of public concern or relating to public figures. Second, state laws protecting individual privacy rights are long established and are not necessarily subordinate to first amendment free speech protections. Third, the Court is wary of broad rules or categorical holdings framing the relationship between laws protecting individual privacy and the first amendment. See VanBuren, 2018 VT 95, ¶ 38.
¶ 66 Specifically, the nonconsensual dissemination of private sexual images causes unique and significant harm to victims in several respects. Initially, this crime can engender domestic violence. Perpetrators threaten disclosure to prevent victims from ending relationships, reporting abuse, or obtaining custody of children. Sex traffickers and pimps threaten disclosure to trap unwilling individuals in the sex trade. Rapists record their sexual assaults to humiliate victims and deter them from reporting the attacks. Schein, supra, at 1963; Franks, supra, at 1258; see Citron & Franks, supra, at 351.
¶ 67 Also, the victims’ private sexual images are disseminated with or in the context of identifying information. Victims are frequently harassed, solicited for sex, and even threatened with sexual assault (Schein, supra, at 1963-64; Franks, supra, at 1259; Citron & Franks, supra, at 353) and are fired from their jobs and lose future employment opportunities (Franks, supra, at 1259; Bustamante, supra, at 365-66; Citron & Franks, supra, at 352-53). Victims additionally suffer profound psychological harm. Victims often experience feelings of low self-esteem or worthlessness, anger, paranoia, depression, isolation, and thoughts of suicide. Schein, supra, at 1964; Bustamante, supra, at 366-67; see Citron & Franks, supra, at 350-51; Souza, supra, at 103 (“Beyond the obvious embarrassment suffered, victims are often threatened with bodily harm, fired from their jobs, or forced to change their names. Some have been driven to suicide.“).
¶ 68 Additionally, the nonconsensual dissemination of sexual images disproportionately affects women, who constitute 90% of the victims, while men are most commonly the perpetrators and consumers. Schein, supra, at 1961; Franks, supra, at 1259 (acknowledging that the crime affects both men and women but stating that “available evidence to date indicates that the majority of victims are women and girls“).
¶ 69 In a brief time span, 43 states and the District of Columbia have enacted laws prohibiting the nonconsensual dissemination of private sexual images. These widespread efforts demonstrate that government recognizes the plight of victims of this crime and their need for protection. See Nisttáhuz, supra, at 357. “No one can challenge a state‘s interest in protecting
¶ 70 We next consider whether
¶ 71 We conclude that the substantial government interest of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively absent
¶ 72 Defendant‘s contention overlooks the fundamental difference between civil and criminal law. “The civil action for a tort *** is commenced and maintained by the injured person, and its primary purpose is to compensate for the damаge suffered at the expense of the wrongdoer.” Prosser and Keeton on the Law of Torts § 2, at 7 (W. Page Keeton et al. eds., 5th ed. 1984). The distinction between a tort and a crime “lies in the interests affected and the remedy afforded by the law.” Id. “The criminal law is concerned with the protection of interests common to the public at large, as they are represented by the entity which we call the state; often it accomplishes its ends by exacting a penalty from the wrongdoer.” Id. § 1, at 5.
¶ 73 Civil actions are inadequate. “[M]any civil remedies are not only insufficient or unrealistic, but also counterintuitive in terms of their supposed redress or the harm victims suffer.” Bustamante, supra, at 368. Scholars have explained as follows:
“Civil suits based on privacy violations are problematic. Most victims want the offensive material removed and civil suits almost never succeed in removing the images due to the sheer magnitude of dissemination. Highly publicized trials often end in re-victimization. Civil litigation is expensive and time-consuming, and many victims
simply cannot afford it. It is difficult to identify and prove who the perpetrator is for legal proceedings because it is so easy to anonymously post and distribute revenge porn. Even when victims can prove who the perpetrator is in court and win money damages, many defendants are judgment-proof so victims cannot collect. ***
Further, a court order requiring a defendant or website to remove the images would fail to remove the images from the web entirely, particularly as they appear on numerous sites. Because most perpetrators are judgment-proof, and injunctive relief may be difficult to obtain and would ultimately fail to remove the images, civil suits are poor remedies. As perpetrators frequently have nothing to lose, which is why they engage in this behavior in the first placе, civil suits do not deter revenge porn.” (Internal quotation marks omitted.) Kitchen, supra, at 251-53.
Accord Souza, supra, at 111-15; Citron & Franks, supra, at 357-59.
¶ 74 Additionally, copyright law might appear to be a viable option for victims to remove nonconsensual private sexual images from the Internet. If the victim created such an image herself, then she is considered the copyright owner and would be entitled to protection under federal copyright law. Such copyright infringement protection could result in the removal of such images from a website. Souza, supra, at 115.
¶ 75 However, registering the copyright
“requires the victim to be exposed all over again—this time to the government. So, ironically, to copyright an image and stop strangers from seeing their nude pictures, victims have to send more pictures of their naked body to more strangers (the individuals at the U.S. Copyright Office). Though a successful registration can effectuate a takedown from the identified website, the registered images are sent to the copyright office and appear in the Library of Congress’ public catalog alongside copyright owners’ names and image descriptions. Though copyright law can provide help to victims who own the copyright of their images and are willing to register them, this avenue is not available to victims whose posted photographs or videos were created by others.” (Internal quotation marks omitted.) Id. at 115-16.
Accord Kitchen, supra, at 258-61; Citron & Franks, supra, at 359-60.
¶ 76 Criminalization is a vital deterrent. “As neither privacy torts nor copyright law successfully removes revenge porn images or deters it in the first instance, a more effective deterrent is necessary.” Kitchen, supra, at 261; see also Bustamante, supra, at 377-78 (same); Schein, supra, at 1972 (“It is not merely the insufficiency of other legal and adjudicatory means that merits its criminalization, but also the overtly non-consensual, sexual nature of revenge porn‘s core.“).
¶ 77 We next consider whether
¶ 78 Subsection (a) provides as follows:
“(a) Definitions. For the purposes of this Section:
‘Computer‘, ‘computer program‘, and ‘data’ have the meanings ascribed to them in
Section 17-0.5 of this Code .‘Image’ includes a photograph, film, videotape, digital recording, or other depiction or portrayal of an object, including a human body.
‘Intimate parts’ means the fully unclothed, partially unclothed or transparently clothed genitals, pubic area, anus, or if the person is female, a partially or fully exposed nipple, including exposure through transparent clothing.
‘Sexual act’ means sexual penetration, masturbation, or sexual activity.
‘Sexual activity’ means any:
(1) knowing touching or fondling by the victim or another person or animal, either directly or through clothing, of the sex organs, anus, or breast of the victim or another person or animal for the purpose of sexual gratification or arousal; or
(2) any transfer or transmission of semen upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or another; or
(3) an act of urination within a sexual context; or
(4) any bondage, fetter, or sadism masochism; or
(5) sadomasochism abuse in any sexual context.”
Id. § 11-23.5(a) .
Subsection (a) defines nonconsensual dissemination of private sexual images narrowly, including limiting the crime to a confined class of content.
¶ 79 Subsection (b), quoted earlier, states the elements of the offense. Subsection (b) is narrowly tailored in several respects so as not to burden more speech than necessary. First, the images must be “private sexual images” that portray any of sevеral specific features, including the depiction of a person whose intimate parts are exposed or visible, in whole or in part, or who is engaged in a sexual act as defined in the statute.
¶ 80 Second, the person portrayed in the image must be over the age of 18 and identifiable from the image or information displayed in connection with the image.
¶ 81 Third, the image must have been obtained under circumstances in which a reasonable person would know or understand that it was to remain private.
¶ 82 Fourth, the person who disseminates such an image must have known or should have known that the person portrayed in the image has not consented to the dissemination.
¶ 83 Fifth, the statute specifically requires that the dissemination of private sexual images be intentional.
¶ 84
“(c) The following activities are exempt from the provisions of this Section:
(1) The intentional dissemination of an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed when the dissemination is for the purpose of a criminal investigation that is otherwise lawful.
(2) The intentional dissemination of an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed when the dissemination is made for the purpose of, or in connection with, the reporting of unlawful conduct.
(3) The intentional dissemination of an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed when the images involve voluntary exposure in public or commercial settings.
(4) The intentional dissemination of an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed when the dissemination serves a lawful public purpose.”
Id. § 11-23.5(c) .
These exemptions shield from criminal liability any dissemination of a private sexual image that advances the collective goals of ensuring a well-ordered system of justice and protecting society as a whole. In addition, subsection (c)(3) recognizes that public disclosure has been sanctioned based on the very nature of such an image. Finally, the statute does not apply to electronic communication companies that provide access to the Internet, public mobile services, or private radio services.
¶ 85 Based on the statutory terms set forth above,
¶ 86 Also, we observe that reasonable avenues of communication remain. As the United States Supreme Court has “emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the
“does not come close to shutting down the vast number of ways in which people may vent their anger and aggression. The Internet has provided innumerable opportunities for aggressive and offensive interactions, and the First Amendment largely protects those opportunities. The First Amendment does not, however, protect the unauthorized distribution of personal, private, and intimate images unrelated to any public interest.” Id. at 1326-27.
In this case, defendant makes no argument that her speech would have been in any way stifled by not attaching the victim‘s private sexual images to her letter. We hold that
E. First Amendment Overbreadth
¶ 88 We have concluded that
¶ 89 The first amendment overbreadth doctrine looks not at whether a law improperly regulates speech based on viewpoint or content but at the appropriate scope of the regulation. See Osborne v. Ohio, 495 U.S. 103, 112 (1990) (recognizing that, where a statute regulates expressive conduct, it may be found to be unconstitutionally overbroad if it “criminalizes an intolerable range of constitutionally protected conduct“). Generally, a defendant seeking to assert a facial challenge would be required to establish that there is no set of circumstances under which the statute would be valid. Minnis, 2016 IL 119563, ¶ 24. However, the overbreadth doctrine permits a party to challenge a statute as a facial violation of the first amendment, even if that party‘s conduct would not fall within the amendment‘s protection. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); see also People v. Relerford, 2017 IL 121094, ¶ 50; Minnis, 2016 IL 119563, ¶¶ 14, 24. A facial challenge based on first amendment overbreadth is permitted out of concern that the threat of enforcement of an overbroad law may chill or deter constitutionally protected speech, particularly where the statute imposes criminal penalties. Virginia v. Hicks, 539 U.S. 113, 119 (2003); see also Minnis, 2016 IL 119563, ¶ 24; People v. Melongo, 2014 IL 114852, ¶ 24.
¶ 90 Under the first amendment‘s overbreadth doctrine, “a statute is facially invalid if it prohibits a substantial amount of protected speech.” United States v. Williams, 553 U.S. 285, 292 (2008); see also Relerford, 2017 IL 121094, ¶ 50 (citing Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)). The doctrine operates to balance two competing social costs—the chilling effect on constitutionally protected speech against the invalidation of a law that is entirely constitutional in some of its applications. Williams, 553 U.S. at 292 (citing Hicks, 539 U.S. at 119-20). In order to be unconstitutional, the overbreadth must be ”substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep.” (Emphasis omitted.) Id. at 292-93 (citing Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 485 (1989), and Broadrick, 413 U.S. at 615); see also Stevens, 559 U.S. at 473.
¶ 91 Because the invalidation of a statute on overbreadth grounds is “strong medicine,” it is to be applied “only as a last resort” and where the statute is not subject to a limiting construction. Broadrick, 413 U.S. at 613; see also Relerford, 2017 IL 121094, ¶ 51. If a statute is “‘readily susceptible‘” to a narrowing construction that will eliminate its substantial overbreadth, the statute must be upheld. Virginia v. American Booksellers Ass‘n, Inc., 484 U.S. 383, 397 (1988) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)); see also Hicks, 539 U.S. at 118-19.
¶ 92 To resolve defendant‘s overbreadth argument, we must determine whether
¶ 93 In light of these detailed restrictions that serve to confine the sphere of proscribed conduct, we conclude that
¶ 94 Despite the fact that the statute includes the several narrowing factors previously discussed, defendant argues that the circuit court correctly determined that
¶ 95 First, the circuit court stated that, because the statutory definition of “sexual activity” includes acts of “any bondage” or “fetter,”
¶ 96 We similarly reject the circuit court‘s suggestion that
¶ 97 The circuit court also questioned whether
¶ 98 And, even if the publication of Wyeth‘s secret Helga collection would fall within the statute‘s purview, such a situation is rare and should be addressed on a case-by-case basis. See Ferber, 458 U.S. at 773-74 (holding that impermissible applications of a statute that do not amount to more than a small fraction of the materials within the statute‘s reach should be cured through case-by-case analysis); see also Broadrick, 413 U.S. at 615-16; People v. Anderson, 148 Ill. 2d 15, 26-27 (1992).
¶ 99 The animating purpose of
¶ 100 In concluding that the statute is overbroad, the circuit court also referenced the fact that
¶ 101 Initially, we observe that
¶ 102 Instead, the circuit court‘s criticism refers to the fact that the statute dоes not require proof of an illicit motive or malicious purpose. The circuit court did not, however, cite legal authority for the proposition that a criminal statute necessarily must contain an illicit motive or malicious purpose to survive an overbreadth challenge. In addition, we observe that the motive underlying an intentional and unauthorized dissemination of a private sexual image has no bearing on the resulting harm suffered by the victim. A victim whose image has been disseminated without consent suffers the same privacy violation and negative consequences of exposure, regardless of the disseminator‘s objective. Therefore, the question of the disseminator‘s motive or purpose is divorced from the legislative goal of protecting the privacy of Illinois citizens. The explicit inclusion of an illicit motive or malicious purpose would not advance the substantial governmental interest of protecting individual privacy rights, nor would it significantly restrict its reach.
¶ 103 We recognize that most state laws prohibiting the nonconsensual dissemination of private sexual images expressly require some form of malicious purpose or illicit motive as a distinct element of the offense. Of course, the exact statutory language establishing this element varies. Most of these states provide elaborate descriptions of malice, such as “the intent to harass, intimidate, threaten, humiliate, embarrass, or coerce” (
(West 2019);
¶ 104 In contrast, the legislatures of four states, including our General Assembly, have chosen not to expressly include “malice” as a distinct element of the offense.
¶ 105 We conclude that, although a malicious purpose is not exрressly mandated, the breadth of
¶ 106 Given this broad compendium of exacting elements and conditions necessary to prove a violation of
¶ 107 In addition, as we have already explained, the express requirement that the dissemination be intentional severely limits the likelihood that a person will violate the statute inadvertently or accidentally. Such unusual situations do not demonstrate substantial overbreadth and should be addressed on a case-by-case basis. See New York State Club Ass‘n, Inc. v. City of New York, 487 U.S. 1, 14 (1988); see also Ferber, 458 U.S. at 773-74; Broadrick, 413 U.S. at 615-16.
¶ 108 The circuit court further observed that
¶ 109 In evaluating the competing social costs at stake, we have held that Illinois has a substantial governmental interest in protecting the privacy of persons who have not consented to the dissemination of their private sexual images. Although defendant claims that
F. Constitutional Vagueness
¶ 111 Defendant also argues that
¶ 112 A vagueness claim based on due process is analytically distinct from a first amendment overbreadth claim and does not depend upon whether a law applies to a substantial amount of protected speech. Holder, 561 U.S. at 19-20. A facial challenge to a statute that is premised on due process vagueness grounds can succeed “only if the enactment is impermissibly vague in all of its applications. A [litigant] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Village of Hoffman Estates, 455 U.S. at 494-95. “That rule makes no exception for conduct in the form of speech.” Holder, 561 U.S. at 20 (citing Parker v. Levy, 417 U.S. 733, 755-57 (1974)). Therefore, the determination of whether a statute is unconstitutionally vague must be decided
¶ 113 Defendant does not contend that
¶ 114 Initially, defendant contends that
¶ 115 In the absence of a statutory definition, courts presume that the words used in a statute have their ordinary and popularly understood meanings. Anderson, 148 Ill. 2d at 28. The term “disseminate” is defined as “to foster general knowledge of.” Webster‘s Third New International Dictionary 656 (1993). In addition, its synonyms include “BROADCAST,” “PUBLICIZE,” and “SPREAD.” Id. The same dictionary defines “spread” as “to make more widely known.” Id. at 2208. In this case, defendant sent a letter to at least one other person that included the private sexual images of the victim without her consent. That conduct unquestionably “foster[ed] general knowledge of” the victim‘s image and made it “more widely known.” Therefore, defendant‘s conduct clearly fell within the statutory proscription, and she cannot claim that it was vague for lack of notice as to her circumstances. See Holder, 561 U.S. at 20; Anderson, 148 Ill. 2d at 28. The fact that the statute may be vague as applied to the speech of othеrs is not relevant to the resolution of this appeal. See Holder, 561 U.S. at 20; Village of Hoffman Estates, 455 U.S. at 495; Anderson, 148 Ill. 2d at 28.
¶ 116 Defendant further objects that the statute carves out an exception for dissemination that serves a “lawful public purpose” but does not address what such a purpose might be. See
¶ 118 We are similarly unpersuaded by defendant‘s assertion that
¶ 119 As a final matter, we observe that
III. CONCLUSION
¶ 121 For the foregoing reasons, the judgment of the circuit court of McHenry County is reversed, and the cause is remanded to the circuit court for further proceedings.
Reversed.
Cause remanded.
JUSTICE GARMAN, dissenting:
¶ 125 Even though both parties agree a strict scrutiny analysis applies in this case, the majority concludes an intermediate level of scrutiny is the appropriate standard, finding
¶ 126 “‘[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.‘” United States v. Alvarez, 567 U.S. 709, 716 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)). “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, Arizona, 576 U.S. 155, 135 S. Ct. 2218, 2226 (2015); see also Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004) (noting the presumed invalidity of content-based restrictions on speech and the government‘s burden of showing their constitutionality); People v. Alexander, 204 Ill. 2d 472, 476 (2003) (stating content-based restrictions on speech must survive strict scrutiny, which “requires a court to find that the restriction is justified by a compelling government interest and is narrowly tailored to achieve that interest“). The restriction on “‘speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.‘” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997)).
¶ 127 Contrary to the majority‘s belief, the content of the image is precisely the focus of
¶ 128 The majority, however, contends
¶ 129 Assuming the State has a compelling interest in prohibiting nonconsensual dissemination of private sexual images, I would find the statute is not narrowly tailored to promote that interest. The majority cites the Vermont Supreme Court‘s decision in VanBuren, which involved Vermont‘s statute banning disclosure of nonconsensual pornography. The statute in that case made it a crime to “‘knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.‘” (Emphasis added.) State v. VanBuren, 2018 VT 95, ¶ 5 (quoting
“Section 2606 defines unlawful nonconsensual pornography narrowly, including limiting it to a confined class of content, a rigorous intent element that encompasses the nonconsent requirement, an objective requirement that the disclosure would cause a reasonable person harm, an express exclusion of images warranting greater constitutional protection, and a limitation to only those images that support the State‘s compelling interest because their disclosure would violate a reasonable expectation of privacy.” VanBuren, 2018 VT 95, ¶ 60.
¶ 131 Here, however,
¶ 132 The majority contends that, “although a malicious purpose is not expressly mandated, the breadth of
¶ 133 The Vermont statute also limited a violation to when the disclosure would cause a reasonable person to suffer harm, and it defines “harm” as “physical injury, financial injury, or serious emotional distress.”
¶ 134 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.
¶ 135 The statute also does not provide the least restrictive means of dealing with the problem. See Playboy, 529 U.S. at 813 (stating that, “[i]f a less restrictive alternative would serve the Government‘s purpose, the legislature must use that alternative“); Kusper v. Pontikes, 414 U.S. 51, 59 (1973) (“If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.“). The legislature could provide for a private right of action against an offender. It could also provide avenues of equitable relief, including temporary restraining orders, preliminary injunctions, or permanent injunctions. See, e.g.,
¶ 136 The majority concludes “[c]ivil actions are inadequate” and cites law review articles in support (supra ¶¶ 73-76), but we should “not assume plausible alternatives will fail to protect compelling interests; there must be some basis in the record, in legislative findings or otherwise, establishing the law enacted as the least restrictive means.” Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Comm‘n, 518 U.S. 727, 807 (1996) (Kennedy, J., concurring in part and dissenting in part, joined by Ginsburg, J.); see also Sable Communications of California, Inc. v. Federal Communications Comm‘n, 492 U.S. 115, 128-30 (1989) (noting “the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government‘s interest in protecting minors“). Moreover, “it is the Government‘s obligation to prove that the alternative will be ineffective to achieve its goals” (Playboy, 529 U.S. at 816), and the State has not done so here.
¶ 137 Laws burdening speech based on its content are subjected to “the most exacting scrutiny.” Turner Broadcasting System, 512 U.S. at 642; People v. Jones, 188 Ill. 2d 352, 358 (1999). Here, the statute cannot withstand strict scrutiny, as it is not narrowly tailored to serve the State‘s interests and less restrictive alternatives are available. Thus, I would find the statute unconstitutional and affirm the circuit court‘s judgment.
¶ 138 JUSTICE THEIS joins in this dissent.