In
Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue,
720 ILCS 5/11-23.5(b), states:
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.
The Court's opinion has resulted in criticism from
some commentators, and praise from
others. While some of the criticism is correct, the
Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the
Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent.
I. Summary of the Opinion
In
Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.
The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.
The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech. ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.
While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest." ¶59.
The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny. ¶49.
Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern. The
Austin Court noted that the Supreme Court in
Snyder v. Phelps and
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.
The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."
II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny
The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited.
While this is correct, the fact remains that the illegality of sharing the sexual image
is also premised on the
content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett
correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites
R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender."
R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category.
Id. at pp. 392, 396.
The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.
III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters
While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.
In
Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information.
Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment.
Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience."
Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.
Id. at 762.
The
Austin Court uses
Dun & Bradstreet and similar language from
Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield
criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the
Austin Court of relying solely on dicta from
Snyder. While this criticism is warranted to the extent that
Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in
Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of
Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in
Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances.
Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn.
Bennett raised this same criticism back in 2014 when
Danielle Citron set out proposed language for revenge porn restrictions. At that time,
I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett
dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of
Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article,
Sexual Privacy).
As the
Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of
Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.
UPDATE - 10/23/2019
In a measured response
here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the
Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on
Austin--apparently "annoyed" him.
Bennett's brief from the Texas case,
Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is
here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.
