Summary
The Illinois Supreme Court reviews the facial constitutionality of section 11-23.5(b) of the Criminal Code, which criminalizes the nonconsensual dissemination of private sexual images. The court holds that the statute does not fall within an established categorical exception to First Amendment protection but is subject to intermediate scrutiny as a content-neutral restriction concerning a purely private matter. The court reverses the circuit court’s judgment declaring the statute unconstitutional and remands for further proceedings.
Topics
Practice areas
Questions Presented
- Whether section 11-23.5(b) of the Criminal Code of 2012 is facially unconstitutional under the First Amendment because it criminalizes protected speech.
- Whether the statute regulates speech in a content-neutral manner subject to intermediate scrutiny or is a content-based restriction subject to strict scrutiny.
- Whether section 11-23.5(b) is narrowly tailored to serve a substantial governmental interest and leaves reasonable alternative avenues of communication.
- Whether the statute is facially overbroad under the First Amendment.
- Whether the statute is facially void for vagueness under the due process clause.
Holdings
- The nonconsensual dissemination of private sexual images is not a newly recognized categorical exception to First Amendment protection, but the statute may nevertheless be upheld under ordinary First Amendment scrutiny.
- Section 11-23.5(b) is subject to intermediate scrutiny because it is a content-neutral time, place, and manner regulation and regulates speech concerning a purely private matter.
- Section 11-23.5(b) satisfies intermediate scrutiny and is constitutional under the First Amendment.
- Section 11-23.5(b) is not facially overbroad because it does not prohibit a substantial amount of constitutionally protected speech in relation to its legitimate scope.
- Section 11-23.5(b) is not unconstitutionally vague as applied to Austin's conduct and provides sufficient notice of the prohibited conduct.
Key quotations
“Consent is contextual.” (¶ 21)
“The First Amendment does not, however, protect the unauthorized distribution of personal, private, and intimate images unrelated to any public interest.” (¶ 86)
“Given the narrowly focused scope of section 11-23.5(b), we conclude that the statute does not prohibit a substantial amount of protected speech when judged in relation to the statute’s legitimate sweep.” (¶ 93)
Factual background
Austin and Matthew had dated for more than seven years, lived together, and shared an iCloud account that caused messages sent to Matthew's iPhone to appear on Austin's iPad. Nude photographs of Matthew's neighbor, the victim, appeared on Austin's iPad, and the victim and Matthew knew Austin had received them. After Austin and Matthew ended their relationship, Austin sent Matthew's cousin a letter disputing Matthew's account of the breakup and attached four of the victim's nude photographs and copies of text messages between Matthew and the victim.
Procedural history
Bethany Austin was indicted for nonconsensual dissemination of private sexual images. The circuit court granted her motion to dismiss, holding section 11-23.5(b) facially unconstitutional as a content-based restriction on speech that was not narrowly tailored to serve a compelling governmental interest. The State took a direct appeal under Illinois Supreme Court Rule 603, and the Supreme Court of Illinois reversed and remanded.
Remand instructions
The cause was remanded to the McHenry County circuit court for further proceedings on the criminal charge.