CCRI Applauds Illinois Supreme Court Decision Upholding “Revenge Porn” Law Against First Amendment Challenge

For immediate release: CCRI Applauds Illinois Supreme Court Decision Upholding “Revenge Porn” Law Against First Amendment Challenge.

In December 2014, Illinois passed the strongest criminal law against nonconsensual pornography in the country. The measure was drafted in collaboration with Cyber Civil Rights Initiative President Mary Anne Franks, who testified on behalf of the bill before the Illinois legislature. In 2018, a circuit court declared the law unconstitutional on First Amendment grounds. The Cyber Civil Rights Initiative was granted leave to file an amicus brief in the case when it came before the Illinois Supreme Court. On Friday, Oct. 18, 2019, the Illinois Supreme Court upheld the law, adopting many of the arguments set forth in CCRI’s amicus and citing extensively to scholarship by President Franks and Vice-President Danielle Citron.

In People v. Austin (2019 IL 123910), the court found that “nonconsensual dissemination of private sexual images causes unique and significant harm to victims.” Evaluating Illinois’ law under intermediate scrutiny, the court found that it “is narrowly tailored to further the important governmental interest identified by the legislature,” namely, the protection of privacy. The law

“is similar to laws prohibiting the unauthorized disclosure of other forms of private information, such as medical records, biometric data, or Social Security numbers. The entire field of privacy law is based on the recognition that some types of information are more sensitive than others, the disclosure of which can and should be regulated. To invalidate [the law] would cast doubt on the constitutionality of these and other statutes that protect the privacy rights of Illinois residents.”

The court employed intermediate scrutiny because the law is a content-neutral time, place, and manner restriction and because it regulates a “purely private matter,” both arguments advanced by President Franks in her 2017 law review article, Revenge Porn Reform: A View From the Front Lines.

The court also found “that the unauthorized dissemination of a private sexual image, which by definition must depict a person while nude, seminude, or engaged in sexually explicit activity, is presumptively harmful,” and that “[c]riminalization is a vital deterrent” in addressing this harm. It criticized the defendant’s contention that the law “criminalizes an adult complainant’s own stupidity at the expense of the [f]irst [a]mendent,” finding that the claim “entirely disregards the victim’s first amendment right to engage in a personal and private communication that includes a private sexual image.”  Such a “crude attempt to ‘blame the victim,’” said the court, “is not well received and reinforces the need for criminalization.”

One of the major strengths of Illinois’s law, which sets it apart from the majority of other state laws on the issue, is that it recognizes that the fundamental harm of nonconsensual pornography is the violation of privacy, not any particular motive for the violation. As the court observed, “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.”

The decision in People v. Austin demonstrates that free speech and privacy are not mutually exclusive and reaffirms CCRI’s position that Illinois’s law should be a model for other states.