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People v. Austin

Supreme Court of Illinois

October 18, 2019


          Chief Justice Karmeier and Justices Thomas, Kilbride, and Burke concurred in the judgment and opinion.



         ¶ 1 Defendant Bethany Austin was charged with violating section 11-23.5(b) of the Criminal Code of 2012 (720 ILCS 5/11-23.5(b) (West 2016)), which criminalizes the nonconsensual dissemination of private sexual images. On defendant's motion, the circuit court of McHenry County dismissed the charge, finding that provision facially unconstitutional as an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois Constitutions. U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4. The State filed a direct appeal challenging the judgment of the circuit court. Ill. S.Ct. R. 603 (eff. Feb. 6, 2013). We now reverse and remand the cause to the circuit court for further proceedings.

         ¶ 2 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 only intended for Matthew to see. The victim acknowledged that she was aware that Matthew had shared an iCloud account with defendant, but she thought it had been deactivated when she sent him the nude photographs.

         ¶ 8 Defendant was charged by indictment with one count of nonconsensual dissemination of private sexual images. 720 ILCS 5/11-23.5(b) (West 2016). She moved to dismiss the charge, asserting, inter alia, that the statute is facially unconstitutional because it is a content-based restriction of speech that is not narrowly tailored to serve a compelling government interest, in violation of the federal and state constitutions. U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4.

         ¶ 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 section 11-23.5(b) imposes a restriction on speech based on its content and is not narrowly tailored to serve a compelling government interest. In compliance with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006), the circuit court found section 11-23.5(b) unconstitutional on its face. Because section 11-23.5(b) was held invalid, the State appeals directly to this court. Ill. S.Ct. R. 603 (eff. Feb. 6, 2013). We granted the Cyber Rights Initiative leave to submit an amicus curiae brief in support of the State. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 11 II. ANALYSIS

         ¶ 12 Before this court, the State argues that the circuit court erred in finding section 11-23.5(b) facially unconstitutional because the public distribution of truly private facts is not constitutionally protected. In the alternative, the State asserts that, even if such speech is protected, section 11-23.5(b) is constitutionally valid because it is narrowly tailored to serve a compelling government interest.

         ¶ 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. U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4. She further argues that the distribution of nude images that have been disclosed to another person is constitutionally protected because such images are not truly private facts as the State contends.

         ¶ 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 a 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 section 11-23.5(b) because a court cannot determine whether a statute reaches beyond constitutional limits without first knowing what the statute covers. Id. ¶ 25 (citing United States v. Stevens, 559 U.S. 460, 474 (2010)). When presented with an issue of statutory construction, this court's primary objective is to ascertain and give effect to the intent of the legislature. Oswald v. Hamer, 2018 IL 122203, ¶ 10; Minnis, 2016 IL 119563, ¶ 25. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Oswald, 2018 IL 122203, ¶ 10; Minnis, 2016 IL 119563, ¶ 25. A court will not read language in isolation and must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions. Carmichael v. Laborers' & Retirement Board Employees' Annuity & Benefit Fund, 2018 IL 122793, ¶ 35; Oswald, 2018 IL 122203, ¶ 10. Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be rendered superfluous. Oswald, 2018 IL 122203, ¶ 10; Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394, ¶ 25. Additionally, we must presume that the legislature did not intend to create absurd, inconvenient, or unjust results. Carmichael, 2018 IL 122793, ¶ 35; Minnis, 2016 IL 119563, ¶ 25. It is also proper for the court to consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Carmichael, 2018 IL 122793, ¶ 35; Murphy-Hylton, 2016 IL 120394, ¶ 25.

         ¶ 16 A. The Necessity for the Law

         ¶ 17 Section 11-23.5 addresses the problem of nonconsensual dissemination of private sexual images, which is colloquially referred to as "revenge porn." Generally, the crime involves images originally obtained without consent, such as by use of hidden cameras or victim coercion, and images originally obtained with consent, usually within the context of a private or confidential relationship. Once obtained, these images are subsequently distributed without consent. Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 346 (2014); see Adrienne N. Kitchen, The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment, 90 Chi.-Kent L. Rev. 247, 247-48 (2015).

         ¶ 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 prevalence, 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); see Schein, supra, at 1960 (both citing Amanda Lenhart et al, Nonconsensual Image Sharing: One in 25 Americans Has Been a Victim of "Revenge Porn," Data and Society Research Institute (Dec. 13, 2016), Nonconsensual_Image_Sharing_2016.pdf []).

         ¶ 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 720 ILCS 5/11-23.5)). To date, 46 states and the District of Columbia have enacted legislation prohibiting this conduct. 46 States DC One Territory Now Have Revenge Porn Laws, Cyber Civil Rights Initiative, (last visited July 15, 2019) []; see Schein, supra, at 1973-74 (citing website when it listed 43 states). These statutes "vary widely throughout the United States, each with their own base elements, intent requirements, exceptions, definitions, and penalties." Nisttáhuz, supra, at 357. "The mass adoption of these statutes by states on opposite sides of the political spectrum reflects the urgency of the problem." Goldberg & Massey, supra, at 50.

         ¶ 24 B. The General Assembly's Solution

         ¶ 25 Against this historical and societal backdrop, we consider the terms of the statutory provision at issue. Section 11-23.5(b) provides as follows:

"(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 section 11-23.5(b) is subject to forfeiture sanctions. Id. § 11-23.5(e). Also, the crime is a Class 4 felony. Id. § 11-23.5(f).

         ¶ 26 C. Preliminary Findings

         ¶ 27 We observe that we cannot avoid addressing the constitutionality of section 11-23.5(b). A court will not consider constitutional issues where a case can be decided on other grounds. People v. Nash, 173 Ill.2d 423, 432 (1996); People ex rel. Waller v. 1990 Ford Bronco, 158 Ill.2d 460, 464-65 (1994). In this case, section 11-23.5(b) covers defendant's alleged conduct, and no other justification for the circuit court's judgment has been asserted. Therefore, as the circuit court found, it is proper to reach the constitutional issues presented. See, e.g., United States v. Grace, 461 U.S. 171, 175-76 (1983).

         ¶ 28 Additionally, the circuit court determined that section 11-23.5(b) is facially unconstitutional because it is a content-based restriction of speech in violation of the first amendment. Notably, after finding that the statute violated the first amendment, the court held, without specific analysis, that the statute also violated Illinois's constitutional free speech guaranty (Ill. Const. 1970, art. I, § 4). Further, before this court, the parties do not offer any arguments specifically addressing our state constitutional free speech guaranty. Therefore, we consider only federal constitutional principles. See, e.g., Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.2d 463, 502-03 (2009).

         ¶ 29 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." U.S. Const., amends. I, XIV; De Jonge v. Oregon, 299 U.S. 353, 364 (1937). "[T]he First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals." Turner Broadcasting System, Inc. v. Federal Communications Comm 'n, 512 U.S. 622, 641 (1994); see also Stevens, 559 U.S. at 468 (stating that "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (stating that the first amendment "generally prevents government from proscribing speech *** because of disapproval of the ideas expressed").

         ¶ 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).

         ¶ 32 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 section 11-23.5(b) of the Criminal Code (720 ILCS 5/11-23.5(b) (West 2016)), does not fall within an established first amendment categorical exception. We acknowledge, as did the Vermont Supreme Court, that the nonconsensual dissemination of private sexual images "seems to be a strong candidate for categorical exclusion from full First Amendment protections" based on "[t]he broad development across the country of invasion of privacy torts, and the longstanding historical pedigree of laws protecting the privacy of nonpublic figures with respect to matters of only private interest without any established First Amendment limitations." State v. VanBuren, 2018 VT 95, ¶ 43. However, we decline to identify a new categorical first amendment exception when the United States Supreme Court has not yet addressed the question. See id. ¶ 46. Nevertheless, the consideration of individual privacy that would support the articulation of a first amendment categorical exclusion in this case will carry weight later in our analysis.

         ¶ 37 Thus far, we have concluded that section 11-23.5(b) implicates the freedom of speech and that the targeted speech does not fit into any first amendment categorical exception. Therefore, first amendment scrutiny is warranted. We must next determine the appropriate level of scrutiny for the statute.

         ¶ 38 2. Degree of Scrutiny

         ¶ 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.____, ____, 135 S.Ct. 2218, 2226 (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 less 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 section 11-23.5(b) "is a content- based speech restriction because it doesn't target all pictures, videos, depictions, and portrayals, but only those showing nudity or sexual activity." In both the circuit court and before this court, the parties premised their arguments on the ...

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