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
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), https://datasociety.net/pubs/oh/
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)
[https://perma.cc/JUX4-B4GK]; 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).
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. §
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
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
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
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
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
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