Revenge porn isn't protected free speech, Illinois Supreme Court rules

  • In a 5-2 decision handed down Friday, the Illinois Supreme Court has ruled that disseminating private sexual images without permission -- also known as revenge porn -- is not constitutionally protected free speech.

    In a 5-2 decision handed down Friday, the Illinois Supreme Court has ruled that disseminating private sexual images without permission -- also known as revenge porn -- is not constitutionally protected free speech. AP Photo/Seth Perlman, 2014

  • Nick Sauer

    Nick Sauer

 
 
Updated 10/19/2019 2:40 PM

In a decision with implications for the case of a disgraced former state lawmaker from the suburbs and others like him, the Illinois Supreme Court has ruled that disseminating private sexual images without permission -- better known as revenge porn -- is not constitutionally protected free speech.

The 5-2 ruling handed down Friday stems from the case of a McHenry County woman who sent friends and family nude images of a woman she caught having an affair with her then-fiance.

                                                                                                                                                                                                                       
 

County authorities charged Bethany Austin in 2016 with nonconsensual dissemination of private sexual images, a felony, after she emailed the images along with a four-page letter explaining why she and her fiance had called off their wedding, court documents state.

Her attorneys last year argued that the charge is an unconstitutional restriction of speech that does not serve compelling government interest. A McHenry County judge agreed and dismissed the charge.

The high court's ruling Friday reverses that decision and sends the case back to McHenry County for further proceedings.

In the majority opinion, Justice P. Scott Neville, Jr. writes that the state's revenge porn law is not intended to prohibit certain forms of speech, but instead to protect privacy.

"Viewed as a privacy regulation, (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," Neville writes. "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."

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The court also ruled there is no legitimate public interest in the private sexual activities of the victim or in the embarrassing facts revealed about her life.

Justices harshly rejected Austin's argument that the law criminalizes the "stupidity" of the person in the images at the expense of the First Amendment.

"Defendant's crude attempt to 'blame the victim' is not well received and reinforces the need for criminalization," Neville wrote.

In a dissenting opinion, Justice Rita B. Garman writes that the revenge porn law is not narrowly tailored enough to avoid punishing protected speech. Unlike other states' revenge porn laws, which require malicious intent by the person distributing the images, Illinois' statute does not address motive or whether the victim suffered harm, she notes.

                                                                                                                                                                                                                       
 

"The absence of any such nefarious intentions proscribed by other states opens the door wide for innocent conduct to be criminalized," Garman writes, with Justice Mary Jane Theis joining her in the dissent.

Besides Bethany Austin, the ruling could have significant ramifications for the case of former state Rep. Nick Sauer.

Sauer, 36, faces 12 counts of nonconsensual dissemination of private sexual images alleging he posted lewd images of two former girlfriends online without their consent.

The Lake Barrington Republican resigned from his 51st District seat in the state House last year after allegations surfaced claiming he created an Instagram account in a former girlfriend's name and posted images there to lure men into graphic discussions. A second woman later came forward with similar accusations.

Attorneys in Sauer's case were awaiting Friday's decision before proceeding with a defense motion asking a judge to throw out charges against him.

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