Politics

Does The First Amendment Protect Revenge Porn? An Illinois Woman Wants SCOTUS To Decide

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Kevin Daley Supreme Court correspondent
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An Illinois woman will soon ask the U.S. Supreme Court to hear her challenge to a state law barring the non-consensual dissemination of private sexual images, colloquially known as “revenge porn.”

Though the Supreme Court’s First Amendment precedents are generally protective of explicit or obscene images, the justices may consider the constitutionality of revenge porn bans, according to The Washington Post.

The dispute arose in May 2016, when defendant Bethany Austin learned her fiance was cheating on her with a neighbor. Since the couple shared an iCloud account, Austin learned of the infidelity when so-called “sexts” from her fiance’s mistress appeared on her iPad. The pair cancelled their upcoming nuptials in short order.

Austin sent a letter to family and friends relaying her views of events. That letter included texts and nude images her fiance and his mistress exchanged. The victim subsequently told police she only intended Austin’s fiance to see those images. Authorities charged Austin with one count of non-consensual dissemination of private sexual images.

In turn, Austin challenged the revenge porn law on free speech grounds, arguing it is a content-based restriction of speech that violates the U.S. Constitution and the Illinois Constitution. A lower court agreed with Austin in 2018 and dismissed the charge, so the state appealed to the Illinois Supreme Court.

The state Supreme Court reversed and upheld the statute. The majority said the law passes First Amendment muster because it operates as a privacy regulation. The decisive fact is not the content of the material, the court said, but whether the subject consented to its release. Justice P. Scott Neville delivered the opinion for a 5-2 majority.

“The manner of the image’s acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination,” Neville wrote.

He compared the statute to laws prohibiting unauthorized disclosure of medical records 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,” the decision reads. (RELATED: Revenge Porn And The Delicate Balance Between Speech And Privacy)

The Old State Capitol in Springfield, Illinois. (Mandel Ngan/AFP/Getty Images)

The Old State Capitol in Springfield, Illinois, is pictured. (Mandel Ngan/AFP/Getty Images)

In dissent, Justice Rita Garman argued the law needs a “rigorous intent element” to survive. Otherwise, it could open “a wide swath of conduct, including innocent conduct,” to felony prosecution. Austin’s lawyer, Igor Bozic, seized on that point in a subsequent legal filing, the Post reported.

“It covers the woman who reacts to an unwanted sexual text message by showing a friend,” Bozic wrote. “It covers the woman who tries to deter that toxic behavior by forwarding the unsolicited image to the sender’s mother or girlfriend.”

A Minnesota appellate court invalidated their state’s anti-revenge porn law for that very reason Monday and said the statute “is facially overbroad in violation of the First Amendment as a result of its lack of an intent-to-harm requirement.”

Austin’s petition to the Supreme Court is due in mid-January. If the justices take her case, they will hear her dispute next term, which begins in October.

A bipartisan group of senators including GOP Sen Richard Burr of North Carolina and Democratic Sens. Amy Klobuchar of Minnesota and Kamala Harris of California introduced legislation outlawing revenge porn in 2017.

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