State supreme court upholds anti-"revenge porn" law, says it doesn't violate free speech

They say Hell hath no fury like a woman scorned.

The scorned woman in this case was part of a romantic triangle. She was a jilted fiancée who electronically shared nude photos of her ex-fiance’s lover, who happened to be the girl next door. All the juicy details—and they are juicy—can be read here.

This is a little different from the typical “revenge porn” case where it’s usually somebody’s ex-boyfriend who posts sexy shots of his ex on the Internet. How these nude photos came to be in the scorned woman’s possession at all is a cautionary tale in itself. She and her fiancé shared an iCloud account, where she could see all the text messages sent to and from his cellphone (not a good idea). After they broke up, she apparently wanted all their family and friends to see the reason.

She was charged under Illinois’s law against revenge porn, officially called “non-consensual sharing of private sexual images” (Section 5/11-23.5(b) of the Criminal Code).  Arguing that the criminal statute flat-out violates the First Amendment right to free speech as well as the Illinois state constitution, she got the circuit court in McHenry County to throw the case out.

Not so fast, the Illinois Supreme Court said in a decision released October 18. The supremes found (5-2) that the state law holds up under constitutional scrutiny by serving a substantial state interest—protecting personal privacy rights—and being carefully tailored to serve the interest.

Whenever a law targets speech, especially the content of speech which was the issue argued here, the bar that the government must clear is pretty high. The state generally has to show that it has a very good reason (such as protecting children, for instance) for the restrictions and that there is no better way for the state to achieve it. In this case, the supreme court found that the Illinois statute regulates only private matters and is drafted in a way that does not overreach the government’s hand or threaten widespread censorship.

“First Amendment protections are less rigorous where matters of purely private significance are at issue,” the majority wrote.

The case is People v. Austin.

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