Illinois’ “revenge porn” law passes constitutional muster, the Illinois Supreme Court ruled on Friday.

In a 5-2 decision, the high court majority overturned a McHenry County judge’s finding that the statute violated the First Amendment when it criminalized the distribution of a person’s private sexual images without that person’s consent.

The Supreme Court’s decision forecloses the possibility that individuals charged under the revenge porn statute can challenge those criminal charges on free speech grounds.

One such cases is pending in Lake County Circuit Court against former state Rep. Nick Sauer. The Daily Herald last week reported that Sauer’s defense attorney cited the high court’s forthcoming ruling at an Tuesday hearing in Waukegan.

The underlying case before the high court stems from McHenry County prosecutors’ case against Bethany Austin, who was charged in August 2016 with one count of nonconsensual dissemination of private sexual images after she discovered nude photos of another woman on an iPad that was connected to her fiance’s iCloud account.

Austin and her fiance ended their engagement. Following the split, Austin’s fiance told friends and family that they separated because Austin was crazy, no longer cooked or did house chores.

Austin responded by mailing a letter to their families explaining her version of events and attaching copies of the text messages and nude photos.

Austin moved to dismiss the charges, arguing the statute violates due process, equal protection, and her First Amendment right to free speech.

The majority found the statute is content-neutral and, therefore, intermediate scrutiny applies in this case. Under that standard, the government need only show that the law being challenged exists to serve an important public interest.

Justice P. Scott Neville Jr., writing on behalf of the majority, emphasized the statute’s importance in the context of privacy.

“Section 11-23.5 [the revenge porn statute] does not prohibit but rather regulates the dissemination of a certain type of information,” Neville wrote, comparing the statute to laws restricting the distribution of medical records, biometric data or Social Security numbers.

“To invalidate [S]ection 11-23.5 would cast doubt on the constitutionality of these and other statutes that protect the privacy rights of Illinois residents.”

Neville was joined in the majority by Chief Justice Lloyd A. Karmeier and Justices Robert A. Thomas, Thomas L. Kilbride and Anne M. Burke.

Justices Rita B. Garman and Mary Jane Theis dissented.

Garman, who authored the dissent, wrote that the characteristics of the image is central to the analysis of this statute. Garman and Theis held that strict scrutiny should apply — the toughest standard of review to justify a law — because the statute creates a content-based restriction.

“As the statute criminalizes the dissemination of images based on their content, it should be viewed as a content-based restriction on speech that must survive strict scrutiny to be valid,” Garman wrote.

The high court took the case on a direct appeal from the McHenry County Circuit Court.

Associate Judge Joel D. Berg rejected Austin’s due process and equal protection claims. But he granted the motion to dismiss based on her argument that the statute unconstitutionally violates her freedom of speech.

Berg found the statute, passed into law in 2015, was a content-based restriction not narrowly tailored to serve the government’s interest.

“The nonconsensual dissemination statute thus permits prosecution and imprisonment for disseminating for any reason whatsoever any nude or sexually explicit image,” Berg wrote in his 30-page opinion in August 2018.

The high court majority rejected Berg’s interpretation, saying the question is not whether the photo was sexually explicit or not but rather whether the sharer had consent to share it.

“There is no criminal liability for the dissemination of the very same image obtained and distributed with consent,” Neville wrote.

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

The majority concluded intermediate scrutiny should apply because the statute “regulates a purely private matter.”

The five-justice majority  found the statute is narrowly tailored. They also determined other potential remedies, such as civil actions or copyright lawsuits, would not serve the government’s substantial interest in protecting Illinois residents from being subjected to revenge porn.

Criminal defense attorney Matthew J. Haiduk said the prospect of being sued in a civil setting can be just as much a deterrent, if not a stronger one.

He also said he believes the majority’s statement that “[c]riminalization is a vital deterrent” goes against modern research on nonpunitive methods of punishment.

“If there’s something you are not going to discourage through criminalization, it’s something that is typically from enflamed passions,” Haiduk said.

Neville was unpersuaded by Austin’s argument that the statute criminalizes an adult’s “own stupidity at the expense of the First Amendment.”

“[Austin’s] crude attempt to ‘blame the victim’ is not well received and it reinforces the need for criminalization,” Neville wrote.

The dissenting justices maintained that “one must look at the content of the photo to determine whether it falls within the purview of the statute.”

Garman and Theis also took issue with the majority’s claim that dissemination itself is harmful. 

“[A]long with the absence of a malicious purpose, the lack of a showing of any specific harm to the alleged victim casts the net of criminality too far in my mind,” Garman wrote.

And she disputed Neville’s finding that the statute offers the least-restrictive means of dealing with the problem, instead suggesting a civil right of action against the offender.

There are currently 39 states that have enacted laws criminalizing the nonconsensual dissemination of private sexual images. Illinois’ statute is seen as one of the most far reaching.

Neville noted in the opinion that tailoring the statute more narrowly — perhaps by requiring the state to prove the defendant intended to cause distress to the victim — would no longer achieve the compelling government interest.

But Geneva criminal defense attorney John Kopp said the lack of an intent element in the statute, plus the high court’s ruling,  will make it increasingly difficult for an attorney to argue what a defendants’ underlying intent may have been.

“It really binds the hands of constitutional and criminal law practicing attorneys,” he said.

Steven J. Heyman, a professor at IIT Chicago-Kent College of Law, said the decision may encourage other states to broaden their own similar laws.

“You could regard a decision like this as trying to impose reasonable limitations on the fast-developing technology we already have that is threatening privacy on a scale that was unimaginable just a few years ago,” he said.

Igor Bozic, a sole practitioner in south suburban South Holland who represented Austin, said the decision reached some good and bad conclusions for his client.

The opinion states the application of the statute is limited to “the types of personal, direct interactions or communications that are typically involved in a close or intimate relationship.”

Since Austin did not have a close relationship with the woman in the photos, Bozic said Austin can still argue the statute does not apply to her.

“The worst thing is that the Supreme Court, I think, has engaged into political argument to get political points,” he said. “They are calling a person a victim where there hasn’t been a trial.”

Bozic said the majority’s pattern of referring to the woman in the photos as a victim showed the decision was politically motivated.

“I think this is an opinion without precedent,” he said

Bozic said his client may want to file a petition for writ of certiorari to the U.S. Supreme Court, but she has not yet decided.

The state was represented by Assistant Illinois Attorney General Garson S. Fischer.

A spokesperson for the attorney general’s office did not respond to a request for comment.

The case is People v. Bethany Austin, 2019 IL 123910.