Bethany Austin v. Illinois
Whether prohibiting the nonconsensual, public dissemination of private sexual images, which the defendant knew or should have known were intended to remain private, violates the First Amendment to the United States Constitution.
BRIEF IN OPPOSITION
The nonconsensual dissemination of private sexual images exposes victims to a wide variety of serious harms that affect nearly every aspect of their lives. The physical, emotional, and economic harms associated with such conduct are well documented: many victims are exposed to physical violence, stalking, and harassment; suffer from emotional and psychological harm; and face limited professional prospects and lowered income, among other repercussions. To address this growing problem and protect its residents from these harms, Illinois enacted section 11-23.5, 720 ILCS 5/11-23.5. Petitioner—who was charged with violating section 11-23.5 after she disseminated nude photos of her fiancé’s paramour without consent—asks this Court to review the Illinois Supreme Court’s decision rejecting her First Amendment challenge. This request should be denied.
To begin, this case does not satisfy the criteria for certiorari. Petitioner asserts that the Illinois Supreme Court created a split in lower court authority by applying intermediate scrutiny, as opposed to strict scrutiny. But as petitioner acknowledges, only one other state court of last resort has addressed the constitutionality of a nondissemination statute, and that court engaged in a very similar analysis to the Illinois Supreme Court to uphold the statute. The other two decisions cited by petitioner are intermediate appellate court opinions that have been accepted for further review by their respective high courts, and thus do not present a final adjudication of the issue in those States.
In any event, the petition for certiorari should be denied because section 11- 23.5 is constitutional under any standard of review, including strict scrutiny. The theory petitioner presses—that the statute is not sufficiently tailored because it does not include a requirement that the defendant intended to harm the victim— ignores that the harms associated with nonconsensual dissemination occur regardless of whether the content was shared to harm another or for notoriety, entertainment, or monetary gain. Accordingly, section 11-23.5 is narrowly tailored to serve the state interest in protecting all victims of this conduct.
Finally, this case is a poor vehicle to decide the question presented. The split identified by petitioner on the proper standard of review is shallow at best, and its resolution will not affect the outcome of this case. The case, moreover, comes to the Court at an interlocutory posture. Because petitioner has not yet had a trial, it is impossible to know whether her conduct even violated section 11-23.5.
- Petitioner Bethany Austin was living with her fiancé, Matthew, when she learned of his infidelity with a neighbor, who is the victim in this case. Pet. App. 2a. Because petitioner and Matthew shared an Apple iCloud account, all text messages sent to or from Matthew’s iPhone also appeared on petitioner’s iPad. Ibid. One day, a series of text messages between Matthew and the victim appeared on petitioner’s iPad. Ibid. The messages included nude photos that the victim sent of herself to Matthew. Ibid. The engagement was called off, and, a few months later, the couple separated. Id. at 3a. Matthew “began telling family and friends that their relationship had ended because petitioner was crazy and no longer cooked or did household chores.” Ibid. In response, petitioner sent a letter to an unknown number of recipients and attached four nude photos of the victim taken from petitioner’s iPad, as well as the accompanying text messages. Ibid. Among the recipients was Matthew’s cousin, who informed Matthew about petitioner’s letter. Ibid. Matthew reported the letter and photos to police, and petitioner was charged with nonconsensual dissemination of private sexual images pursuant to section 11- 23.5. Ibid.
- Illinois enacted section 11-23.5 in 2015 to criminalize the “non consensual dissemination of private sexual images” in circumstances where a person “intentionally disseminates an image of another person” who is at least 18 years of age, is identifiable from the image or associated information, and “is engaged in a sexual act or whose intimate parts are exposed.” 720 ILCS 5/11-
23.5(b)(1). To be convicted under this provision, a person must obtain “the image under circumstances in which a reasonable person would know or understand that the image was to remain private” and also must have “know[n] or should have known that the person in the image has not consented to the dissemination.” Id. 5/11-23.5(b)(2)-(3). The statute exempts dissemination for criminal investigations, to report unlawful conduct, where the images involve voluntary exposure in public or commercial settings, or for lawful public purposes. Id. 5/11-23.5(c).
- Petitioner moved to dismiss the charges, arguing (as relevant here) that the statute violates the free speech provisions of the First Amendment to the United States Constitution. Pet. App. 76a. The trial court agreed. Id. at 87a, 89a, 119a. Specifically, the trial court found that section 11-23.5 restricted speech, id. at 91a, based on its content, id. at 92a; that the restricted speech is protected by the First Amendment, id. at 105a; and that the statute could not survive strict scrutiny, id. at 117a, because the State offered “no compelling justification for the . . . statute,” id. at 113a, and because, in any event, the statute is not narrowly tailored to the State’s justification, id. at 117a.
- Shortly thereafter, the State directly appealed to the Illinois Supreme Court from the trial court’s order declaring section 11-23.5 facially unconstitutional. See Ill. S. Ct. R. 603 (providing for direct appeal as of right when a state statute has been held unconstitutional). Before the Illinois Supreme Court, the State argued that the trial court erred in finding section 11-23.5 unconstitutional because the public distribution of truly private facts is not constitutionally protected. Pet. App.
4a. In the alternative, the State asserted that even if such speech is protected, section 11-23.5 is constitutionally valid because it is narrowly tailored to serve a compelling government interest. Ibid.
- The Illinois Supreme Court reversed the trial court and remanded for further proceedings. It cited with approval the Vermont Supreme Court’s opinion in State v. VanBuren, 214 A.3d 791 (Vt. 2019), which recognized 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.’” Id. at 17a (quoting VanBuren, 214 A.3d at 807). But the court ultimately “decline[d] the State’s invitation to identify a new category of speech that falls outside of first amendment protection.” Ibid.
The court went on to consider the appropriate level of scrutiny and concluded “that section 11-23.5(b) is subject to an intermediate level of scrutiny” because (1) “the statute is a content-neutral time, place, and manner restriction,” and (2) “the statute regulates a purely private matter.” Id. at 20a. The court further concluded “that section 11-23.5 serves a substantial government interest” because it protects the health and welfare of Illinois citizens and their individual rights to privacy, id. at 28a-33a, and that “section 11-23.5 is narrowly tailored to further the important governmental interest identified by the legislature,” id. at 43a. Finally,
the court determined that section 11-23.5 is not overbroad or vague. Id. at 47a, 57a 63a.