SPRINGFIELD, Ill. – In a decision issued late last week, the Illinois Supreme Court ruled by a majority vote of 5-2 that so-called “revenge porn” isn’t Constitutionally protected expression, overturning the ruling of a lower court in criminal case which reaches back to 2016.

The defendant in the case, Bethany Austin, was charged with nonconsensual dissemination of private sexual images after she sent family and friends nude images of a woman who she had caught having an affair with her then-fiancé. The messages were Austin’s response to her former fiancé’s claims that their engagement had been broken off because Austin was “crazy and no longer cooked or did household chores,” according to court documents.

Austin’s attorneys moved to dismiss the charges, arguing that the Illinois statute is “facially unconstitutional because it is a content-based restriction of speech that is not narrowly tailored to serve a compelling government interest, in violation of the federal and state constitutions.”

A circuit court in McHenry County agreed with Austin and dismissed the charges against her. The State then appealed directly to the Illinois Supreme court, leading to the ruling issued last week.

In rendering its decision, the Court echoed a point made by many in the adult entertainment industry: While commonly referred to as “revenge porn,” the depictions at issue in cases like the one before the court are distinct from images created for commercial distribution with the explicit consent of all people depicted therein.

“The colloquial term ‘revenge porn’ obscures the gist of the crime,” the Court majority wrote in its decision. “Indeed, the term ‘revenge porn,’ though commonly used, is misleading in two respects. First, ‘revenge’ connotes personal vengeance. However, perpetrators may be motivated by a desire for profit, notoriety, entertainment, or for no specific reason at all. The only common factor is that they act without the consent of the person depicted. Second, ‘porn’ misleadingly suggests that visual depictions of nudity or sexual activity are inherently pornographic.”

The majority also strongly objected to the reasoning of the lower court in finding that “when a girlfriend texts a nude selfie to a third party—her boyfriend—she gives up all expectations of privacy in the images. And if she cannot reasonably expect that the image remain private, then didn’t the act of sharing it in the first place demonstrate she never intended the image to remain private?”

The majority wrote in its decision that “such postulating is refuted by reams of scholarship.”

“The above comments reflect a fundamental misunderstanding of the nature of such communications,” the majority asserted. “Given the circuit court’s factual starting point, the boyfriend to whom a nude selfie is sent is the second party to the private communication – not a third party. As a consequence, a girlfriend who transmits such a photo does not automatically relinquish ‘all expectations of privacy in the images,’ as the circuit court hypothesized. Contrary to the circuit court’s conclusion, the sharing of a private sexual image in a personal and direct communication with an intended recipient does not demonstrate that the transmission was never intended to remain private.”

While the majority found Illinois’ prohibition of revenge porn legal, the court declined “to identify a new category of speech that falls outside of first amendment protection.”

“The nonconsensual dissemination of private sexual images, prohibited by section 11-23.5(b) of the Criminal Code…. does not fall within an established first amendment categorical exception,” the majority wrote. “We acknowledge, as did the Vermont Supreme Court, that the nonconsensual dissemination of private sexual images ‘seems to be a strong candidate for categorical exclusion from full First Amendment protections’ based on ‘the 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.’ However, we decline to identify a new categorical first amendment exception when the United States Supreme Court has not yet addressed the question.”

In deciding what level of scrutiny to apply in its analysis, the majority held that because “the statute regulates a purely private matter” and “first amendment protections are less rigorous where matters of purely private significance are at issue,” intermediate scrutiny should be applied, rather than strict scrutiny.

“We have no difficulty in concluding that section 11-23.5 serves a substantial government interest unrelated to the suppression of speech,” the majority wrote, later adding that they had also concluded “that the substantial government interest of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively absent section 11-23.5.”

The majority also noted that the point of Austin’s communications – to assert that her former fiancé’s affair was the reason for their split – could have been accomplished without attaching the images that ran afoul of the law. Accordingly, the law didn’t suppress her expression, it just prevented her from using the images in the context of that expression.

“In this case, defendant makes no argument that her speech would have been in any way stifled by not attaching the victim’s private sexual images to her letter,” the majority wrote. “We hold that section 11-23.5 satisfies intermediate scrutiny.”

The majority also held that the statute is neither overly broad, nor unconstitutionally vague.

In her dissent, Justice Rita B. Garman took issue with majority’s application of intermediate scrutiny in the case, noting that “both parties agree a strict scrutiny analysis applies in this case.”

Garman wrote that she “would find the statute criminalizes the dissemination of images based on their content — ‘private sexual images’ — and thus strict scrutiny applies.”

“Moreover, in applying strict scrutiny, I would find the statute is neither narrowly tailored nor the least restrictive means of dealing with the nonconsensual dissemination of private sexual images,” Garman added. “Accordingly, I respectfully dissent.”

“Contrary to the majority’s belief, the content of the image is precisely the focus of section 11-23.5,” Garman continued. “It is not a crime under this statute to disseminate a picture of a fully clothed adult man or woman, even an unflattering image obtained by the offender under circumstances in which a reasonable person would know or understand the image was to remain private and he knows or should have known  the person in the image had not consented to its dissemination. However, if the man or woman in the image is naked, the content of that photo makes it a possible crime. Thus, one must look at the content of the photo to determine whether it falls within the purview of the statute.”

Garman also took issue with the majority’s contention that the statute “does not prohibit but, rather, regulates the dissemination of a certain type of private information.”

“(T)he statute does not lay out a ‘privacy regulation,’ it sets forth a criminal offense,” Garman observed. “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.”

Noting that laws burdening speech based on content are to be subject to “the most exacting scrutiny,” Garman asserted her belief that the Illinois statute fails to hold up to such scrutiny.

“Here, the statute cannot withstand strict scrutiny, as it is not narrowly tailored to serve the State’s interests and less restrictive alternatives are available,” Garman concluded. “Thus, I would find the statute unconstitutional and affirm the circuit court’s judgment.”

As a result of the Court’s ruling, the case is now remanded to the circuit court in McHenry County for trial.