Cook County Record

Thursday, December 5, 2019

Revenge porn not protected as free speech, Illinois Supreme Court rules

State Court

By John Breslin | Nov 12, 2019

Phone 06

An Illinois state law that criminalizes revenge pornography, the non-consensual and intentional sending of sexual images, is constitutional and not protected by free speech, the Illinois Supreme Court has ruled.

The opinion, by a 5-2 majority, aligns with established precedent that protects highly personal information from being sent to third persons, according to an attorney who specializes in internet, media and privacy law.

The People v. Austin case centered on the criminal prosecution of an estranged girlfriend who, having found nude images of her former boyfriend's new partner, sent them on to others. It is a Class 4 felony punishable by one to three years in prison or probation for up to 30 months.


Mark Sableman | Thompson Coburn LLP

She was charged under Illinois law of non-consensual, intentional, dissemination of sexual images, but McHenry County Circuit Court threw out the count when the judge concluded that it was "facially unconstitutional" under protected free speech. The state appealed directly to the Supreme Court.

Attorney Mark Sableman, of Thompson Coburn, said the Supreme Court "fairly simply" made the decision that prosecuted those accused of revenge porn, or the intentional sending of sexual images of another, is not unconstitutional and can be regarded as a criminal offense.

Sableman described the lower court's view as "fairly simplistic and abstract" when finding that there was a free speech protection.

But the position is understandable to an extent, the attorney told the Cook County Record, because there is a "very high standard" when courts are parsing issues that even tangentially impinge on free speech. In this case, the state Supreme Court held that there was only a slim, if any, chance that it could silence free speech.

There are examples where "highly private information" is protected, Sableman explained, including in the case of details of an individual's health or sexuality. "It is not uncommon,"  he added.

"I do not think...that if you distribute highly private sexual images without consent then it is hard to see where that would be allowable," Sableman said.

He added that the law, and the courts, are historically conservative and careful, particularly with regard to free speech, and it is somewhat understandable the lower court was reluctant to back the state in the first instance. Alleged criminal offenses "fueled by technology" throw up particular challenges for the judiciary, Sableman added.

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