Back in June, I wrote about a free-speech challenge concerning “revenge porn.” Briefly put, the law makes it a crime for people to publish certain intimate or private images to others without consent.
A man was living with his fiance, but texting and sharing private messages and images with another woman. The man’s fiance, because of a shared iCloud account, was receiving all of the messages on her ipad. The fiance, upset, eventually shared the nude photographs of the other woman. When the man found out, he reported his former fiance to the police. They charged her under the so-called “revenge porn” law.
In Court, the former-fiance challenged the law as an unconstitutional restriction on her freedom of speech. The McHenry County Circuit Judge dismissed the charges - determining the law violated the constitutional protections afforded to free speech.
The Illinois Supreme Court disagreed. The Court started by trying to get rid of the “revenge porn” label. It explained:
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 Court rejected the argument that a person, by sharing a nude image with a significant other, no longer intends for an image to remain private. This is a point made by the trial court. But, the Supreme Court quickly set that aside. “Such postulating is refuted by reams of scholarship. Moreover, the above comments reflect a fundamental misunderstanding of the nature of such communications. 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.” .
The Supreme Court went on to rigorously apply the tests concerning constitutionality and determined the subject matter was subject to an intermediate level of scrutiny under those tests. The Supreme Court went on to explain the breadth of this problem, at length, with multiple references to law journal articles. Expounding a great deal on concepts of privacy, and more scholarly articles, the Court went on to determine the law does not unconstitutionally restrict the rights to free speech (and due process). Justices Garman and Thies dissented.
This development in internet law demonstrates the interplay between principals as old as the country (free speech) and the rise of technology in our lives.