2015.22: Illinois's Revenge-Porn Statute

 Posted on January 17,2015 in Uncategorized

Here's the meat of Illinois's new revenge-porn criminalization statute:

720 ILCS 5/11-46 Sexual exploitation via non-consensual dissemination of a sexual act or intimate parts.(b) A person commits sexual exploitation via non-consensual dissemination of a sexual act or intimate parts when he or she:(1) intentionally disseminates an image of another identifiable person who is engaged in a sexual act or whose intimate parts are exposed; and(2) the person knows or should have known the other person has not consented to the dissemination.(c) Exemptions. The following activities are exempt from the provisions of this Section.(1) The intentional dissemination... made under a criminal investigation that is otherwise lawful.(2) The intentional dissemination... for the purpose of, or in connection with, the reporting of unlawful conduct.(3) The intentional dissemination... where the images involve voluntary exposure in public or commercial settings.(4) The intentional dissemination... when the dissemination serves a lawful public purpose.

It is a class four felony: the penalty is from one to three years in prison.

Danielle Citron is of the opinion that a revenge-porn statute should "only punish individuals who knowingly and maliciously invade another's privacy and trust." The Illinois statute does not do so.

It has a "public purpose" exception to satisfy the Weiner-picture fetishists, but a public-purpose exception doesn't save an otherwise-unconstitutional statute. Professor Neil Richards argues that the power to decide whether speech is legitimate, is the power to censor.

Under this, as under the Arizona statute that has been put on hold in U.S. District Court, innocent baby pictures would be felonious.

Carrie Goldberg likes it.

So let's run through the First Amendment analysis:

Does it restrict speech? Yes: dissemination of an image is speech.

Is the restriction content-based? Yes: the image must be of an identifiable person engaged in a sexual act or with intimate parts exposed. So it violates the Grumpy-Cat Rule. So it's presumptively unconstitutional.

To be upheld it has to pass the categorical test applied by the Supreme Court in Stevens and Alvarez. Under that test, a substantial amount of the forbidden speech must not be protected. Protected speech is all speech that doesn't fall into a category of historically unprotected speech.

All categories of historically unprotected speech have not necessarily been recognized by the Supreme Court yet. But the categories so far recognized are:

1. Advocacy intended, and likely, to incite imminent lawless action;

2. [Distribution of] obscenity;

3. Defamation;

4. Speech integral to [non-speech] criminal conduct;

5. So-called "fighting words";

6. Child pornography;

7. Fraud;

8. True threats; and

9. Speech presenting some grave and imminent threat the government has the power to prevent.

Some of the speech forbidden by the Illinois statute might incidentally be unprotected-it might be obscenity or child pornography-but there is no recognized category that includes the bulk of speech forbidden by section 5/11-46.

So to uphold the statute a court would have to recognize a new category of unprotected speech that covered at least almost all of the speech forbidden by the statute. I've discussed what that means here; the short version is that it's hard to see what category this speech might fit into that wouldn't also cover a great deal of speech that benefits society. We'll see what the pro-criminalization folks propose.