Illinois Supreme Court Gets Revenge Porn Wrong

 Posted on October 21, 2019 in Uncategorized

In an opinion rife with logical and legal error, the Illinois Supreme Court has upheld that state's revenge-porn statute in the face of First Amendment challenges. The opinion is here:

[pdf-embedder url="/wp-content/uploads/2019/10/123910.pdf"]

What's wrong with that? Just about everything.

First,the Illinois Court explicitly claims, at *10-*12, not to identify a new category of speech that falls outside of First Amendment protection.

It then holds that the statute "regulates a purely private matter," so that the strict scrutiny that applies to content-based restrictions does not apply.

In effect, the Illinois Supreme Court has identified "speech on purely private matters" as a category of speech that-just like speech in recognized categories of historically unprotected speech-is not subject to the same protection from content-based restrictions as other speech.

The Supreme Court has never recognized such a category; and even the Vermont Supreme Court in VanBuren explicitly rejected this argument.

It's a bad argument.

The Illinois Supreme Court's other rationale for applying intermediate scrutiny is that the statute restricts speech not based on its content but based on its secondary effects. This doctrine-secondary-effects doctrine-has never been applied by the Supreme Court to uphold a statute outside the context of regulation of bricks-and-mortar sexually oriented businesses.

"Secondary effects" is what I call a jailhouse-lawyer argument. Prosecutors (and here a state high court) will latch onto a phrase that seems to support their position, despite the fact that the phrase's context makes it irrelevant to their argument. Government lawyers trying to uphold revenge-porn statutes do a lot of that.

And the Illinois court makes no bones about its orientation toward results:

The entire field of privacy law is based on the recognition that some types of information are more sensitive than others, the disclosure of which can and should be regulated. To invalidate section 11-23.5 would cast doubt on the constitutionality of these and other statutes that protect the privacy rights of Illinois residents.

Absolutely true. Those statutes are also unconstitutional. That is not actually a legal argument in favor of the revenge-porn statute's constitutionality.

The Illinois court engages in more jailhouse lawyering in invoking Turner Broadcasting System's statement that "[i]t would be error to conclude... that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium (or a subset thereof) but not others." That is true, but the court confuses varying regulation of various media (print, radio, broadcast television, and so forth) for the varying restriction of different content regardless of the medium.

The court writes that the statute "on its face targets the dissemination of a specific category of speech-sexual images."

This makes the statute a content-based restriction.

Then the court goes on to claim that the statute is content neutral, based on a case that says that a statute can be content-neutral "even if it has an incidental effect on some speakers or messages but not on others." Of course here the statute does not have an incidental effect on some messages but not others. It "on its face targets... a specific category of speech."

For a statute to both a) target a specific sort of image, and b) be content neutral, is a logical impossibility. A law that is content based on its face, as the Illinois statute is, is by definition not content neutral, and (according to the U.S. Supreme Court in Reed v. Town of Gilbert, Ariz.) "is subject to strict scrutiny regardless of the government's... content-neutral justification, or lack of ‘animus toward the ideas contained' in the regulated speech[.]"

If a statute restricts speech based on its content alone ("you may not preach"), it is obviously content based.

If a statute restricts speech base only on neutral factors ("you may not make loud noise in the park at night") it is generally content neutral, but the state's intention or application may render it content based.

A statute that has both content-based and content-neutral elements ("you may not preach loudly in the park at night") is content-based and subject to strict scrutiny. The only content-neutral statutes are those that do not target speech based on its content at all. (Here an analogy might be drawn to R.A.V. v. City of St. Paul, Minn., in which the statute forbade only some unfavored fighting words (which are unprotected speech) and not other fighting words, also unprotected but preferred by the city.)

Revenge-porn statutes' direct targeting of only certain content-it is not aimed at other embarrassing nonconsensual violations of privacy-is not redeemed by any purported content-neutral justification.

The Illinois court addresses overbreadth. It should never have done so, once it held that the statute was content neutral. Overbreadth doctrine applies only to content-based restrictions. A content-neutral restriction does not discriminate among content, and because it is the content of speech that makes it unprotected a content-neutral restriction does not discriminate between protected and unprotected speech. If a restriction is content neutral, then by definition it restricts a real and substantial amount of protected speech along with whatever unprotected speech it happens to capture, and overbreadth doctrine cannot apply. Otherwise every content?neutral restriction, which restricts protected speech (preaching loudly in the park at night) along with unprotected speech (making true threats loudly in the park at night) would be subject to strict scrutiny and the presumption of unconstitutionality.

Further, where strict scrutiny does apply the question is whether the statute reaches a real and substantial amount of protected speech in relation to its legitimate sweep, which is the unprotected speech that it restricts. The Illinois court failed to recognize either the legitimate sweep of the statute, which is not the socially undesirable speech but the constitutionally unprotected speech, or the illegitimate sweep of the statute, which is not the socially desirable speech but the constitutionally protected speech the statute restricts.

Not understanding what speech is unprotected, and therefore within the statute's legitimate sweep (anything that is in a recognized category of historically unprotected speech) and what speech is protected (everything else) the Illinois court simply reiterated the elements of the statute and held that they rendered it sufficiently narrow.

There is an obvious answer to every one of these bad arguments, but courts don't know enough free-speech law to know them. And where the consequences of following the law are not that pretty at all, it's easy for them to latch onto appealing-but-incorrect arguments and write vapid-and-wrong opinions like this one.