When Bethany Austin learned that her fiance had been unfaithful in late May 2016, she ended the seven-year relationship and called off their upcoming wedding.

He told the couple’s friends that Austin was “crazy.” To set the record straight, Austin sent their families a four-page letter that contained text messages between her ex and his mistress and nude photos of the woman.

Austin was promptly charged with a felony for violating Illinois’s revenge porn law, known as “nonconsensual dissemination of private sexual images.” In return, she argued that the law was an unconstitutional restriction of her freedom of speech.

Legislation criminalizing nonconsensual pornography has gained traction in much of the country. Forty-six states and Washington, D.C., have passed revenge porn laws over the past decade, and appeals courts across the country are beginning to take up cases involving the constitutionality of “revenge porn” statutes on First Amendment grounds.

The U.S. Supreme Court has yet to hear a case on the issue, but Austin’s could be the first.

The Constitution protects freedom of speech, even when it is “offensive or disagreeable.” But rules have exceptions; the First Amendment does not protect certain speech, such as threats, obscenity, incitement of violence and public disclosure of private information.

When the government imposes a content-based restriction on a specific statement or image, it must satisfy the strictest, and often insurmountable, level of legal scrutiny. The restriction must serve a “compelling government interest” and must be as minimal as possible.

Many revenge porn laws have survived these legal challenges.

Appeals courts in Wisconsin and Vermont rejected the First Amendment challenges and ruled that sexually explicit images deserved as much privacy as other forms of sensitive information, such as medical records and financial data.

In 2015, Texas passed a law requiring revenge porn images to have an identifiable victim and the victim to have had a reasonable expectation that the photos would remain private. The legislation was challenged, and the case is pending in the state’s highest criminal court.

Two years after Austin’s arrest, the Illinois trial court dismissed the charge, but the Illinois Supreme Court, in a 5-to-2 decision handed down in October, reversed its decision and ruled that distributing private sexual images without permission was not constitutionally protected free speech. The state’s revenge porn law, it said, was aimed not at prohibiting certain speech, but at protecting privacy.

“Viewed as a privacy regulation, [the law] is similar to laws prohibiting the unauthorized disclosure of other forms of private information, such as medical records, biometric data, or Social Security numbers,” the court said. “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.”

In strong contrast to the Illinois decision, a Minnesota court of appeals ruled Monday that the state’s law against revenge porn was unconstitutional and violated First Amendment rights. The only time the state may punish this behavior, the court said, is when the perpetrator intended to harm his or her victim.

According to Mary Anne Franks, president of the Cyber Civil Rights Initiative who drafted a model that has served as a template in most states, there are many variations of these statutes. Some laws have different words; others have varying penalties. The most significant difference in the statutes is that some states – like Minnesota – limit revenge porn to situations in which the perpetrator acts with the intent to harm or harass his or her target, something she called a “very serious mistake” that “fundamentally misunderstands the nature of the abuse” because most nonconsensual porn cases do not involve someone trying to harm the victim.

“Sometimes it is an ex-boyfriend trying to destroy the life of his former partner, but the vast majority of cases is because people want to make money or engage in voyeurism or for a number of reasons that don’t involve harassing the victim,” she said. “You need a nonconsensual pornography law to cover the gap between harassment and privacy violations.”

According to Igor Bozic, attorney for Austin, the Illinois revenge porn statute, which is broader than similar laws in many other states, “went too far.”

Bozic, in requesting that the Illinois Supreme Court stay the decision until he files a petition for a writ of certiorari at the U.S. Supreme Court, wrote of the statute: “It covers the woman who reacts to an unwanted sexual text message by showing a friend. It covers the woman who tries to deter that toxic behavior by forwarding the unsolicited image to the sender’s mother or girlfriend. . . . And of course, it gives controlling men – like Bethany Austin’s ex-fiancé – yet another legal tool for victimizing their intimate partners.”

“Where do you draw the line with this law?” he said to The Washington Post.

But even if the Supreme Court does agree to take Austin’s case, many legal experts sat she faces an uphill battle.

Andrew Koppelman, a law professor at Northwestern University who wrote a law review article on the constitutionality of revenge porn statutes, explained that the First Amendment allows the government to limit public disclosure of private, often intimate information without consent – such as medical or financial information.

The Illinois statute, he said, targets the specific harm it’s trying to remedy: distributing material when the disseminator knows, or should have known, that the person in the image did not consent to its distribution.

“There’s no good reason to construe free speech to protect malicious people who want to hurt people unless there’s no way to draw a line,” he said. “The Illinois statute shows there is a sensible way to draw a line.”


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