Is 'Revenge Porn' Free Speech?

May 14, 2019

The Illinois Supreme Court heard arguments Tuesday over whether the First Amendment protects “revenge porn.”

A 2015 Illinois law made it a class 4 felony to share private sexual photos without the subject’s consent. It’s punishable by one to three years in prison.

The next year, Bethany Austin is alleged to have distributed photos another woman sent to her then-fiancé.

When the couple split, Austin claims her ex-fiancé attempted to defame her by claiming they broke up because she was “crazy” and no longer did house chores or cooked. In response, Austin sent a four-page letter to his family containing text messages and nude photos exchanged by him and the other woman.

Austin obtained the photos through her iPad because she shared an iCloud account with her fiancé.

Her attorney, Igor Bozic, argued once someone shares sexual photos, they don’t get a say in what happens with them.

“A gift unconditionally given to somebody can never be truly private, especially when that gift is legal in and of itself … and you give it to somebody without any expectations, any conditions,” Bozic told the justices.

He said Austin was within her rights — and it’s unconstitutional to limit speech just because someone finds it offensive.

But Assistant Attorney General Garson Fischer argues that the act of sharing intimate photos implies they should remain private.

“It is not the case that one’s right to privacy dissipates as soon as they communicate to one other person,” Fischer said. “If that is the limit on the definition to the right to privacy, then it essentially eradicates the right to private conversation at all.”

Fischer told the court it shouldn’t matter if the person distributing the images intended to harm the subject — the damage is done, regardless.

“The vast majority of the victims of this crime — the overwhelming majority — are women,” Fischer said. “If the state can’t proscribe this kind of speech, then it sends a message to women that they’re not entitled to the same privacy, the same sense of safety.”

A national survey reported one in 10 young women have been threatened with posting explicit photos, which can cause extreme emotional distress — and put them at risk of losing their job, getting stalked and harassed.

The case is People v. Austin, No. 123910.