As a Massachusetts criminal defense lawyer, one of the more interesting defenses to a criminal charge is a First Amendment attack on whether the law is Constitutional. Recently, there have made some First Amendment challenges to the Involuntary Manslaughter Statute in Massachusetts in the Michelle Carter case.  The Massachusetts Supreme Court ultimately rejected that claim finding that the involuntary manslaughter statute punished conduct and was not punishing someone for their viewpoint, but was permitted regulation of conduct that indirectly impacts speech.  Revenge Porn Laws have been challenged on First Amendment grounds.  The United States Supreme Court may hear a case from Illinois that deal with the criminalizing so called Revenge Porn and how it can comport with the requirements of Free Speech under the First Amendment.  The case is Bethany Austin v. State of Illinois, and the filing can be found on the Scotus Blog.  

How did the State of Illinois try to criminalize Revenge Porn?

Illinois passed, like many other states a Revenge Porn Law.  The statute precludes online dissemination via the internet of photographic, film, videotape, digital recordings or depictions or portrays of another person engaged in sex act or with their intimate parts exposed.  The Act covers any circumstance where a reasonable person would know that the person wanted the images to stay private and published them without consent.

What happened in the Austin Case?

the defendant, Beth Austin and her fiance Matt dated for several years.  While engaged to Austin, Matt had a sexual relationship with the neighbor.  During this relationship, sexual pictures were exchanged.  the defendant ended the relationship; Matt claimed that it ended because she went crazy.  To refute these allegations, she sent pictures she found on the shared iCloud account to friends.  Matt went to the police and Beth was charged with violating Illinois Revenue Porn Law.

The trial court initially dismissed the matter finding the law Unconstitutional.  It applied strict scrutiny and found that the law did not target disgruntled ex-boyfriends posting images on the internet or limit its coverage to stereotypical revenge porn scenarios.  The Court found that the law prohibited an entire category of protected speech and that no illicit motive is mentioned in the law.

The Illinois Supreme Court applied intermediate scrutiny because it found the law to be content neutral, time, place and manner restriction.  It reasoned that the Illinois law restricts dissemination of sexual images based not on their content but on the circumstances of acquisition and dissemination.  the Illinois Supreme Court found that the Governmental purpose was to address the secondary effects thereof and privacy interests of potential victims of Revenge Porn.

The Illinois Supreme Court also applied a lower level of scrutiny because it found that the law did not regulate speech on matters of public concern, but only speech involving purely private matters.  The Court also noted that the law served a substantial governmental interest in protecting individual privacy rights which would not be served without the law.

The defendant argued that the United States Supreme Court should grant certiorari because the Illinois Supreme Court wrongfully concluded that there is a different level of scrutiny depending on whether speech involves matters of public concern or mere private matters.  The defense argued that this random balance would undermine First Amendment protections for most speech on social media.

The defense further argued that the defendant in this case was not the type of person that the law was designed to go after.  The defendant made a strong point in this regard as the defendant released the information to shed truth on situation, a form of speech rather than to solely humiliate someone as revenge porn laws were designed to preclude.

The United States Supreme Court has held that content based restrictions on speech are presumptively invalid.  Any content based restriction must meet the highest Constitutional standard of strict scrutiny.

 

What is a Content based Restriction on Speech?

A regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed.  This includes regulating speech in terms of its purpose or subject matter as the United States Supreme Court set forth in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).  In Reed, the Court found that a town could not have rules regulates the sizes of signs based on the type of message that the sign conveyed.  The Court found this regulation a content restriction on speech in violation of the First Amendment.

Since the law punishes based on the content of the message, according to whether the image depicts a sexual act or with in intimate part exposed, it is a content based restriction subject to strict scrutiny.

Free Speech and the Internet

The defense argued that the implication of the Illinois Supreme Court decision for speech on the internet would drastically reduce First Amendment protection for most speech.  The defense further found that the law cannot presume a malicious intent consistent with the First Amendment.  In the Austin case, the defendant did not have a malicious intent but an intent to clear her name or reveal the truth.  The defense in its brief referred to a comparable case of Virginia v. Black, 538 U.S. 343 in which the United States Supreme Court struck down a law that made burning a cross illegal presuming a malicious intent.  The Court indicated that the statute would have been permissible under the First Amendment if it prohibited cross burring with the intent to intimidate.

While the United States Supreme Court hears only a limited number of cases, I would expect the Court go grant certiorari as the decision of the Illinois Supreme Court was in violation of the First Amendment and the issue is important in guiding other State courts in interpreting their Revenge Porn Laws.  As a criminal defense lawyer, it is important to recognize First Amendment challenges to criminal laws.  To learn more about current issues in criminal law you can follow Attorney DelSignore on Facebook.