People v. Austin

2019 IL 123910

155 N.E.3d 439

440 Ill.Dec. 669

The PEOPLE of the State of Illinois, Appellant,

v.Bethany AUSTIN, Appellee.

Docket No. 123910

Supreme Court of Illinois.

Opinion filed October 18, 2019

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 Defendant Bethany Austin was charged with violating section 11-23.5(b) of the Criminal Code of 2012 ( 720 ILCS 5/11-23.5(b) (West 2016)), which criminalizes the nonconsensual dissemination of private sexual images. On defendant's motion, the circuit court of McHenry County dismissed the charge, finding that provision facially unconstitutional as an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois Constitutions. U.S. Const., amend. I ; Ill. Const. 1970, art. I, § 4. The State filed a direct appeal challenging the judgment of the circuit court. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013). We now reverse and remand the cause to the circuit court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Defendant was engaged to be married to Matthew, after the two had dated for more than seven years. Defendant and Matthew lived together along with her three children. Defendant shared an iCloud account with Matthew, and all data sent to or from Matthew's iPhone went to their shared iCloud account, which was connected to defendant's iPad. As a result, all text messages sent by or to Matthew's iPhone automatically were received on defendant's iPad. Matthew was aware of this data sharing arrangement but took no action to disable it.

¶ 4 While Matthew and defendant were engaged and living together, text messages between Matthew and the victim, who was a neighbor, appeared on defendant's iPad. Some of the text messages included nude photographs of the victim. Both Matthew and the victim were aware that defendant had received the pictures and text messages on her iPad. Three days later, Matthew and the victim again exchanged several text messages. The victim inquired, "Is this where you don't want to message [because] of her?" Matthew responded, "no, I'm fine. [S]omeone wants to sit and just keep watching want [sic ] I'm doing I really do not care. I don't know why someone would wanna put themselves through that." The victim replied by texting, "I don't either. Soooooo baby ...."

¶ 5 Defendant and Matthew cancelled their wedding plans and subsequently broke up. Thereafter, Matthew began telling family and friends that their relationship had ended because defendant was crazy and no longer cooked or did household chores.

¶ 6 In response, defendant wrote a letter detailing her version of events. As support, she attached to the letter four of the naked pictures of the victim and copies of the text messages between the victim and Matthew. When Matthew's cousin received the letter along with the text messages and pictures, he informed Matthew.

¶ 7 Upon learning of the letter and its enclosures, Matthew contacted the police. The victim was interviewed during the ensuing investigation and stated that the pictures were private and only intended for Matthew to see. The victim acknowledged that she was aware that Matthew had shared an iCloud account with defendant, but she thought it had been deactivated when she sent him the nude photographs.

¶ 8 Defendant was charged by indictment with one count of nonconsensual dissemination of private sexual images. 720 ILCS 5/11-23.5(b) (West 2016). She moved to dismiss the charge, asserting, inter alia , that the statute is facially unconstitutional because it is a content-based restriction of speech that is not narrowly tailored to serve a compelling government interest, in violation of the federal and state constitutions. U.S. Const., amend. I ; Ill. Const. 1970, art. I, § 4.

¶ 9 The State opposed defendant's motion, arguing that the type of speech restricted by the statute is not constitutionally protected and that the statute is narrowly tailored to serve a compelling government interest.

¶ 10 The circuit court agreed with defendant that section 11-23.5(b) imposes a restriction on speech based on its content and is not narrowly tailored to serve a compelling government interest. In compliance with Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006), the circuit court found section 11-23.5(b) unconstitutional on its face. Because section 11-23.5(b) was held invalid, the State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013).

We granted the Cyber Rights Initiative leave to submit an amicus curiae brief in support of the State. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 11 II. ANALYSIS

¶ 12 Before this court, the State argues that the circuit court erred in finding section 11-23.5(b) facially unconstitutional because the public distribution of truly private facts is not constitutionally protected. In the alternative, the State asserts that, even if such speech is protected, section 11-23.5(b) is constitutionally valid because it is narrowly tailored to serve a compelling government interest.

¶ 13 Defendant responds by contending that the circuit court correctly found the statute to be unconstitutional because it outlaws protected content-based speech in violation of the United States and Illinois Constitutions. U.S. Const., amend. I ; Ill. Const. 1970, art. I, § 4. She further argues that the distribution of nude images that have been disclosed to another person is constitutionally protected because such images are not truly private facts as the State contends.

¶ 14 The issue of whether a statute is constitutional presents a question of law, which we review de novo . People v. Minnis , 2016 IL 119563, ¶ 21, 409 Ill.Dec. 60, 67 N.E.3d 272. All statutes are presumed to be constitutional, and the party challenging a statute's constitutionality bears the burden of clearly establishing its invalidity. Id. In addition, a court must construe a statute so as to uphold its constitutionality, if reasonably possible. Id.

¶ 15 To resolve this appeal, we must construe section 11-23.5(b) because a court cannot determine whether a statute reaches beyond constitutional limits without first knowing what the statute covers. Id. ¶ 25 (citing United States v. Stevens , 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ). When presented with an issue of statutory construction, this court's primary objective is to ascertain and give effect to the intent of the legislature. Oswald v. Hamer , 2018 IL 122203, ¶ 10, 425 Ill.Dec. 626, 115 N.E.3d 181 ; Minnis , 2016 IL 119563, ¶ 25, 409 Ill.Dec. 60, 67 N.E.3d 272. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Oswald , 2018 IL 122203, ¶ 10, 425 Ill.Dec. 626, 115 N.E.3d 181 ; Minnis , 2016 IL 119563, ¶ 25, 409 Ill.Dec. 60, 67 N.E.3d 272. A court will not read language in isolation and must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions. Carmichael v. Laborers' & Retirement Board Employees' Annuity & Benefit Fund , 2018 IL 122793, ¶ 35, 429 Ill.Dec. 677, 125 N.E.3d 383 ; Oswald , 2018 IL 122203, ¶ 10, 425 Ill.Dec. 626, 115 N.E.3d 181. Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be rendered superfluous. Oswald , 2018 IL 122203, ¶ 10, 425 Ill.Dec. 626, 115 N.E.3d 181 ; Murphy-Hylton v. Lieberman Management Services, Inc. , 2016 IL 120394, ¶ 25, 410 Ill.Dec. 937, 72 N.E.3d 323. Additionally, we must presume that the legislature did not intend to create absurd, inconvenient, or unjust results. Carmichael , 2018 IL 122793, ¶ 35, 429 Ill.Dec. 677, 125 N.E.3d 383 ; Minnis , 2016 IL 119563, ¶ 25, 409 Ill.Dec. 60, 67 N.E.3d 272. It is also proper for the court to consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Carmichael , 2018 IL 122793, ¶ 35, 429 Ill.Dec. 677, 125 N.E.3d 383 ; Murphy-Hylton , 2016 IL 120394, ¶ 25, 410 Ill.Dec. 937, 72 N.E.3d 323.

¶ 16 A. The Necessity for the Law

¶ 17 Section 11-23.5 addresses the problem of nonconsensual dissemination of private sexual images, which is colloquially referred to as "revenge porn." Generally, the crime involves images originally obtained without consent, such as by use of hidden cameras or victim coercion, and images originally obtained with consent, usually within the context of a private or confidential relationship. Once obtained, these images are subsequently distributed without consent. Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn , 49 Wake Forest L. Rev. 345, 346 (2014) ; see Adrienne N. Kitchen, The Need to Criminalize Revenge Porn: How a Law Protecting Victims Can Avoid Running Afoul of the First Amendment , 90 Chi.-Kent L. Rev. 247, 247-48 (2015).

¶ 18 The colloquial term "revenge porn" obscures the gist of the crime:

"In essence, the crux of the definition of revenge porn lies in the fact that the victim did not consent to its distribution —though the victim may have consented to its recording or may have taken the photo or video themselves. As a result, the rise of revenge porn has (unsurprisingly) gone hand-in-hand with the increasing use of social media and the Internet, on which people constantly exchange ideas and images without asking permission from the originator." (Emphasis in original.) Christian Nisttáhuz, Fifty States of Gray: A Comparative Analysis of ‘Revenge-Porn’ Legislation Throughout the United States and Texas's Relationship Privacy Act , 50 Tex. Tech. L. Rev. 333, 337 (2018).

Indeed, the term "revenge porn," though commonly used, is misleading in two respects. First, "revenge" connotes personal vengeance. However, perpetrators may be motivated by a desire for profit, notoriety, entertainment, or for no specific reason at all. The only common factor is that they act without the consent of the person depicted. Second, "porn" misleadingly suggests that...