Revenge

On the 18th, the Illinois Supreme Court handed down an interesting decision on "revenge porn."  The opinion and dissent are this link.  It is interesting for things the opinion does and does not say.  Many states now have criminal prohibitions on revenge porn.  I am not aware of any states that restrict revenge prose, sexually explicit or not.  The adage about a picture is worth has some merit.  A picture of someone unclothed has greater impact than a statement that I have photos of X having sex that X gave me.  Even filling in the description does not not seem to be as effective as the image of X.  

The Illinois statute does has a somewhat unusual intent requirement.  Most states require the distribution of the photo be made with one or more particular aims, e.g., to harass, humiliate, intimidate, etc.   They require distribution with malice.  Illinois took a different route.  Its statute instead requires that the person who disseminates the image must have known or should have known that the person portrayed in the image has not consented to the dissemination. That is enough, according to the Court because this provision inherently includes an illicit motive or malice.  Setting out a malice requirement would serve no purpose and not appreciably narrow the scope of the statute (11-23.5).  Violation is a Class 4 Felony.  A class 4 felony is punishable by 1-3 years in prison and up to $25,000 fine.   

The Court majority found that the statute controlled distribution of images, so was a time, place, manner regulation due intermediate scrutiny, not content based.  As such, it passed constitutional muster.  (NB, apparently no one really briefed the state constitutional issue, so the Court based its decision on its reading of the doctrines of the First Amendment to the US Constitution.)

There is a movement to criminalize revenge porn and to push it out from under the protections of the First Amendment, because revenge porn does cause serious harms to the victims.  People, mostly women, are humiliated by it, and it leads to awful harassment, social disruption, impairs mental health, and so on.  Certainly a real problem.  But, 3 years in prison?  It runs against the concern about mass incarceration and over-criminalization.  I wonder about the tendency to make things crimes, put people (admittedly kind of creepy people) into jail over these things.  But that is always a difficult line-drawing problem.

The Court discusses civil remedies, finding that they don't really do the job.  They take too long, cost too much, and are too public.  True, I think.  But court records are all presumptively open, so there is the same degree of public.  I suppose we are to count on prosecutorial discretion and good sense in enforcing this -- when prosecutors charge teenagers with distribution of child pornography for sending selfies to friends/lovers, that seems to ask too much.