Supreme Court may take up its first ‘revenge porn’ case

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 such statutes on First Amendment grounds.

A case involving an Illinois couple could become the first to bring a revenge porn statute before the U.S. Supreme Court.

In May 2016, Bethany Austin learned that her fiance had been unfaithful, so she called off their upcoming wedding.

The fiance told the couple’s friends that Austin was “crazy.” In response, Austin sent their families a letter containing text messages between him and his mistress and nude photos of the woman.

Austin was charged with “nonconsensual dissemination of private sexual images,” a felony. She argued that the law unconstitutionally restricted her free speech.

The First Amendment to the Constitution protects freedom of speech, even when it is “offensive or disagreeable,” but courts have held that it doesn’t protect threats, obscenity, incitement of violence and public disclosure of private information.

However, when the government imposes a content-based restriction, it must meet a high standard of serving a “compelling government interest” and must be as minimal as possible.

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

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 that the statute “gives controlling men — like Bethany Austin’s ex-fiance — yet another legal tool for victimizing their intimate partners.”

Many revenge porn laws in other states have survived legal challenges, but just this week, a court of appeals in Minnesota ruled 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.

PATRICK SEMANSKY / AP FILE An Illinois case, in which a woman was charged with a felony for sending out texts between her ex-fiance and his mistress, could become the U.S. Supreme Court’s first look into “revenge porn.”