Austin v. Illinois

Citation

State of Illinois v. Austin, 2019 WL 5287962 (Illinois Sup. Ct. 2019), petition for certiorari filed, No. 19-1029 (U.S. Sup.Ct., Feb. 14, 2020)

Summary

Illinois Supreme Court held that the law did not violate the First Amendment. The Illinois Supreme Court held that although the statute is content-based on its face and would otherwise be subject to strict scrutiny, the statute was subject only to intermediate scrutiny for two reasons. First, the court held that the statute is “content-neutral” because it has a beneficial intent and because criminal liability is imposed based on “the manner of the image’s acquisition and publication and not its content.” Second, the court held that “the statute regulates a purely private concern.” The court then held that since the law satisfied intermediate scrutiny, a “know or should know” standard for knowledge was permissible.

On March 19, 2020, Media Coalition filed an amicus brief in support of a petition for certiorari seeking review of the Illinois Supreme Court’s decision upholding the state’s law making it a crime to distribute nude images of a person if the publisher knew or should have known that the person in the image did not consent to the publication.

The amicus brief

The brief urges the Supreme Court to review the decision of the Illinois Supreme Court because the basis of the court’s decision ignores well-established First Amendment principles. Amici ask that the writ be granted so that the U.S. Supreme Court can reiterate that:

• Content-based restrictions on speech are subject to “strict scrutiny,” and there is no privacy exception to the principle, Reed v. Town of Gilbert, 135 S.Ct. 2218, 2228 (2015);
• “Time, place, and manner” restrictions on speech are subject to strict scrutiny unless they can be “justified without reference to the content of the regulated speech,” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); and
• A restriction on speech cannot survive strict scrutiny unless it is “narrowly tailored to serve compelling state interests,” Reed, 135 S.Ct. at 2226; R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992).

The brief also explains how this decision will inevitably have a chilling effect on all of the media. As a practical matter, any posting on the internet by any news source is available nationally, so any image that can be accessed in Illinois would be subject to this law even if neither the media nor the person depicted in the image had any connection to Illinois. Second, the decision sanctions the use of a negligence standard for determining guilt, which invites the judge and jury to displace the editors and publishers, subject to a 3-year prison sentence.

The brief was signed by American Booksellers Association, Association of American Publishers, The Authors Guild, Comic Book Legal Defense Fund, Freedom to Read Foundation, Media Coalition Foundation, and National Press Photographers Association.

There were four other amicus briefs filed in support of the cert petition:

• The Cato Institute and DKT Liberty Project
• First Amendment Lawyers Association and the Marion B. Brechner First Amendment Project
• Institute for Justice
• Woodhull Freedom Foundation

Background

This is a criminal prosecution under the Illinois “intimate images” (“revenge porn”) statute. Ms. Austin and her fiance, who lived together, shared a cloud account that saved all of the emails and texts they received. Ms. Austin broke off their engagement when she learned that her fiance was receiving nude images from a woman who lived in the neighborhood with whom he was in a relationship. Her fiance told family and friends that they ended their engagement because Ms. Austin stopped cooking and cleaning and that she was “crazy.” In response, Ms. Austin sent a letter and copies of a few pictures to several members of her fiance’s family. One cousin showed the pictures to her fiance, who then reported her to the police. Ms. Austin was then charged with violating Illinois law barring the dissemination of nude images without the consent of the person in the image.

The trial judge dismissed the case, finding that the statute violated the First Amendment in a detailed and thorough decision. The Illinois Supreme Court reversed, 5-2, upholding the statute in a decision that runs contrary to established U.S. Supreme Court precedent.

Most recent action

On October 5, 2020, the U.S. Supreme Court denied Austin’s petition for certiorari.

On April 2, 2020, the U.S. Supreme Court directed Illinois to file a response on or before May 3. The U.S. Supreme Court rules permit the respondent to file a brief in opposition to the petition. The state of Illinois waived this right.

The petition for certiorari was filed in the U.S. Supreme Court on behalf of Ms. Austin on February 14, 2020.