John Kramer
John Kramer · August 31, 2020

Arlington, Va.—In recent years, nearly every state in the nation has enacted laws criminalizing nonconsensual pornography—nude or sexually explicit images shared without the subject’s consent. These laws seek to address a real problem. In upholding Illinois’s statute, however, the Illinois Supreme Court in People v. Bethany Austin announced a rule that reaches far beyond intimate photos:  According to a majority of the Illinois court, the government has special latitude to punish any speech “of purely private significance.” The U.S. Supreme Court is scheduled to consider whether to take the case on September 29, 2020.

Austin arises from unusual circumstances. In 2016, Bethany Austin discovered that her fiancé was cheating on her; intimate photos of another woman surfaced on the couple’s shared iPad. Ms. Austin broke off the engagement. And soon after, her now-ex-fiancé allegedly began telling mutual friends that the relationship ended because Ms. Austin was “crazy” and had stopped doing housework. To tell her side of the story, Ms. Austin wrote a four-page letter to a small number of close friends and family. In it, she described what really happened. To prove she wasn’t crazy, she also included printouts of some of the texts and intimate photos.

At the ex-fiancé’s urging, Illinois law enforcement criminally charged Ms. Austin with violating the state’s nonconsensual-pornography law. And on appeal, the Illinois Supreme Court upheld the law on the strength of a sweeping rule:  The government has special leeway to punish speech “of purely private significance.”

If left undisturbed, the Illinois court’s decision would give government officials unprecedented power to criminalize not just nonconsensual pornography, but most of our day-to-day speech. That is why the Institute for Justice (IJ) submitted a friend-of-the-court brief to the U.S. Supreme Court in Ms. Austin’s case. Taking no position on Illinois’s nonconsensual-pornography law, IJ’s brief addresses the implications of the Illinois court’s ruling for speech more broadly. By giving regulators leeway to single out and punish speech of “private significance”—the brief submits—the Illinois Supreme Court watered down First Amendment protections for most of what we say, write, hear, and read.

“For decades, the U.S. Supreme Court has stressed that governments get no latitude to criminalize speech based on value-judgments about the topic’s public or private importance,” said IJ Attorney Sam Gedge. “That was true of lurid magazines in the ’40s, of dial-a-porn in the ’80s, of violent videogames in the 2000s. Whatever power government may have to address nonconsensual pornography, that power cannot be based on an across-the-board rule that devalues speech of ‘private significance.’”

“Much of the Institute for Justice’s free-speech practice centers on protecting individuals’ right to speak about matters that—while important—are of ‘private significance,’” said IJ Attorney Will Aronin. “Our clients give diet advice, tips about animal care, and instruction in horseshoeing. By granting regulators leeway to single out whatever speech can be characterized as private, the Illinois Supreme Court blessed a rule that is as novel as it is dangerous.”