Is revenge porn protected by the constitution? Some states might say yes

Bethany Austin learned her fiance had been unfaithful in late-May 2016.

After sharing a home with him for seven years, Matthew Rychlik was having an affair with a neighbor. The relationship was unsalvageable according to court documents; they even argued over how to call off the wedding - Rychlik wanted to tell family and friends it was mutual, Austin wanted to tell them the truth, that Rychlik was cheating on her.

But the situation escalated, and Rychlik told the world in his own way, from his own point of view. According to court documents, he spread rumors about his "crazy" fiancee and announced he was "sleeping at another girl's house" because Austin "never cooks or does house chores," NPR reported.

Then, Bethany Austin admits she sent friends and family a four-page letter that contained text messages between Rychlik and the neighbor, Elizabeth Dreher, including nude photos of Dreher. Austin had access to all of their conversations and photos because she shared an iCloud account with Rychlik, court documents show. Because of that, she received all of his conversations with the neighbor on her own phone. Rychlik and Dreher acknowledged they knew this.

Austin was arrested and charged with a felony: "nonconsensual dissemination of private sexual images," otherwise known as revenge porn.

In a motion filed in March at the Supreme Court of Illinois, Austin challenged the revenge-porn law itself, calling it unconstitutional. Yes, she was a scorned woman. But according to court documents, Austin argued she was exercising "her freedom of speech."

Appeals courts are beginning to take up cases involving the constitutionality of "revenge porn" statutes. Legislation criminalizing these actions has gained traction in most of America. Forty five states, including Illinois, have revenge-porn laws in place. The U.S. Supreme Court has yet to hear a case on the issue of revenge porn.

The Constitution protects freedom of speech, even when it is "offensive or disagreeable." But rules have exceptions; the First Amendment does not protect certain speech, such as threats, obscenity, incitement of violence and public disclosure of private information.

If the government is imposing a restriction on a specific statement or image, it must satisfy the strictest, and often insurmountable, level of legal scrutiny. The restriction must serve a "compelling government interest" and must be as minimal as possible.

"Any time you restrict speech on the basis of what is said or shown, it's presumptively unconstitutional," said Andrew Koppelman, law professor at Northwestern University who authored a law-review article on the constitutionality of revenge-porn statutes. But the First Amendment allows the government to limit public disclosure of private, often intimate, information.

"Consider all the criminal laws that relate to sharing health care and financial information without consent," said Carrie Goldberg, owner of victims' rights law firm C.A. Goldberg, PLLC. Revenge-porn criminal laws, she said, are privacy laws that passed because the government has a "compelling interest in protecting the privacy, safety, and health of its citizens."

Emerging technology has created a new category of criminal cyber offenses: revenge porn (referred to as nonconsensual pornography) or sextortion. These offenses enable abusers to threaten, harass and coerce their victims.

And there are many variations in the law, depending on which state you are in, said Mary Anne Franks, president of the Cyber Civil Rights Initiative. Franks crafted a model statute that has served as a template for many of the 45 state laws that criminalize nonconsensual pornography.

Some laws have different words, others have varying penalties. According to Franks, the most significant difference is that some states limit revenge porn to situations in which the perpetrator acts with the intent to harm or harass his or her target, something she called a "very serious mistake" that "fundamentally misunderstands the nature of the abuse."

Those laws limit nonconsensual porn to "harassment," she said in a statement to The Post, but "(s)ome people do it for profit; some do it for entertainment; still others do it to obtain social status. Some of the most notorious purveyors of nonconsensual pornography are men who did not even know the women whose photos they exploited for financial gain."

Most importantly, harassment is already criminalized federally and in all 50 states. Revenge-porn laws aren't necessary for it to be charged as such.

In 2015, Texas passed a law requiring the images to have an identifiable victim, and the victim to have had a reasonable expectation the photo would remain private. The legislation was challenged and the case is still pending in the Texas Court of Criminal Appeals, the state's highest criminal court.

The Vermont Supreme Court ruled last year that sexually explicit images deserve as much privacy as other forms of sensitive information, such as medical records and financial data.

"From a constitutional perspective, it is hard to see a distinction between laws prohibiting nonconsensual disclosure of personal information comprising images of nudity and sexual conduct and those prohibiting disclosure of other categories of nonpublic personal information," the Vermont court wrote in its opinion. "The government's interest in protecting all from disclosure is strong."

Illinois's law is the strongest in the country and does not include the limitation to perpetrators who act with the intent to harass.

The Illinois Supreme Court heard arguments last week over whether the First Amendment protects "revenge porn." A decision is expected in the upcoming months.

"There is nothing about revenge porn that renders it outside the kind of speech the state can criminalize," Goldberg, who is also a member of the advisory board at the Cyber Civil Rights Initiative, wrote to The Washington Post. "The harms I've seen many of my hundreds of clients suffer - loss of employment, excommunication from religious communities, disowned by conservative families - are so major, it would be tragic to decriminalize revenge porn."