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720 ILCS 5/11-23.5(b) (2016) is not overbroad. The statute prohibits a certain and limited category of knowing conduct that involves the unauthorized and intentional dissemination of an intensely personal image of another person. It encompasses only an image of a private and sexual nature, which the disseminator must know or understand is to remain private and which is disclosed without the consent of the person depicted in the image. Given the narrowly focused scope of section 11-23.5(b), the statute does not prohibit a substantial amount of protected speech when judged in relation to the statute's legitimate sweep. As such, it does not burden substantially more speech than necessary to advance its substantial governmental interest.
Defendant was charged with violating section 11-23.5(b) of the Criminal Code of 2012 (720 ILCS 5/11-23.5(b) (West 2016)), which criminalizes the nonconsensual dissemination of private sexual images. On defendant's motion, the circuit court of McHenry County dismissed the charge, finding that provision facially unconstitutional as an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois Constitutions. The State filed a direct appeal challenging the judgment of the circuit court.
Was section 11-23.5(b) of the Criminal Code of 2012 (720 ILCS 5/11-23.5(b) (West 2016)) facially unconstitutional as an impermissible restriction on the right to free speech as guaranteed by the United States and Illinois Constitutions?
The judgment was reversed and remanded. The court held that 720 ILCS 5/11-23.5(b) (2016) implicated the freedom of speech and the targeted speech did not fit into any U.S. Const. amend. I categorical exception. The court further held that the statute was subject to an intermediate level of scrutiny because the statute was a content-neutral time, place, and manner restriction, and the statute regulated a purely private matter. According to the court, the appropriate standard to apply was the intermediate level of First Amendment scrutiny where the statute did not pose such inherent dangers to free expression. A criminal law was necessary to combat the evils of nonconsensual dissemination of private sexual images and section 11-23.5 was narrowly tailored to further the important governmental interest identified by the legislature. The court held that Section 11-23.5 was not overbroad or void for vagueness and did not restrict the rights to free speech and due process.