In late May 2016, Bethany Austin and her fiance Matthew Rychlik split up. But they couldn’t agree on how to tell their family and friends.

Austin learned that Rychlik, with whom she had been sharing a home for seven years, was having an affair with a neighbor. Rychlik wanted to tell family and friends that it was a mutual decision, and Austin wanted to tell them the truth, that Rychlik had cheated 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 that he was “sleeping at another girl’s house” because Austin “never cooks or does house chores,” NPR reported.

Austin said she then 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. 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 or sextortion.

These criminal cyberoffenses, engendered by emerging technology, enable abusers to threaten, harass and coerce their victims.

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

‘Revenge porn’ statutes

Appeals courts are beginning to take up cases involving the constitutionality of “revenge porn” statutes. Legislation criminalizing these actions has gained traction in much of the country. 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.

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.

“Anytime you restrict speech on the basis of what is said or shown, it’s presumptively unconstitutional,” said Andrew Koppelman, a law professor at Northwestern University who wrote 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 the victims’ rights law firm C.A. Goldberg. 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.”

There are many variations in revenge-porn laws, 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 Washington 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.”

‘It would be tragic to decriminalize revenge porn’

Harassment, however, is already criminalized federally and in all 50 states. Revenge-porn laws aren’t necessary for these offenses to be charged as such.

In 2015, Texas passed a law requiring revenge-porn images to have an identifiable victim and the victim to have had a reasonable expectation the photos would remain private. The legislation was challenged, and the case is 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 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 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.”

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