challenge a state’s interest in protecting the privacy of personal images of one’s
body that are intended to be private—and specifically, protecting individuals from
the nonconsensual publication on websites accessible by the public.” State v.
Culver, 2018 WI App 55, ¶ 19, 384 Wis. 2d 222, 918 N.W.2d 103. Indeed, courts
have concluded that the government interest in this regard is “compelling.”
VanBuren, 2018 VT 95, ¶ 59; People v. Iniguez, 202 Cal. Rptr. 3d 237, 243 (App.
Dep’t Super. Ct. 2016). We have no difficulty in concluding that section 11-23.5
serves a substantial government interest unrelated to the suppression of speech.
¶ 70
We next consider whether section 11-23.5 is narrowly tailored to serve this
substantial government interest without unnecessarily interfering with first
amendment freedoms. In contending that the statute fails strict scrutiny, defendant
argues that a penal statute is not the least restrictive means to accomplish the alleged
compelling government interest. We earlier concluded that this contention is
misplaced. Unlike strict scrutiny, which requires the least restrictive means to
accomplish a compelling government interest, the “narrowly tailored” requirement
of intermediate scrutiny does not require that the regulation be the least speechrestrictive means of advancing the government interest. Rather, the “narrowly
tailored” requirement of intermediate scrutiny is satisfied so long as the law
promotes a substantial government interest that would be achieved less effectively
absent the law. Turner Broadcasting System, 512 U.S. at 662; Ward, 491 U.S. at
798-99; Minnis, 2016 IL 119563, ¶ 42. Stated otherwise, the law must reasonably
fit the substantial government interest. McCutcheon, 572 U.S. at ___, 134 S. Ct. at
1456-57.
¶ 71
We conclude that the substantial government interest of protecting Illinois
residents from nonconsensual dissemination of private sexual images would be
achieved less effectively absent section 11-23.5. “As we have noted in the past, ‘the
legislature has broad discretion to determine not only what the public interest and
welfare require, but to determine the means needed to serve such interest.’ ” People
v. McCarty, 223 Ill. 2d 109, 140 (2006) (quoting Chicago National League Ball
Club, 108 Ill. 2d at 364). It is quite established that “the legislature, under the State’s
police power, has wide discretion to classify offenses and prescribe penalties for
the defined offenses.” People v. La Pointe, 88 Ill. 2d 482, 500 (1981); see People
v. Simmons, 145 Ill. 2d 264, 269-70 (1991) (collecting cases).
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