Cir. 1998); see also National Archives & Records Administration v. Favish, 541
U.S. 157, 168-69 (2004) (collecting authorities holding that it is the privacy interest
of living family members—not the dead—that protects against public disclosure of
photographs and autopsy reports of deceased persons). In light of the fact that a
deceased person cannot suffer the types of injuries that section 11-23.5(b) is
intended to safeguard against, the statute does not apply to the hypothetical situation
suggested by the circuit court.
¶ 97
The circuit court also questioned whether section 11-23.5(b) would criminalize
the sharing of nude sketches of a person’s grandmother if his or her grandfather had
been an artist such as Andrew Wyeth, who created the “Helga Pictures” that
remained secret for many years, or Pablo Picasso. Again, we must consider the
reason for the law, the problems sought to be remedied, the purposes to be achieved,
and the consequences of construing the statute one way or another. Casas, 2017 IL
120797, ¶ 18. Given that a model who poses for an artist is aware of that person’s
profession, it will generally be understood that the sketch or painting may be
displayed to others at some point in time. In such a circumstance, the statute would
not apply because a reasonable person would not know or understand that the image
was to remain private. The same is true of the circuit court’s reference to images
published in Playboy Magazine and in movies or programs depicting nudity. The
people portrayed in such images have clearly consented to public disclosure and
dissemination. Indeed, that is the whole point of appearing in such a photograph or
film.
¶ 98
And, even if the publication of Wyeth’s secret Helga collection would fall
within the statute’s purview, such a situation is rare and should be addressed on a
case-by-case basis. See Ferber, 458 U.S. at 773-74 (holding that impermissible
applications of a statute that do not amount to more than a small fraction of the
materials within the statute’s reach should be cured through case-by-case analysis);
see also Broadrick, 413 U.S. at 615-16; People v. Anderson, 148 Ill. 2d 15, 26-27
(1992). A statute will not be held to be overbroad simply because some
impermissible applications are conceivable. Ferber, 458 U.S. at 772.
¶ 99
The animating purpose of section 11-23.5(b) is to protect living persons from
being victimized by harassment, discrimination, embarrassment, and possible
violence resulting from the privacy violation occasioned by the nonconsensual
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