¶ 79
Subsection (b), quoted earlier, states the elements of the offense. Subsection (b)
is narrowly tailored in several respects so as not to burden more speech than
necessary. First, the images must be “private sexual images” that portray any of
several specific features, including the depiction of a person whose intimate parts
are exposed or visible, in whole or in part, or who is engaged in a sexual act as
defined in the statute. Id. § 11-23.5(a), (b)(1)(C). Therefore, the scope of the statute
is restricted to images that can fairly be characterized as being of a discreet and
personal nature. See Culver, 2018 WI App 55, ¶ 12 (observing that the “private
representation” element in Wisconsin’s nonconsensual dissemination statute,
which is similar to the definition of “private sexual images” in section 11-23.5(b),
narrows the statute’s application). As a consequence, the statute does not apply to
circumstances in which the subject images are not of a private sexual nature.
¶ 80
Second, the person portrayed in the image must be over the age of 18 and
identifiable from the image or information displayed in connection with the image.
720 ILCS 5/11-23.5(b)(1)(A)-(B) (West 2016). The statute is inapplicable if the
image does not contain sufficient information to identify the person depicted.
Therefore, section 11-23.5(b) burdens only speech that targets a specific person.
¶ 81
Third, the image must have been obtained under circumstances in which a
reasonable person would know or understand that it was to remain private. Id. § 1123.5(b)(2). We construe this provision as requiring a reasonable awareness that
privacy is intended by the person depicted. This requirement limits the statute’s
application to the types of personal, direct interactions or communications that are
typically involved in a close or intimate relationship. See Minnis, 2016 IL 119563,
¶ 21 (recognizing that, where possible, a court must construe a statute so as to
uphold its constitutionality). Thus, this provision ensures that the statute is
inapplicable if the image was obtained under circumstances where disclosure to
another is a natural and expected outcome.
¶ 82
Fourth, the person who disseminates such an image must have known or should
have known that the person portrayed in the image has not consented to the
dissemination. 720 ILCS 5/11-23.5(b)(3) (West 2016). The lack of consent to
dissemination forms the core of the statute and its protective purpose. As with the
expectation of privacy discussed above, we construe this provision to incorporate a
reasonable awareness of the lack of consent to dissemination. Where the person
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