neutral, even if it has an incidental effect on some speakers or messages but not
others.” Ward, 491 U.S. at 791 (citing City of Renton, 475 U.S. at 47-48).
¶ 47
We find City of Renton instructive. That case involved the first amendment
validity of a Renton, Washington, zoning regulation of adult movie theaters. The
Supreme Court observed that the Renton ordinance “does not appear to fit neatly
into either the ‘content-based’ or the ‘content-neutral’ category. To be sure, the
ordinance treats theaters that specialize in adult films differently from other kinds
of theaters.” City of Renton, 475 U.S. at 47. Nevertheless, the Court concluded that
the ordinance was “aimed not at the content of the films shown at ‘adult motion
picture theatres,’ but rather at the secondary effects of such theaters on the
surrounding community.” (Emphases in original.) Id. The Supreme Court agreed
with the lower court that “the City Council’s ‘predominate concerns’ were with the
secondary effects of adult theaters, and not with the content of adult films
themselves.” (Emphasis in original.) Id.
¶ 48
Further, in Turner Broadcasting System, the Court recognized that
“[r]egulations that discriminate among media, or among different speakers within
a single medium, often present serious First Amendment concerns.” Turner
Broadcasting System, 512 U.S. at 659. Nevertheless, the Court further instructed
that “[i]t would be error to conclude, however, that the First Amendment mandates
strict scrutiny for any speech regulation that applies to one medium (or a subset
thereof) but not others.” Id. at 660. These cases instruct that the proper focus is on
whether the government has addressed a category of speech to suppress discussion
of that topic.
¶ 49
In the case at bar, section 11-23.5(b) is justified on the grounds of protecting
privacy. Section 11-23.5(b) distinguishes the dissemination of a sexual image not
based on the content of the image itself but, rather, based on whether the
disseminator obtained the image under circumstances in which a reasonable person
would know that the image was to remain private and knows or should have known
that the person in the image has not consented to the dissemination. 720 ILCS 5/1123.5(b)(2), (b)(3) (West 2016). There is no criminal liability for the dissemination
of the very same image obtained and distributed with consent. The manner of the
image’s acquisition and publication, and not its content, is thus crucial to the
illegality of its dissemination. See, e.g., Turner Broadcasting System, 512 U.S. at
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