¶ 31
The United States Supreme Court has held that the dissemination of information
is speech within the meaning of the first amendment. Sorrell v. IMS Health, Inc.,
564 U.S. 552, 570 (2011); see Bartnicki v. Vopper, 532 U.S. 514, 527 (2001).
Accordingly, “[a]n individual’s right to speak is implicated when information he or
she possesses is subjected to ‘restraints on the way in which the information might
be used or disseminated.’ ” Sorrell, 564 U.S. at 568 (quoting Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 32 (1984)). Also, the Supreme Court has held that first
amendment protections for speech extend fully to Internet communications See
Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (explaining that
Supreme Court case law “provide[s] no basis for qualifying the level of First
Amendment scrutiny that should be applied to this medium”); Minnis, 2016 IL
119563, ¶ 23 (same). We also recognize that “whatever the challenges of applying
the Constitution to ever-advancing technology,” the basic first amendment
principles of freedom of speech do not vary “when a new and different medium for
communication appears.” Brown v. Entertainment Merchants Ass’n, 564 U.S. 786,
790 (2011).
¶ 32
1. No Categorical Exception
¶ 33
In the case at bar, the State asks this court to recognize the nonconsensual
dissemination of private sexual images as “a category of speech that has not been
protected as a historical matter.” There are categories of speech that are “ ‘of such
slight social value as a step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality.’ ” R.A.V., 505
U.S. at 383 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
These categories include incitement, obscenity, defamation, speech integral to
criminal conduct, fighting words, child pornography, fraud, true threats, and speech
presenting some grave and imminent threat the government has the power to
prevent. United States v. Alvarez, 567 U.S. 709, 717 (2012) (collecting cases);
Stevens, 559 U.S. at 468 (same). These categories of speech are well-defined and
narrowly limited, and “ ‘the prevention and punishment of which have never been
thought to raise any Constitutional problem.’ ” Stevens, 559 U.S. at 468-69 (quoting
Chaplinsky, 315 U.S. at 571-72). These categories are outside the area of
constitutionally protected speech, and the protection of the first amendment does
not extend to them. R.A.V., 505 U.S. at 383.
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