in which a reasonable person would know or understand that it was to remain
private. Id. § 11-23.5(b)(2). Fifth, 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. Id. § 11-23.5(b)(3).
¶ 106
Given this broad compendium of exacting elements and conditions necessary
to prove a violation of section 11-23.5(b), we conclude that a wrongful motive or
purpose is inherent in the act of disseminating an intensely personal image without
the consent of the person portrayed. See Culver, 2018 WI App 55, ¶ 22. In our view,
section 11-23.5(b) implicitly includes an illicit motive or malicious purpose, and
the inclusion of an explicit motive to cause harm would not appreciably narrow its
scope. See id.
¶ 107
In addition, as we have already explained, the express requirement that the
dissemination be intentional severely limits the likelihood that a person will violate
the statute inadvertently or accidentally. Such unusual situations do not
demonstrate substantial overbreadth and should be addressed on a case-by-case
basis. See New York State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988);
see also Ferber, 458 U.S. at 773-74; Broadrick, 413 U.S. at 615-16.
¶ 108
The circuit court further observed that section 11-23.5(b) does not expressly
require a showing of any specific harm to the victim. Again, the circuit court did
not cite any legal authority for the proposition that inclusion of an element of harm
is necessary to avoid a finding of overbreadth. Moreover, we believe that the
unauthorized dissemination of a private sexual image, which by definition must
depict a person while nude, seminude, or engaged in sexually explicit activity, is
presumptively harmful. Culver, 2018 WI App 55, ¶ 24.
¶ 109
In evaluating the competing social costs at stake, we have held that Illinois has
a substantial governmental interest in protecting the privacy of persons who have
not consented to the dissemination of their private sexual images. Although
defendant claims that section 11-23.5(b) will deter the free speech of persons who
have legally and unconditionally obtained the private sexual images of others, her
assertion is unpersuasive given the limited application of the statute and the fact
that any possible overbreadth is minor when considered in light of the statute’s
legitimate sweep. Defendant also contends that section 11-23.5 “criminalizes an
adult complainant’s own stupidity at the expense of the [f]irst [a]mendent.” Yet this
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