Massa, J.
In the modern age of social media, when anyone with a phone can instantaneously publish images worldwide, new potential harms arise unimaginable a generation ago. One such unfortunate phenomenon has come to be known as “revenge porn.” To punish and deter it, the General Assembly in 2019 enacted Indiana Code section 35-45-4-8, which criminalizes the non-consensual distribution of an “intimate image.” In this case, Conner Katz—unbeknownst to his girlfriend—captured cell phone video of her performing oral sex on him, then sent it to another person. He was charged under the statute, and in a pre-trial motion to dismiss, challenged its constitutionality on free speech grounds. The trial court dismissed, finding the entire statute violated the state and federal constitutions. The State disagreed and appealed. Katz cross-appealed, arguing we need not reach the question of constitutionality because dismissal should be upheld for failure to state an offense. Because we conclude the State sufficiently alleged an offense, and because we find the statute constitutional, we reverse and remand.
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This Court has repeatedly “refused to adjudicate constitutional questions when presented with other dispositive issues.” Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 108 (Ind. 1998). Adhering to this doctrine of judicial restraint, we will first determine whether the State sufficiently alleged an offense. See Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) (“[C]onstitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues still alive.”). Because we conclude the State sufficiently alleged an offense, we will then address the constitutionality of the statute, which we ultimately uphold.
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Katz has argued the State failed to allege an offense because R.S. was not identifiable, and “neither R.S.’s mouth nor Katz’ [sic] sex organ were [sic] shown.” Appellee’s Br. at 19. Whether the image sufficiently depicted an “intimate image” is an evidentiary question for the jury at trial; it is not properly raised by a motion to dismiss. See Schutz v. State, 275 Ind. 9, 13, 413 N.E.2d 913, 916 (1981) (noting an “information may not be questioned on the ground of insufficient evidence”); State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003) (“Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss.”). Here, the State’s charging information alleged that “[o]n or about or between March 12, 2020, and March 15, 2020 . . . Conner Katz, being a person who knows or reasonably should know that [R.S.] did not consent to the distribution of an intimate image of her, did distribute the intimate image of [R.S.]” Appellant’s App. Vol. II, p.8. Per Indiana Code section 35- 45-4-8(d), a person who “(1) knows or reasonably should know that an individual depicted in an intimate image does not consent to the distribution of the intimate image; and (2) distributes the intimate image; commits distribution of an intimate image.” Because the charging information sufficiently alleges the offense, the trial court did not abuse its discretion in denying Katz’s motion to dismiss.
Because we only need to reach the federal constitutional analysis if the Indiana Constitution does not resolve the claim, we begin with Katz’s argument under Article 1, Section 9 of the Indiana Constitution.
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In response to Katz’s motion to dismiss and the trial court’s order blending overbreadth analysis with cites to the Indiana Constitution, the State asks this Court to find the statute “constitutional under an Article 1, Section 9 overbreadth challenge.” Appellant’s Br. at 27. This Court has found “no persuasive precedent for the proposition that federal ‘overbreadth analysis’ has taken root in the jurisprudence of the Indiana Constitution.” Price, 622 N.E.2d at 958. Instead, “[o]nce an Indiana constitutional challenge is properly raised, a court should focus on the actual operation of the statute at issue and refrain from speculating about hypothetical applications.” Id. And unless a court concludes “the statute before it is incapable of constitutional application, it should limit itself to vindicating the rights of the party before it.” Id. These restrictions “are self-imposed in light of our perception of the function of the judicial department of our state government and the special aptitude of courts to decide concrete controversies between interested parties.” Id. Thus, we only consider whether the statute’s application here was constitutional.
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This case presents a unique opportunity to underscore our constitutional independence, as state constitutions are typically thought of as only providing more protection than the United States Constitution. But “[s]tate constitutions create independent limits on state and local power, limits that may do more or less than their counterpart guarantees in the Federal Constitution.” Sutton, supra, at 173 (emphasis added). Here, Indiana’s Constitution ultimately provides less protection to Katz—by way of a lower standard of scrutiny—than the Federal Constitution. But this does not mean the Indiana constitutional claim lacks value. Raising it allows this Court to cultivate its independent nature, so it may then provide a basis for relief in other cases. Rush & Miller, supra, at 382. State constitutions must provide protections that stand independent of federal constitutional guarantees for federalism’s “protection against overconcentration of authority” to be fully realized. Id. at 380.
For Article 1, Section 9 to apply, the state action must have restricted Katz’s opportunity to engage in expressive activity.
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The text of the former Section 9 epitomized this natural rights approach, providing that the “free communication of thoughts, and opinions, is one of the invaluable rights of man.” Ind. Const. art. I, § 9 (1816). Natural rights, such as the freedom of speech, were understood to be freedoms “an individual could enjoy as a human in the absence of government.” Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 919 (1993). While Section 9 does enshrine political speech as a core value—something this Court gives heightened protection under the “abuse” inquiry—it would be illogical to understand Section 9 as only protecting expression about politics and the government. Moreover, no limitations on the kind of protected thoughts and opinions were added with the 1851 constitutional revisions. We understand the free interchange clause to encompass the communication of any thought or opinion, on any topic, through “every conceivable mode of expression.” Whittington, 669 N.E.2d at 1368. Katz’s video depicting sexual activity thus receives protection under Article 1, Section 9. This does not end our inquiry, as we still must determine whether the State has placed a direct and substantial burden on Katz’s ability to express himself, which is the trigger for Section 9 protection.
Just as the “trigger of the right to speak clause is the notion of restriction,” the trigger of the free interchange clause is the notion of restraint. See id. Both clauses focus “on the restrictive impact of state action on an individual’s expressive activity.” Id. This Court has explained that at a minimum, the right to speak “clause is implicated when the State imposes a direct and significant burden on a person’s opportunity to speak his or her mind, in whatever manner the speaker deems most appropriate.” Id. We conclude a similar standard applies to the free interchange clause, which is implicated when the State imposes a direct and significant burden on a person’s opportunity to express one’s thoughts and opinions, in whatever manner the person expressing himself deems most appropriate. Here, the State’s prosecution of Katz more than satisfies this standard of imposing a direct and significant burden on his opportunity to express himself. Therefore, Article 1, Section 9 applies, and we must decide whether Katz’s expressive activity reasonably constituted an “abuse.”
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Under our rationality inquiry, we have no trouble concluding the impingement created by the statute is vastly outweighed by the public health, welfare, and safety served. In Whittington, we dealt with a defendant’s disorderly conduct conviction for loudly speaking during a police investigation of a domestic incident. 669 N.E.2d at 1366. Like here, the defendant’s expressive conduct was not political, so only rationality review was required in “determining whether the [S]tate could reasonably have concluded that Whittington’s expressive activity, because of its volume, was an ‘abuse’ of the right to speak or was, in other words, a threat to peace, safety, and well-being.” Id. at 1371. This Court “easily conclude[d]” that the defendant did not negate “‘every conceivable basis’ for the state action” in his case. Id. (quoting Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994)). We observed that “abating excessive noise is an objective our legislature may legitimately pursue.” Id. (internal quotation marks omitted).
In Whittington, we found it “reasonably conceivable that the loud outbursts in the concrete circumstances of [that] case could have agitated other persons in the apartment, sparked additional disruptions of [the police officer’s] investigation, or interfered with his ability to manage the medical crew and the alleged crime scene.” Id. “The noisy tirade could have threatened the safety of Whittington’s sister by aggravating her trauma or by distracting the medical personnel tending her injury.” Id. Finally, we concluded “the volume of the speech undoubtedly made it highly annoying to all present.” Id. “The [S]tate could therefore have believed Whittington’s outbursts constituted an ‘abuse’ of the right to speak and, as such, fell within the purview of the police power.” Id
We easily conclude that Katz’s expressive activity was an abuse, and he “has not negated ‘every conceivable basis’ for the state action in his case.” Id. (quoting Collins, 644 N.E.2d at 80). The legislature has wide “police powers to protect the health, morals, order, safety, and general welfare of the community.” Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1277 (Ind. 2014); see also Edwards v. Hous. Auth. of Muncie, 215 Ind. 330, 335, 19 N.E.2d 741, 744 (1939). And “it is the province of the [l]egislature to define criminal offenses and to set the penalties for such criminal offenses.” Durrett v. State, 247 Ind. 692, 696–97, 219 N.E.2d 814, 816 (1966). Compared to “abating excessive noise,” Whittington, 669 N.E.2d at 1371 (internal quotation marks omitted), the legitimate legislative objectives pursued here are of a much more serious caliber. “The government’s interest in preventing any intrusions on individual privacy is substantial; it’s at its highest when the invasion of privacy takes the form of nonconsensual pornography.” VanBuren, 214 A.3d at 811. And the accompanying harms of this crime are all well within the State’s power to address. As such, the State’s prosecution of Katz for distribution of an intimate image does not contravene Article 1, Section 9 of the Indiana Constitution. And because the Indiana Constitution does not resolve this case, we must evaluate Katz’s claim under the First Amendment.
“The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech.’” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (quoting U.S. Const. amend. I). Even though this provision explicitly forbids only the abridgment of “speech,” the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Johnson, 491 U.S. at 404. “In evaluating the free speech rights of adults,” the Court has “made it perfectly clear that [s]exual expression which is indecent but not obscene is protected by the First Amendment.” Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 874 (1997) (internal quotation marks omitted). The State does not argue that Katz’s expressive activity is “obscene,” and under the stringent test articulated by the Supreme Court in Miller v. California, this expressive activity is not “obscene.” 413 U.S. at 24. And the protections of the First Amendment also fully extend to Internet communications. Reno, 521 U.S. at 870.
Because Katz’s expression is protected by the First Amendment, we first determine whether non-consensually distributed private intimate images are a new category of unprotected speech. Next, we must determine whether the statute is a content-neutral restriction subject to intermediate scrutiny, or a content-based restriction subject to strict scrutiny. Because we conclude the latter, we then must determine whether the statute satisfies strict scrutiny by being narrowly tailored and serving a compelling government interest. Finally, we consider the statute under the overbreadth doctrine.
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Here, the distribution statute is plainly a content-based restriction, not a content neutral time, place, or manner restriction. The statute criminalizes the distribution of an “intimate image” without a person’s consent, and “intimate image” means a photograph, digital image, or video of an individual that depicts: (1) sexual intercourse, (2) other sexual conduct, or (3) exhibition of the uncovered buttocks, genitals, or the female breast. I.C. § 35-45-4-8(c)(1). “Other sexual conduct” is defined as an act involving “a sex organ of one (1) person and the mouth or anus of another person,” or “the penetration of the sex organ or anus of a person by an object.” I.C. § 35-45-4-8(c)(1)(B); I.C. § 35-31.5-2-221.5. This statute is an “obvious” facial distinction based on the message because it defines regulated speech by subject matter—sexual activity and nudity. Reed, 576 U.S. at 163. The statute does not penalize all disclosure of visual material without another person’s consent, it penalizes only this subset of disclosed images. On its face, this statute “draws distinctions based on the message a speaker conveys.” Id.
Because the statute imposes a content-based restriction on protected speech, it is invalid unless the State can “demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.”
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While the image here was allegedly taken without the victim’s knowledge or consent, even if the image was originally created and sent with consent, the harm of its nonconsensual distribution is substantial. Consent is contextual, and the “consent to create and send a photo or the consent to be photographed by another is one act of consent that cannot be equated with consenting to distribute that photo to others outside of the private relationship.” Austin, 155 N.E.3d at 452 (internal quotation marks omitted). The harm comes from the nonconsensual distribution of an individual’s intimate images, and as previously explained, the potential harms can be severe, including serious psychological, emotional, economic, and physical harm. See Casillas, 952 N.W.2d at 642. The State, working through its well-recognized authority to safeguard its citizens’ health and safety, has a compelling interest in preventing the nonconsensual distribution of intimate images, and all the potential serious harms that accompany this unique crime. Our conclusion is bolstered by the similar conclusions of our sister courts, the numerous and uncontroversial statutes regulating nonconsensual distribution of other private information, and the Supreme Court’s jurisprudence regarding substantial invasion of privacy.
To survive strict scrutiny, the statute must also be narrowly tailored, which means that it is “the least restrictive means for addressing” the government’s interest.
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The statute requires the State to prove a defendant’s reasonable awareness of the lack of consent to distribute, and if a reasonable person would not realize that consent was not given, the statute does not apply. As previously discussed, the statute also does not apply when consent is given to distribute. This limits the statute to the types of personal, direct communications that are typically involved in an intimate relationship, where consent can be reasonably known. “Individuals are highly unlikely to accidentally violate this statute while engaging in otherwise permitted speech.” VanBuren, 214 A.3d at 812. This statute is narrowly tailored to serve the State’s compelling interest in protecting citizens from the harms of nonconsensual pornography; the statute does not violate the First Amendment.
There are “substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (emphasis omitted). To ensure these costs do not swallow the social benefits of declaring a law “overbroad,” the Supreme Court has “vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” United States v. Williams, 553 U.S. 285, 292 (2008). Invalidation for overbreadth is “strong medicine” that has been employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
Overbreadth analysis has been “most commonly and sensibly used, in the First Amendment arena, in cases involving regulations directed at unprotected categories of speech.”
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The Minnesota Supreme Court—when recently upholding a similar statute under strict scrutiny—concluded an “overbreadth analysis is needlessly redundant if a statute has already survived strict scrutiny review.” Casillas, 952 N.W.2d at 646. We agree. The Minnesota Supreme Court noted the lack of any identifiable precedent in which a statute survived strict scrutiny but was struck down as unconstitutionally overbroad and had “great difficulty imagining such a scenario.” Id. And since this case involves protected speech, application of the overbreadth doctrine seems illogical. Even if this Court needed to conduct a full overbreadth analysis, there certainly is not a substantial amount of overbreadth in comparison to the statute’s “plainly legitimate sweep.” Williams, 553 U.S. at 292. Even considering a hypothetical application of the statute to an Anthony Weiner situation, which would be a matter of public and political concern, this alone would not be sufficient to invalidate the statute for overbreadth. The “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Taxpayers for Vincent, 466 U.S. at 800.
Faced with the widespread and growing problem of nonconsensual pornography, the legislature acted within its authority to safeguard the health and safety of its citizens from this unique and serious crime by passing Indiana Code section 35-45-4-8. The State properly charged Katz with violating the statute. And the statute does not violate either the free interchange clause of the Indiana Constitution, or the First Amendment to the United States Constitution. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Rush, C.J., and David, Slaughter, and Goff, JJ., concur