Did the appellate court err in applying intermediate scrutiny to a content-based statute criminalizing photographs of children, and does the statute violate the First Amendment under strict scrutiny?

QUESTION PRESENTED FOR REVIEW This Court has held that a statute restricting photographs, videos, or sound recordings is presumptively invalid under the First Amendment to the Constitution, and the government bears the burden to rebut that presumption. U.S. 7. Sterens, 559 U.S. 460, (2010); U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 8038, 817 (2000). “As with pictures, films, paintings, drawings, and engravings, both oral utterances and the printed word have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution.” Kaplan v. California, 413 U.S. 115, 119-20 (1973). To survive a constitutional challenge to a statute that infringes upon a fundamental right, that statute must meet the “strict scrutiny” standard, which requires that it be “narrowly tailored” to a “compelling government interest.” Reed v. Town of Gilbert, 576 U.S. 155, 162 (2015). In this case, the Illinois Appellate Court erroneously applied intermediate scrutiny review to uphold the constitutionality of a statute criminalizing a “child sex offender” from “photograph[ing], videotap[ing], or tak[ing] a digital image of a child...without the consent of the parent or guardian.” 720 ILCS 5/11-24(3) (2016). Because the statute prohibited only photographs of children, it was content-based, and the court should have employed strict scrutiny analysis and found the statute was not narrowly tailored to a compelling government interest and, therefore, violated the First Amendment. People v. Gregory A. Rollins, 2021 IL App (2d) 181040, 11 25-26. Here, the petitioner took a non-obscene, nonpornographic photograph of a fully-clothed minor in a public place and later published that photograph to the internet. This case presents important questions involving the application of the First i Amendment to the Constitution to a state statute: (a) did the appellate court err in finding this statute was subject to intermediate scrutiny, and (b) in applying the proper standard of strict scrutiny, does this statute violate the First Amendment on its face? Moreover, this Court should grant review where the decision of the Illinois Appellate Court conflicts with that of the Wisconsin Court of Appeals, which invalidated a substantially similar statute on First Amendment grounds. Wisconsin uv. Oatman, 2015 WI App 76. ii