Minnesota Appeals Court Nukes State's Broadly-Written Revenge Porn Law

Free Speech

from the make-better-laws,-lawmakers dept

Revenge porn laws generally aren’t built to last. When crafting these laws, legislators tend to lose sight of the Constitution. Everyone agrees revenge porn is bad, but simply being in agreement isn’t enough when rights are on the line.

Minnesota passed a revenge porn law in 2016. The law barely made it three years before being found unconstitutional by a state court. As usual, the legislature’s inability (or refusal) to narrowly craft a speech restriction has come back to haunt it. KARE 11 reports the state Court of Appeals has undone the Constitutional damage caused by the state’s poorly-written law.

Minnesota’s law against revenge porn is unconstitutional and infringes on First Amendment rights, the state Court of Appeals ruled Monday as it reversed the conviction of a man who circulated explicit photos of a former girlfriend.

The court ruled that the state law was such a broad violation of First Amendment free-speech rights that it couldn’t be fixed by a ruling limiting its scope.

The case deals with Michael Casillas, who used the victim’s passwords to access her accounts to obtain her sexual photos and videos. Casillas threatened to release them. And then he did, sharing one video with an unknown number of people by posting it online.

Casillas was charged and sentenced to 23 months in prison. He appealed, challenging the law that put him there. He has succeeded for now. (The state is already planning to appeal this to the state’s Supreme Court.) The appeals court doesn’t like Casillas, but it also doesn’t like the law. And when it comes to the Constitution, personal distaste for a person’s actions is no excuse for violating free speech rights.

The decision [PDF] says the law is too broad to remain on the books.

In sum, Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers the dissemination of a sexual image with knowledge that the person depicted in the image did not consent to the dissemination and that the image was obtained or created under circumstances in which the person depicted had a reasonable expectation of privacy. But it also covers the dissemination of a sexual image even if the disseminator did not know that the subject of the image did not consent to the dissemination, did not know that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy, and did not cause or intend to cause a specified harm. Given the statute’s application to the latter set of circumstances, its sweep is broad.

The state hoped to salvage its conviction by claiming that the image distributed non-consensually was obscene — something laws can target without troubling the First Amendment as much. The court disagrees.

The state appears to argue that any image of another person who is depicted in a sexual act or whose intimate parts are exposed portrays sexual conduct in a patently offensive way if the image is disseminated without the subject’s consent. Although we agree that such nonconsensual dissemination is offensive, that is not the test for determining whether a work is obscene.

The state also tried to claim the law actually regulated privacy, rather than speech. Wrong, says the court, even if — for the sake of argument — we pretend that you’re right.

The state also contends that Minn. Stat. § 617.261 does not implicate the First Amendment because it is a privacy regulation. But privacy is not one of the recognized “delineated categories” of speech excepted from First Amendment protection.

The court agrees the state has a legitimate interest in deterring the distribution of revenge porn. But a broadly-worded law that criminalizes certain conduct without requiring the government to prove intent is highly-problematic. It’s not enough to say someone should know this speech would “harass” or “frighten” other people. The state has to prove the person engaging in this speech knew this would happen and did it anyway. The state’s revenge porn law does not do that. The court notes similar laws covering “disturbing” speech have been struck down in the past by the state’s top court, both because the intent clause wasn’t limited enough and requirements the state show the victim had suffered actual harm nonexistent.

There’s no inherent expectation of privacy in sexually-explicit images, says the court. Just because they’re explicit doesn’t make them private. The court points out demonstrators and activists have often pushed for the distribution of their own sexually-explicit images to make sociopolitical points. The wide open give-and-take of internet communications makes it impossible to draw a bright line on expectations of privacy — something the law takes for granted by saying that if it’s explicit, it’s private.

An observer of an image on a publicly available medium that depicts a person in a sexual act, or whose intimate parts are exposed, would be wise to refrain from further disseminating that image or risk criminal prosecution under Minn. Stat. § 617.261 based on a prosecutor’s subjective belief that the image’s content should have caused the observer to know that the person depicted did not consent to the dissemination and that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy. And that risk exists even though such images are often present on publicly available mediums with the consent of the people depicted

The government’s evidentiary duties are pretty much removed by this law, making it far too easy to punish protected expression while still following the letter of the law.

Given the ease with which impermissible disseminations under the statute may be further disseminated without the intent to harm necessary to proscribe expressive conduct without violating the First Amendment, we conclude that Minn. Stat. § 617.261 has the potential to reach a substantial amount of protected expressive conduct.

The law can’t be salvaged. It has to be stricken from the books and new legislation crafted to replace it — legislation that actually respects the First Amendment. This doesn’t excuse Casillas’ behavior. But the court isn’t willing to sacrifice the Constitution to punish someone for being an asshole.

Our holding in no way changes our view that Casillas’s conduct in violation of Minn. Stat. § 617.261—of which he was convicted—is abhorrent. Nor should it be read as failing to appreciate the significant harm that the nonconsensual dissemination of private sexual images causes. The state legitimately seeks to punish that conduct. But the state cannot do so under a statute that is written too broadly and therefore violates the First Amendment.

You hate to see jerks win. But that doesn’t mean anyone should be willing to punish a whole bunch of people just to ensure jerks can’t escape justice. Separating people from their rights isn’t justice. The state can still seek to punish people who traffic in revenge porn. But it will have to be whole lot more careful how it does it.

Filed Under: 1st amendment, free speech, minnesota, revenge port