Minnesota Upholds Revenge Porn Statute, Overbreadth Be Damned

In a curious and troubling decision, the Minnesota Supreme Court reversed the Court of Appeals holding that its state revenge porn statute, which as such statutes go is at least fairly well circumscribed and limited so that some of the worst excesses are avoided.

617.261 NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES.

It is a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when:

(1) the person is identifiable:

(i) from the image itself, by the person depicted in the image or by another person; or

(ii) from personal information displayed in connection with the image;

(2) the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and

(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.

At the district court, the state argued that the speech involved was unprotected as obscenity, which was abandoned before the court of appeals, where the state argued that the speech was unprotected under three historically-recognized categories: obscenity, speech integral to criminal conduct, and child pornography. The Supreme Court rejected all three, just as it rejected the argument that it was content neutral and merely a time, place and manner restriction.

However, the Supreme Court held that while the law prohibited protected speech, it survived strict scrutiny. The court initially describes the compelling state interest in proscribing the core conduct that the statute is directed to prohibit. This is entirely uncontroversial, as no serious person argues that “revenge porn,” as generally understood and as presented when describing the conduct giving rise to the need for prohibition, isn’t a horrible and extremely harmful thing. It is. Of this, there is no real doubt. The court held that this serves to demonstrate a “compelling state interest,” the first prong of strict scrutiny

The court then applies the second prong, whether the law is “narrowly tailored,” that it uses the “least restrictive means,” to meet that compelling state interest.

Because the statute proscribes only private speech that (1) is intentionally disseminated without consent, (2) falls within numerous statutory definitions, and (3) is outside of the seven broad exemptions, we find the statute to be narrowly tailored.

The core problem with criminalizing revenge porn, however, is that it simultaneously criminalizes speech beyond the harms the statute seeks to prohibit, and that despite the best efforts to narrow its reach, it nonetheless criminalizes, or chills, speech that falls within the ambit of the First Amendment and beyond the harm the statute purports to proscribe. But the court concludes that once it determined that the statute survived strict scrutiny, overbreadth was no longer an issue.

We note that the relationship between the overbreadth doctrine and a scrutiny analysis is unclear. Marc Rohr, Parallel Doctrinal Bars: The Unexplained Relationship Between Facial Overbreadth And “Scrutiny” Analysis in the Law of Freedom of Speech, 11 Elon L. Rev. 95, 109 (2019). There are instances when lower courts have made a decision based on strict scrutiny and the United States Supreme Court has affirmed on overbreadth grounds. Compare Stevens, 559 U.S. at 467, 482 (upholding the lower court’s strict scrutiny analysis using the overbreadth doctrine) with United States v. Stevens, 533 F.3d 218, 232–35 (3d Cir. 2008) (deciding the constitutionality of a dog-fighting statute on strict scrutiny grounds alone). In other cases, some members of the United States Supreme Court conduct a scrutiny analysis only and then other members evaluate a statute’s overbreadth. Compare Frisby v. Schultz, 487 U.S. 474, 488 (1988) (upholding a statute under intermediate scrutiny) with id. at 499 (Stevens, J., dissenting) (concluding the statute is overbroad). This variation in analytical approaches leads to understandable overlap in the relevant legal principles. See Austin, 155 N.E.3d at 467 (“Under intermediate scrutiny, a content-neutral statute is overbroad only when it burdens substantially more speech than necessary to advance its substantial governmental interest.”). As Professor Marc Rohr summarizes: “The relationship of these two modes of free-speech analysis has never been adequately explained by the Supreme Court.” Rohr, supra, at 109.

And Prof. Rohr is correct, the relationship between a strict scrutiny analysis and overbreadth has never been directly confronted. Based on this, the court decided that the statute, having survived strict scrutiny, was not subject to a secondary overbreadth analysis.

If a statute survives a scrutiny analysis, the court has already determined that all of the statute’s applications are constitutional. Neither Casillas nor his supporting amici identify a case where a statute survived strict scrutiny but was struck down as unconstitutionally overbroad. We have great difficulty imagining such a scenario. Therefore, we conclude that an overbreadth analysis is needlessly redundant if a statute has already survived strict scrutiny review.

This raises the question of whether overbreadth is subsumed by the “narrowly tailored” prong of strict scrutiny, or whether it is a separate inquiry. If a statute is overbroad, can it be narrowly tailored? If it’s as narrowly tailored as possible, what if it’s still overbroad? There is no clear law on this issue, and it presents a very serious violation of free speech.

What makes this holding inexplicable is that both the state and the court tacitly acknowledge that the sweep of the statute will include fully protected speech outside the core of the harm the statute prohibits, but so what?

The constitutional right to free speech stands as a bedrock for our democracy. This sacred right shields our citizens from prosecution and imprisonment while they debate and discuss the pertinent issues of our time. Even the most unpopular ideas and expressions find refuge under the First Amendment’s umbrella. To protect this fundamental promise, we evaluate any encroachment on free speech with both caution and skepticism.

The nonconsensual dissemination of private sexual images, however, presents a grave threat to everyday Minnesotans whose lives are affected by the single click of a button. When faced with such a serious problem, the government is allowed to protect the lives of its citizens without offending the First Amendment as long as it does so in a narrow fashion. Minnesota Statutes § 617.261 is a representation of this constitutional compromise and adequately balances the fundamental right to free speech with the citizens’ right to health and safety.

This essentially states that if the harm is bad enough, although it prohibits protected speech despite its best efforts to avoid doing so, that the First Amendment violation isn’t important enough to overcome the need to criminalize speech. It is, as it says, a “constitutional compromise” that the court is prepared to live with, a “balance” of free speech with health and safety, even though the First Amendment doesn’t leave it to the courts to engage in such ad hoc weighing of constitutional rights.

19 thoughts on “Minnesota Upholds Revenge Porn Statute, Overbreadth Be Damned

  1. MollyG

    I am a bit confused. How is this statute overbroad? It seems narrow to me. I looked at the opinion, but there was no dissent that would have provided clarity.

    1. LocoYokel

      If Scott will allow me.

      You suspect your husband is cheating so you hire a private detective to find out. He manages to get pictures of hubby and mistress (or boyfriend?!) in the act and gives them to you. Those pictures would pretty much fit all the conditions in the statute. You file divorce and soon-to-be ex-hubby files criminal charges against the investigator and you for having and disseminating the pictures, first to you, and then to the court. Hubby gets the divorce and you get a couple of years (or whatever) as a guest of the state and as a bonus get to be on the sex offenders list for the rest of your life. Or consider the circumstance where you think your underage child is being molested and get pictures to prove it.

      And I’m sure those with more knowledge and experience in this type of situation can think of dozens more circumstances where this can be abused.

      If this is unnecessary don’t bother posting it Scott.

      1. MollyG

        I see that now. The issue is that the statute does not require the images to be publicly disseminated, just disseminated. That does seem like sloppy writing of the laws. But the writers probably wanted it to included instances where images were sent from one phone to another, which is disseminated, but not publicly. But I am sure that better writing could have fixed that as well.

        1. SHG Post author

          Putting aside the use in court, which would be subject to the litigation privilege, what about those nudes of your cheating ex spouse that you sent privately to your best friend, who then sent them to both his new girlfriends, who then posted them on FB?

          And then someone on FB saw them and twitted them to their 37,291 followers, some of whom retwitted them?

          And then someone saw the RT, and recognized her child’s third grade teacher, and sent it over the PTA network to the principal, who sent it to the school board, two members of which posted it on FB, rinse, repeat.

        2. Rengit

          Frequently when they write these laws, they imagine specific scenarios that they want to criminalize (girl sends boyfriend her nudes, they break up, he decides to terrorize her by putting them out to thousands of people “revenge”), but end up including a lot of other scenarios that they didn’t have in mind.

          Here’s a real example: Rob Kardashian, the younger brother of his three famous sisters, was in a relationship with an Instagram model. During a fight between them, she went and had sex with another man, then sent him the pictures of her, naked, having sex with the guy in order to make Rob mad. The feud between them spilled out onto social media, and Rob (obviously angry) sought to prove to all his followers on Twitter that she was the bad one in the relationship by, of course, tweeting out the video of her, naked and having sex, that she had consensually sent to him. The reaction on social media was that Rob had violated revenge porn laws by Tweeting out without the consent of the sender a pornographic video sent to him, one that he wasn’t featured in.

          I don’t recall if he was prosecuted, but it shows how poorly these laws are drafted, because it’s not unreasonable to assume that he could have been looking at the statutes. This case was likely not what the drafters had in mind, given that Rob’s girlfriend had likely forfeited any reasonable expectation of privacy she had in the video by a) sending them to her boyfriend b) when he wasn’t in them and c) she did it in the vengeful spirit of causing him extreme emotional distress. If anything, the guy who she had sex with may have had his privacy expectation violated when she sent it to Rob.

          But the way these laws are written has been inartful, applying broadly without any exceptions, so it sweeps in a lot of conduct that most people wouldn’t think of as criminal or deserving of criminalization, including disseminations that most people would agree have a legitimate, or at least arguably justifiable, purpose.

          1. SHG Post author

            Your first paragraph raises the “lumpy law” problem, where laws are written with one offense in mind but sweep in an array of conduct either lawful of lesser severity. The problem, as you say, is that the people writing the law know what theyh want to criminalize, but can’t see how the law covers other unanticipated conduct. It’s a very common mistake.

            1. B. McLeod

              As long as they burn the witches, burning a few randos as well is acceptable collateral damage.

  2. Angrychiatty

    Co worker sends female employee an unsolicited dick pic in which he says “don’t show to anyone else.” Female sends screenshots of this to her friends and HR, in which the coworkers name appears at the top of the text.

    Male coworker lies and says female coworker asked for the pic. I don’t see anything in the plain language of the statute that prevents prosecution of female. Might not be a successful prosecution, but nothing legally prevents prosecutor from trying.

    Even if coworker doesn’t lie, and it was unsolicited, still seems like nothing in language prevents prosecution of female for forwarding it. Maybe (3) fails, but With the element of “reasonableness”, some judges could hold that it becomes a jury question on the individual elements.

    Bad law.

    1. SHG Post author

      There are a million permutations, often that no one even considered as we don’t know what unintended conduct falls within the ambit of the law. This is why overbreadth is so important.

  3. Kathryn M Kase

    I find the lack of a dissent regarding the overbreadth issue troubling. And I hope, Scott, that, given your cogent analysis here, you’ll consider submitting an amicus brief in favor of Casillas when writ of cert is sought.

  4. Mark Bennett

    The greater overbreadth problem, in my view, is that even the crime they think they’re addressing comprises only protected speech, and Stevens makes it clear, to anyone who isn’t determined not to see it, that a content-based restriction may only restrict unprotected speech. I’m still hoping the TxCCA will do better.

        1. SHG Post author

          Who doesn’t? To add a bit of meat to your bones, this from your substack where you explain why you disagree with me:

          I disagree with Scott’s analysis. The core problem with criminalizing revenge porn is that there is no way to define “revenge porn” that a) limits it to unprotected speech; and b) forbids something that wasn’t already forbidden. What we think of as “revenge porn” is protected speech, outside any category of historically unprotected speech, and the government may not punish it.

          You argue that if the speech is protected, then it cannot be criminalized even if the law survives strict scrutiny per Stevens. Eugene Volokh, in contrast, says he thinks “narrowly crafted bans on revenge porn (or, to be precise, nonconsensual porn) are indeed constitutional,” but he offers no rationale why protected speech that falls outside a historically unprotected category can be criminalized.

          The most he offers is that it’s fine provided the prohibited speech is “both harmful and essentially lacking in First Amendment value.” The former is easily accomplished by rhetorical cries of hurt feelings, and who gets to decide the latter? Since when does the First Amendment only protect speech someone, say Mary Anne, decides is sufficiently valuable to overcome her priorities?

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