Minnesota’s Revenge Porn Law
We have previously written about challenges to Minnesota’s revenge porn law based on the First Amendment’s guarantee of free speech and expression. We recognized in our earlier posts that, at least as of now, there have not been any decisions from either the Minnesota Supreme Court nor the Minnesota Court of Appeals addressing the potential First Amendment problems associated with Minnesota’s revenge porn law. Nevertheless, we believe there is a compelling case that Minnesota’s revenge porn law suffers from constitutional infirmity. In other words, it is likely that Minnesota’s revenge porn law cannot withstand constitutional scrutiny.
Recent Decision in Dakota County
Recently, a district court judge in Dakota County came to a different conclusion. Because the case is still pending, and because the defendant in that case enjoys the presumption of innocence until and unless the prosecutions satisfies its burden of proving the defendant’s guilt beyond a reasonable doubt, we are refraining from using any names in this post.
In the Dakota County case, the defendant was charged with Nonconsensual Dissemination of Private Sexual Images in violation of Minnesota Statutes Section 617.261. The complaint against the defendant alleged that the defendant was in a relationship with a woman, and that during the relationship, the defendant had access to a cloud-based account maintained by the woman. The account contained a sexually explicit video depicting the woman. After the relationship ended, the defendant used the log-in information to gain access to the account, obtained the video, threatened the woman that he would release it, and then in fact released the video to 44 recipients. The defendant was thereafter charged with a violation of Minnesota’s revenge porn law.
The defendant brought a First Amendment challenge to the charge, arguing that the statute was unconstitutionally overbroad and unconstitutionally vague. These are both topics that we have written about previously. The issues were briefed by both the defendant’s lawyer and the lawyer representing the state, and the judge issued a written decision denying the defendant’s motion to dismiss. In it’s order, the judge held that the statute is a constitutional, content-based regulation of obscenity. More specifically, the judge wrote as follows:
Obscenity is a category of speech that falls outside the constitutional protections of the First Amendment. “[O]bscene speech – sexually explicit material that violates fundamental notions of decency – is not protected by the First Amendment.” U.S. v. Williams, 553 U.S. 285, 293 (2008). The U.S. Supreme Court has defined a test for obscenity in Miller v. California, as (a) whether “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller, 413 U.S. at 24 (citations omitted).
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While it may be argued that not all sexual images are going to fall under the definition of “obscenity”, such as artistic works, this Court finds that the statute does regulate obscenity under the framework provided by the case law. The statue has excluded images that have serious, literary, artistic, political, or scientific value. The statute is specific to nonconsensual dissemination of images. That indicates that it does not involve the “free exchange of ideas” that the First Amendment is intended to protect.
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The statute at issue regulates obscenity. There is no argument that it contains any type of viewpoint discrimination. The statute does not implicate chill otherwise legitimate speech.
The district court’s ruling in the above case is problematic. To begin, Minnesota’s revenge porn law is not restricted to obscene speech. Rather, the prohibited conduct extends to a wide variety of protected, non-obscene speech. Minnesota’s law provides for punishment of a person who has shared images of another’s “intimate parts,” which are defined as “the genitals, pubic area, or anus of an individual, or if the individual is female, a partially or fully exposed nipple.” The Supreme Court of the United States has made very clear that non-obscene images of nudity are fully protected by the First Amendment. Thus, Minnesota’s revenge porn law fails under prong (b) of the Miller decision above. In other words, the law does not apply exclusively to “sexual conduct specifically defined by the applicable state law” because the state law fails to specifically define the prohibited conduct as conduct within the category of “obscenity.” Additionally, in defining the prohibited conduct so far as to include a “partially exposed nipple,” the statute sweeps within its reach a broad category of protected conduct that does not appeal to the prurient interest. Depictions of a partially exposed nipple are commonplace in the fashion industry and likely a part of most literature on breast-feeding. Moreover, such depictions are just simply not “obscene” under traditional norms established by the Supreme Court of the United States.
Contrary to the district court’s decision in the case discussed above, Minnesota’s statute does not exclusively regulate obscenity, and therefore likely does and will chill otherwise legitimate speech. It is time for the appellate courts in Minnesota to weigh in on this issue and rule that Minnesota’s revenge porn law is unconstitutional as overly broad and unduly vague. This does not mean that Minnesota cannot criminal “revenge porn,” only that any such law should be restricted to the categories of historically unprotected speech without treading on the First Amendment rights of Minnesotans.
Contact Lundgren & Johnson If You’re Facing Charges Under Minnesota’s Revenge Porn Law
If you have been charged with violating Minnesota’s revenge porn law, you need focused and zealous advocacy by lawyers who are ready to stand up to the government and protect your constitutional rights. The lawyers at Lundgren & Johnson, PSC are experienced in revenge porn cases. If you have been charged with this offense, we are available to speak with you during a no cost initial case consultation. You can reach David R. Lundgren or Adam T. Johnson 24 hours a day at 612-767-9643 or by sending us a confidential message here.