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Minnesota’s Revenge Porn Law: A Restriction on Free Speech?

15th May 2018

Minnesota’s Revenge Porn Law

In 2016, Minnesota joined a majority of states in criminalizing the nonconsensual dissemination of private sexual images, otherwise known as “revenge porn.”  As we have written about previously, Minnesota’s revenge porn law makes it 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 the person is identifiable, when the person posting or sharing the image knows or reasonably should know that the person depicted in the image does not consent to the dissemination, and the image was created under circumstances where the person depicted had a reasonable expectation of privacy.

Because the law is relatively new, there has not yet been an instance in which the appellate courts of Minnesota have weighed in on the constitutionality of the law, specifically, whether the law passes constitutional muster when considered in light of the broad protections afforded by the First Amendment’s guarantee of free speech and expression.  In this post, we will explore Minnesota’s revenge porn law against the backdrop of the First Amendment, to decide whether or not the law can withstand constitutional scrutiny.

The First Amendment to the United States Constitution

Among other liberties, the First Amendment to the United States Constitution guarantees freedom of speech by prohibiting the government from restricting the rights of citizens to speak freely on most topics under the sun. Sometimes in the law (and in blogging about the law), it is best to go right to the source. The full text of the First Amendment is as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

We should note that the right to free speech is not absolute, and there are a number of exceptions – in a category known as unprotected speech – that have been recognized by the courts over time. Some traditional examples of unprotected speech include speech that is “integral” to criminal conduct, incitement, defamation, and fraud. But as a general matter, the First Amendment establishes that, above all else, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. What this means in the criminal law is that the states, in passing legislation governing the conduct of its citizens, must take special care not to criminalize (and therefore restrict) the free exercise of speech and expression.

First Amendment Challenges to Criminal Laws

To be a constitutional exercise of the police power of the state, a statute that punishes speech must be neither overly broad nor unduly vague. A statute that is overly broad in its reach or unduly vague as to its meaning may offend the First Amendment. In general, a statute may be overly broad if it deters the exercise of First Amendment rights by unnecessarily punishing constitutionally protected activity along with punishing unprotected activity. For example, the Supreme Court in 1942 struck down a New Hampshire law that prohibited the use of “offensive, derisive, or annoying” language in a public place. Such “offensive speech” statutes have since been held constitutional when prosecution is permitted solely for “fighting words.” As you can imagine, a law criminalizing “annoying” speech, without further limitations, would punish a raft of free speech. Similarly, a criminal statute that is vague is likely to infringe upon free speech rights. A law may be impermissibly vague if it fails to draw a reasonably clear line between lawful and unlawful conduct, requiring a person to “guess” as to its meaning. For the reasons stated in this post, Minnesota’s revenge porn law is objectionable both because it is overly broad and unduly vague.

Minnesota’s Revenge Porn Law vs. the First Amendment

In our main page on Minnesota’s revenge porn law, we provide an overview of the statute, and certain aspects of the law that may be relevant to a person charged with its violation. Here, we are focusing exclusively on the law as it relates to challenges under the First Amendment.

If speech or expression falls into one of the categories of unprotected speech (obscenity, for example), a statute criminalizing it is subject only to what the courts refer to as rational basis scrutiny. To pass rational basis review, the challenged law must be rationally related to a legitimate governmental interest. Rational basis is the most lenient form of review, and is generally used when no fundamental rights, such as the freedom of speech, are at issue. If speech or expression falls into the protected speech category, then a statute criminalizing it is subject to strict scrutiny. To survive strict scrutiny, a legislative body must have passed the law to further what is called a “compelling governmental interest,” and also must have narrowly tailored the law to achieve that interest. The initial question, then, is to determine whether “revenge porn” under Minnesota law falls into the obscenity category of unprotected speech. There is a three-part test for this determination:

(1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Minnesota’s revenge porn law makes it “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.” The statute goes on to define “intimate parts” as  “the genitals, pubic area, or anus of an individual, or if the individual is female, a partially or fully exposed nipple.” This language is problematic from a constitutional perspective. Non-obscene images of nudity are fully protected by the First Amendment. The Supreme Court has made clear that nudity alone is not enough to make material legally obscene. In other words, nudity cannot be automatically equated to obscenity. A law that punishes a person who has done nothing more than share an image of a “partially exposed nipple” runs afoul of the First Amendment.

Minnesota’s Revenge Porn Law May Be Both Overly Broad And Unduly Vague

The constitutionality of Minnesota’s revenge porn law is doubtful because it is not written to apply only to obscene depictions. For example, the law criminalizes the dissemination of photographs showing a person’s “pubic area” – the law does not even contain a qualifying provision of whether the prohibition pertains to the clothed or unclothed pubic area, or what the pubic area even is. Garden variety advertisements in fashion magazines are rife with images depicting the pubic area of men and women, and one would be hard-pressed to argue in 21st century American culture that such photographs are “obscene.” Other Minnesota criminal statutes related to criminal sexual conduct and child pornography are specific when they refer to clothed and unclothed areas of the human body. Without any such qualifier, Minnesota’s revenge porn law arguably encompasses any depictions of pubic areas, including clothed depictions. Even assuming a depiction of an unclothed pubic area is obscene, there simply is no language in the statute limiting the prohibition to depictions of unclothed areas. Because there is no such limitation, the law is not narrowly tailored to achieve a compelling governmental interest, and moreover, criminalizes protected speech based on its content. In other words, the law is overly broad because it deters the exercise of First Amendment rights by unnecessarily punishing constitutionally protected activity (disseminating a photograph of a fully clothed person) along with punishing unprotected activity (obscenity).

In addition to being overly broad, Minnesota’s revenge porn law is also unduly vague. As the preceding paragraph illustrates, it is unclear what is even meant by “pubic area.” Does it include the immediate area beneath the abdomen? Does it include a clothed pubic area? Since the law does not expound further on “pubic area,” the public is left to guess at its meaning and potential application. There is no “reasonably clear line between lawful and unlawful conduct.” Accordingly, the law suffers from vagueness, and likely runs afould  of the First Amendment’s protections.

Statute Similar To Minnesota’s Revenge Porn Law Found Unconstitutional in Vermont

A recent case from the state of Vermont serves as an example of how the First Amendment operates when it confronts an unconstitutional revenge porn law. In the case of State of Vermont v. Rebekah VanBuren, a woman was charged with violating Vermont’s recently-enacted revenge porn law. The Vermont law makes it a crime to knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, when the disclosure would cause a reasonable person to suffer harm. The definition of “nude” in the Vermont law is nearly identical to the definition of “intimate parts” in Minnesota’s revenge porn law.

In the VanBuren case, a female had taken nude and partially nude photographs of herself, and sent them to the Facebook account of a man with whom she had a prior relationship. At the time she sent the photographs, she was not in a relationship with the man. Instead, the man was in a relationship with Ms. VanBuren. According to the court’s opinion, Ms. VanBuren accessed the man’s Facebook account, discovered the photographs, and then posted them on the man’s public Facebook page, and tagged the woman in the photographs. A number of people saw the photographs, which caused the woman in the photographs to learn of what had happened. Ms. VanBuren was subsequently charged with violating Vermont’s revenge porn law.

At the district court, Ms. VanBuren filed a motion to dismiss, arguing that Vermont’s revenge porn law was unconstitutional under the First Amendment, in that it is an overbroad restraint on a protected form of speech or expression and not narrowly tailored to achieve a compelling governmental purpose. (Sound familiar?) In agreeing with Ms. VanBuren and dismissing the case on First Amendment grounds, the district court judge wrote as follows:

“The court must agree with Defendant that merely ‘nude’ photographs cannot be considered obscene and thus subject to the lower standard of review and protection. Nude photographs may not involve any depiction of a sexual act or be prurient. A person might send such photographs with no intent to appeal to such interests. Although [the law] attempts to define nude to only include specific depictions, they could still fit those categories and not be obscene under the constitutional definition. What would have been clearer would have been to prohibit the disclosure of ‘obscene’ photographs and depictions and then define that term in line with constitutional definitions.”

Contact Lundgren & Johnson If You’re Facing Charges Under Minnesota’s Revenge Porn Law

Minnesota’s revenge porn law is probably constitutionally infirm for the same reasons articulated by the judge in the VanBuren case. The law, while well-intended, is in conflict with the freedoms secured by the First Amendment. 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.