11
Mar

Minnesota's Revenge Porn Law Ruled Unconstitutional

In December 2019, the Court of Appeals struck down Minnesota’s revenge porn law that made it illegal to “intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed.” Minn. Stat. § 617.261 made distributing such images a gross misdemeanor if the (1) person in the image was identifiable (2) the distributor knows or should have known that the person in the image did not want it shared, and (3) the image was created or obtained with a reasonable expectation of privacy. The law further made it a felony if the subject of the image suffered financial harm or if the image was shared with the intent to harass the subject of the image.

While calling the conduct “abhorrent,” the three-judge panel said they recognized that the non-consensual dissemination of private sexual images can cause significant harm. The Court went on to say, “he 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.”

The reason the court struck down the recently enacted law was due to concerns about how wide of a net the law cast. While it aimed to protect people from being harmed by “revenge porn,” it also allowed for the prosecution of people far removed from the initial act. Specifically, they said, the statute lacks a requirement that prosecutors prove an intent to cause harm and allowed for convictions when the defendant did not know that the person depicted had a reasonable expectation of privacy.

For instance, the law made it illegal for a person to share a sexual image, created or obtained with a reasonable expectation of privacy, with the knowledge that the person in the image did not want it shared. It also made it illegal for someone who did not know that the person in the image did not consent to the image being shared, or did not intend to cause that person harm, to share the same image.

Given how expansive the law was, the court decided that in some instances certain distributions of images may be protected by the First Amendment. The freedom of speech covered certain behaviors and actions that were included as punishable under the statute and therefore the law was unconstitutional.

The Court of Appeals declared they could not “fix” the statute for the Minnesota Legislature. When a statute is too broad and cannot be reasonably narrowed, the remaining option is to scrap the statute. This decision should not be read as the court turning a blind eye to the harm this type of behavior can cause. Rather, the court came down on the side of protecting free speech while encouraging the legislature to more carefully draft laws.

The result is now the legislature will have to reconvene to rewrite Minnesota’s revenge porn law in a constitutional manner. Until then, while unlikely, if someone faces this charge, you have an argument that the law is unconstitutional.

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