Minnesota Asks Top State Court to Reinstate Revenge Porn Law

The Minnesota Supreme Court Chamber, located inside the Minnesota State Capitol in St. Paul. (Photo via Jonathunder/Wikipedia Commons)

ST. PAUL, Minn. (CN) — Weighing privacy against free speech, the Minnesota Supreme Court heard arguments Tuesday in the state’s effort to restore an overturned revenge porn statute.

In an echoey Zoom meeting broadcast via the soon-to-be antiquated Adobe Flash Player, the state’s high court peppered Assistant Dakota County Attorney Anna Light and St. Paul defense attorney John Arechigo with questions about the statute’s scope and intent and the severability of its provisions.

The law was passed in 2016 at the urging of privacy advocates and over the objections of the state’s ACLU branch, with sponsorship from now-outgoing St. Paul legislator John Lesch.

In 2017, Michael Anthony Casillas, also of St. Paul, ran afoul of the statute by sharing a video of an ex-girlfriend engaged in a sex act after threatening to do so over social media and despite her protests. A district court in Dakota County, just southeast of the Twin Cities, convicted Casillas under the statute and sentenced him to a 23-month prison term.

The Minnesota Court of Appeals overturned that conviction last December, with Judge Michelle Larkin calling Casillas’ conduct “abhorrent” in a written opinion that also found that the statute was facially overbroad. Larkin contrasted the statute, which requires only negligence for a conviction, with one in Vermont that survived legal challenges because it requires an intent to harm.

“The [Vermont] statute enhances a criminal dissemination to a felony offense if ‘the person depicted in the image suffers financial loss due to the dissemination of the image’ or ‘the actor disseminates the image with intent to harass the person depicted in the image,’” Larkin wrote. “Thus, the statute’s harm-causing and intent-to-harm elements do not limit the expressive conduct proscribed by the statute; they merely determine the level of criminality assigned to expressive conduct within the statute’s reach.”

She also noted that the prevalence of internet pornography has muddied the waters of the Minnesota law’s “reasonable expectation of privacy” standard.

“Depending on one’s sensibilities and tolerance of sexual images on publicly available mediums, reasonable people could reach different conclusions regarding the privacy expectations associated with such images, rendering the reasonable knowledge standard highly subjective,” the judge wrote.

Larkin and the rest of the appeals court’s three-judge panel also found that the standard was not severable from the rest of the statute, an issue which also arose Tuesday’s hearing before the Minnesota Supreme Court.

Before reaching that issue, however, the hearing spent much of its runtime focused on whether the statute comprised a content restriction or a limit on the time, place and manner of protected speech.

Arguing for the state, Light drew comparisons between the Casillas case and Renton v. Playtime Theatres, a 1986 U.S. Supreme Court decision which found that a Seattle suburb could enact a zoning restriction preventing adult theaters from operating within 1,000 feet of a residential dwelling or zone, church, park or school.

“We’re not proscribing all images – the dissemination of all images that contain nudity or depict the sexual act,” Light said. “I recognize that the statute is limited in scope by specifying what the images depict, but really the core of the statute is the non-consensual dissemination.”

Justice Margaret Chutich said that issue was on her mind. She asked Light to clarify whether the same images forbidden by the statute but distributed with consent would violate it. Light said they would not.

“That’s why I’m having trouble with the idea that it’s a content-based restriction, when you can send the exact same image,” Chutich replied. She emphasized, however, the importance of not criminalizing “mistakes or accidents” with the statute.

That issue of mistakes and accidents, Casillas’ attorney argued, is one of many points that make the statute overbroad.

“The argument is that the law restricts speech, and that the law, as written, covers a broad, sort of range of speech and activities, really where a majority of the speakers, the people disseminating information and publishing photographs, don’t have any knowledge” of whether the people depicted have privacy concerns, Arechigo said Tuesday afternoon.

As written, he added, the statute creates a standard based on nudity, rather than the more tightly defined standard of obscenity, and could implicate a broad swath of people without requiring any criminal intent.

Arechigo said that while it was tough to get a read on the justices based on their questions, he was confident in the merits of his case.

“We’ve argued, in my opinion, that it’s a pretty glaringly unconstitutional statute, and it should be on the legislature to go back to the drawing board, and sort of pass a law that’s actually going to protect… what the state and the legislature are trying to protect,” he said in an interview after the hearing.

Dakota County Attorney James Backstrom said in a statement after the hearing that the state is thankful the Minnesota Supreme Court took up the case.

“This is a very important statute aimed at preventing very disturbing criminal conduct which is extremely harmful to the victims in these cases,” he said. “We believe that we have presented a strong argument in support of upholding the validity of this law and we are hopeful that the Supreme Court will do so.”

If the Supreme Court upholds the Court of Appeals’ ruling, Lesch has said that he may begin the process of passing an amendment to the state constitution enshrining a privacy right.

That plan may be more complicated now. At the time of the statute’s passage in 2016, Lesch’s party, the Minnesota Democratic Farmer Labor Party, held the governor’s office and both of its legislative bodies. The Minnesota GOP overtook the state Senate in 2018, where senators have spent the last several months in an increasingly hostile gridlock with the Minnesota House and Democratic Governor Tim Walz.

Lesch himself was also recently unseated by left-wing primary challenger Athena Hollins in his deep-blue district.

%d bloggers like this: