ST. PAUL, Minn. (CN) — Minnesota’s highest court unanimously upheld the state’s nonconsensual-porn statute Wednesday, bringing holiday cheer to privacy advocates and a year-end letdown to free-speech groups.
The court found that the statute, which has been embroiled in litigation since its passage in 2016, criminalizes constitutionally protected speech but is focused tightly enough on preventing the nonconsensual dissemination of explicit images to stand up to strict scrutiny.
“The constitutional right to free speech stands as a bedrock for our democracy,” Justice Natalie Hudson wrote in the 26-page opinion. “To protect this fundamental promise, we evaluate any encroachment on free speech with both caution and skepticism.”
She added, “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.”
The decision affirms the conviction of Michael Casillas, a St. Paul man who in 2017 was sentenced to a 23-month prison term under the statute in neighboring Dakota County. The county’s district court found that Casillas had violated the law by posting and sending out a video and photo he had taken from an ex-girlfriend’s cloud storage account after she warned him not to.
The Minnesota Court of Appeals reversed Casillas’ conviction in December 2019, finding that the statute was unconstitutionally overbroad because it criminalized “a substantial amount of protected expressive conduct.” The state’s top court largely agreed on that point but held that the government had a strong interest in prohibiting nonconsensual dissemination of pornography and targeted its rules closely around that interest.
Dakota County Attorney James Backstrom, whose office first prosecuted Casillas, hailed the decision in a Wednesday morning statement.
“The nonconsensual dissemination of private sexual images causes permanent and severe harm that can last a lifetime,” Backstrom said. “This decision is an extremely important victory for this crime’s many victims. I am thankful for the Minnesota Legislature’s enactment of this important law and grateful to the Minnesota Supreme Court for upholding its constitutionality today.”
Backstrom was joined in his celebration by state legislator John Lesch of St. Paul, who sponsored the statute in the Minnesota House of Representatives. He called the ruling “a big win.”
“Over the course of the last five years we have waited to be vindicated by the supreme court in that it is not free speech to post sexual images without a person’s consent,” Lesch said in an interview.
He said that the contention of the American Civil Liberties Union and other free-speech groups that the law fell afoul of precedents like those set by porn publisher and First Amendment advocate Larry Flynt was misguided.
“I maintain that this is not the same thing. This is important law protecting people’s privacy rights,” Lesch said.
“Their argument flies in the face of HIPAA. I don’t have a free-speech right to find my neighbor’s proctology exam and post it online,” he quipped, referring to the medical privacy law.
Also applauding the decision was Artika Roller, executive director of the Minnesota Coalition Against Sexual Assault & Rape.
“We’re excited about the ruling, happy that it was upheld. It upholds protections for victims and survivors,” she said. “It really explicitly spells out that in these type of incidents, this is not an infringement on a person’s freedom of speech. These are, again, cases that we’re finding there’s an intent to do harm.”
Mitchell Hamline School of Law professor Raleigh Levine disagreed. She joined attorney Leita Walker of Ballard Spahr and Dentons US attorneys Richard Zuckerman and Michael Bamberger in representing several groups of publishers, booksellers and media groups who gave their two cents on the case as amici curiae.
Levine expressed her disappointment in the decision Wednesday morning.
“The statute prohibits a significant amount of protected speech, which means that, under a correct analysis, this law should fail strict scrutiny. And it’s really shocking that the court found that the law survives strict scrutiny,” she said.
Levine said the law could easily be used to punish people who send, repost or publish images with no malicious intent.
“People who innocently, or carelessly, sent a sexual image when they didn’t know that the person depicted consented to the dissemination of that image, could be sent to prison for a significant period,” she said.
“The intent part of it says that you intentionally disseminate the image,” she added. “If one teenager sends an image they found on the internet to another teenager, they have intentionally disseminated it, but they did not intentionally disseminate it knowing that the person shown did not consent.”
Lesch dismissed that idea.
“If she can make that same argument about your private medical data, and it held sway, people would be mortified,” the lawmaker said. “Clearly, it’s sensitive information. If you have someone’s nude pic, they shouldn’t be permitted to assume ‘oh, they put this out there for the world to see’…and the failure to recognize that is ridiculous, especially in the digital age.”
Casillas’ attorney, John Arechiga of local defense firm Arechigo & Stokka, did not respond to a request for comment. Levine, however, said that an appeal to the U.S. Supreme Court is being considered.
Mary Anne Franks, a University of Miami Law professor and head of the Cyber Civil Rights Initiative, a group advocating for similar laws across the country, agreed and fired back at the law’s detractors.
“The court’s decision firmly rejects the attempt, made by perpetrators and self-styled civil libertarians, to characterize this horrific form of abuse as an exercise of free speech,” she said. “Minnesota’s law is one of the strongest nonconsensual pornography laws in the country, and the state’s highest court’s decision to uphold it against First Amendment challenge should send the message to other states that the Constitution does not require compromise on privacy rights.”
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