bound by that precedent. See State v. Curtis, 921 N.W.2d 342, 343 (Minn. 2018) (holding
that “[t]he court of appeals is bound by supreme court precedent”).
The Vermont Supreme Court also rejected a facial First Amendment challenge to
its statute banning disclosure of nonconsensual pornography, Vt. Stat. Ann. tit. 13, § 2606
(2015). VanBuren, 214 A.3d at 814. In doing so, the Vermont Supreme Court considered
whether Vermont’s statute was narrowly tailored to serve a compelling state interest.
VanBuren, 214 A.3d at 807, 811-14. In concluding that it was narrowly tailored, the
Vermont Supreme Court reasoned in part that:
[D]isclosure is only criminal if the discloser knowingly
discloses the images without the victim’s consent. We
construe this intent requirement to require knowledge of both
the fact of disclosing, and the fact of nonconsent. Individuals
are highly unlikely to accidentally violate this statute while
engaging in otherwise permitted speech. In fact, § 2606 goes
further, requiring not only knowledge of the above elements,
but a specific intent to harm, harass, intimidate, threaten, or
coerce the person depicted or to profit financially.
Id. at 812 (emphasis added) (emphasis omitted) (citations omitted).
Unlike the Vermont statute, Minn. Stat. § 617.261 lacks a specific intent-to-harm
element. Although Minn. Stat. § 617.261 has a legitimate harm-preventing purpose, its
lack of a specific-intent requirement and use of a negligence mens rea allows it to reach
protected First Amendment expression that neither causes nor is intended to cause a
specified harm.
That reach goes beyond the legitimate state interest justifying the
proscription of otherwise protected First Amendment expression. Based on the Minnesota
caselaw described above, we conclude that Minn. Stat. § 617.261 proscribes expressive
conduct in violation of the First Amendment.
21
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