existence may cause others not before the court to refrain from constitutionally protected
speech or expression.’” Id. (quoting Broadrick, 413 U.S. at 611-12, 93 S. Ct. at 2916).
“The rationale for allowing an overbreadth challenge, even when a statute is constitutional
as applied in a particular circumstance, is that enforcement of an overbroad law chills
protected speech, which inhibits the free exchange of ideas.” State v. Hensel, 901 N.W.2d
166, 170 (Minn. 2017) (quotation omitted).
The Minnesota Supreme Court recently summarized the analysis applicable to a
First Amendment overbreadth challenge as follows:
We may reverse a conviction for violating the First
Amendment if we determine that the statute is
unconstitutionally overbroad on its face. A statute may be
facially overbroad in violation of the First Amendment when it
prohibits constitutionally protected activity, in addition to
activity that may be prohibited without offending
constitutional rights. Because of the fear of a chilling effect on
speech, the traditional rules of standing have been altered in
the First Amendment context to allow litigants to challenge
statutes as unconstitutionally overbroad even when their own
conduct could, consistent with constitutional requirements, be
punished under a narrowly drawn statute.
A.J.B., 929 N.W.2d at 847 (citations and quotations omitted).
In sum, Casillas may bring a facial overbreadth challenge to Minn. Stat. § 617.261
even if his dissemination of A.K.M.’s image is not protected by the First Amendment. As
to the applicable analysis:
The first step in an overbreadth challenge is to construe
the challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers. Once we understand the scope and sweep of the
statute, we ask whether its reach is limited to unprotected
categories of speech or expressive conduct.
6
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