dissemination as both a gross misdemeanor and a felony. See Minn. Stat. § 617.261, subd.
2(a) (stating that normally, whoever violates Minn. Stat. § 617.261, subd. 1, is guilty of a
gross misdemeanor), (b)(5) (stating that a felony results if “the actor disseminates the
image with intent to harass”). We would have to add language to the statute to reconcile
that conflict.
In sum, we agree with the state that there is no apparent reason to doubt that the
legislature would have enacted the statute without the negligence standard. But achieving
that result on the legislature’s behalf requires us to “‘perform[] . . . plastic surgery upon the
face of the [statute],’ rather than just adopting an alternative, reasonable construction of the
statute’s actual words.” Hensel, 901 N.W.2d at 176-77 (alterations in original) (quoting
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S. Ct. 935, 940 (1969)). This
we will not do. See Stevens, 559 U.S. at 480, 130 S. Ct. at 1592 (explaining that rewriting
a statute to “conform it to constitutional requirements” would constitute a “serious invasion
of the legislative domain”). Such a “shave-a-little-off-here and throw-in-a-few-wordsthere statute . . . may well be a more sensible statute, but at the end of the day, it bears little
resemblance to the statute that the Legislature actually passed.” Hensel, 901 N.W.2d at
180.
If a statute is “unable to be saved by a narrowing construction or severance, the
remaining option is to invalidate the statute.” A.J.B., 929 N.W.2d at 848 (quotation
omitted). We recognize that “invalidation of a statute for substantial overbreadth is strong
medicine that should be used only as a last resort.” Washington-Davis, 881 N.W.2d at 540
(quotation omitted). But Minn. Stat. § 617.261 reaches a substantial amount of protected
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