Dictionary of the English Language 1374 (5th ed. 2018) (defining “portray” as “[t]o depict or represent pictorially; make a picture of” and “[t]o describe or depict in a certain way”). But the state’s argument is not based on the image’s content. Instead, the state focuses on the circumstances surrounding the image’s dissemination. The state appears to argue that any image of another person who is depicted in a sexual act or whose intimate parts are exposed portrays sexual conduct in a patently offensive way if the image is disseminated without the subject’s consent. Although we agree that such nonconsensual dissemination is offensive, that is not the test for determining whether a work is obscene. Even though some images subject to regulation under Minn. Stat. § 617.261 might satisfy the definition of obscenity and therefore may be proscribed consistent with the First Amendment, we cannot say, as a matter of law, that every image subject to regulation under the statute portrays sexual conduct in a patently offensive way and is therefore beyond First Amendment protection. The state also contends that Minn. Stat. § 617.261 does not implicate the First Amendment because it is a privacy regulation. But privacy is not one of the recognized “delineated categories” of speech excepted from First Amendment protection. See A.J.B., 929 N.W.2d at 846 (noting established exceptions). And “[t]he Supreme Court has been reluctant to expand these categories of unprotected speech.” Id.; see Stevens, 559 U.S. at 472, 130 S. Ct. at 1586 (“Our decisions . . . cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”). In fact, the Supreme Court has stated, “We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries 13

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents