standard highly subjective. Indeed, in concluding that Casillas was guilty, the district court
reasoned that “an expectation of privacy regarding the image is implicitly inherent from
the nature of the act depicted,” indicating that some might view a sexual image as private
and its dissemination nonconsensual regardless of the actual expectations of the person
depicted in the image.
The dissenting opinion in People v. Austin sets forth a telling hypothetical that
reflects our concern:
A hypothetical posed to the State during oral argument
illustrates this point. Two people go out on a date, and one
later sends the other a text message containing an unsolicited
and unappreciated nude photo. The recipient then goes to a
friend, shows the friend the photo, and says, “look what this
person sent me.” Has the recipient committed a felony? The
State conceded that the recipient had, assuming the recipient
knew or should have known that the photo was intended to
remain a private communication.
2019 WL 5287962, at *24 (Garman, J., dissenting).
It is not difficult to envision a substantial number of situations in which a person
observes an image that may have been disseminated in violation of Minn. Stat. § 617.261
and further disseminates that image without knowing that the subject of the image did not
consent to the original dissemination, without knowing that the image was obtained or
created under circumstances indicating that the person depicted had a reasonable
expectation of privacy, and without intending to cause a specified harm. Given the ease
with which impermissible disseminations under the statute may be further disseminated
without the intent to harm necessary to proscribe expressive conduct without violating the
24
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