so little social value, such as obscenity, that the State can prohibit and punish such
expression by all persons in its jurisdiction.” Connick v. Myers, 461 U.S. 138, 147, 103 S.
Ct. 1684, 1690 (1983).
We recognize that the disseminations proscribed under Minn. Stat. § 617.261 could
invade the privacy rights of others and that, under certain circumstances, such
disseminations may be proscribed consistent with the First Amendment. See Dunham, 708
N.W.2d at 566 (rejecting a First Amendment challenge to Minnesota’s criminal harassment
statute after concluding that the statute was narrowly tailored because it “only regulates
speech or conduct that constitutes . . . substantial invasions of one’s privacy” and its focus
was “to prohibit repeated and unwanted acts, words, or gestures that have or are intended
to have a substantial adverse effect on the safety, security, or privacy of another”). But we
cannot say, as a matter of law, that every dissemination regulated under Minn. Stat.
§ 617.261 is beyond the protection of the First Amendment as an invasion of privacy.
In sum, Minn. Stat. § 617.261’s sweep is not limited to expressive conduct that is
categorically excluded from First Amendment protection.3
3
Two state supreme courts have rejected arguments similar to those made by the state.
People v. Austin, ___ N.E.3d ___, ___, 2019 WL 5287962, at *6-7 (Ill. Oct. 18, 2019)
(rejecting state’s argument that “speech that invades privacy” should be categorically
excluded from First Amendment protection); State v. VanBuren, 214 A.3d 791, 798-807
(Vt. 2019) (rejecting state’s argument that “nonconsensual pornography, as defined in [a]
Vermont statute, falls outside of the realm of constitutionally protected speech for two
reasons: such speech amounts to obscenity, and it constitutes an extreme invasion of
privacy unprotected by the First Amendment”).
14
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