07.2(2)(c) (2017) (requiring “[a]ctual emotional distress or harm” to the depicted individual as a result of the distribution of intimate images); N.M. Stat. Ann. § 3037A-1(A)(2) (2019) (requiring conduct that “would cause a reasonable person to suffer substantial emotional distress”); Or. Rev. Stat. § 163.472(1)(c), (d) (2017) (requiring the victim to be “harassed, humiliated or injured by the disclosure” and that “[a] reasonable person would be harassed, humiliated or injured by the disclosure”); Utah Code Ann. § 76-5b-203(2)(c) (LexisNexis 2019) (requiring “actual emotional distress or harm” to the person as a result of the distribution of the intimate image); Wash. Rev. Code § 9A.86.010 (2018) (requiring the offender to know or reasonably know the disclosure of the intimate images would cause harm to the depicted person). The majority, however, presumes the dissemination is harmful. Again, along with the absence of a malicious purpose, the lack of a showing of any specific harm to the alleged victim casts the net of criminality too far in my mind. ¶ 134 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. ¶ 135 The statute also does not provide the least restrictive means of dealing with the problem. See Playboy, 529 U.S. at 813 (stating that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative”); Kusper v. Pontikes, 414 U.S. 51, 59 (1973) (“If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.”). The legislature could provide for a private right of action against an offender. It could also provide avenues of equitable relief, including temporary restraining orders, preliminary injunctions, or permanent injunctions. See, e.g., Ohio Rev. Code Ann. § 2307.66 (LexisNexis 2018) (providing for a civil action resulting from the dissemination of images, including for an injunction, temporary restraining order, and compensatory and punitive damages). Instead, the statute criminalizes the conduct and subjects offenders to a possible term of one to three years in prison. - 42 -