it also covers the dissemination of a sexual image even if the disseminator did not know
that the subject of the image did not consent to the dissemination, did not know that the
image was obtained or created under circumstances indicating that the person depicted had
a reasonable expectation of privacy, and did not cause or intend to cause a specified harm.
Given the statute’s application to the latter set of circumstances, its sweep is broad.
2.
Minn. Stat. § 617.261’s sweep is not limited to expressive conduct that is
categorically excluded from First Amendment protection.
We next address the state’s argument that Minn. Stat. § 617.261 does not implicate
the First Amendment because it regulates only unprotected expressive conduct. “[T]he
Supreme Court has long permitted some content-based restrictions in a few limited areas,
in which speech is of such slight social value as a step to truth that any benefit that may be
derived from it is clearly outweighed by the social interest in order and morality.” State v.
Melchert-Dinkel, 844 N.W.2d 13, 19 (Minn. 2014) (quotation omitted). Exceptions to First
Amendment protections fall into several delineated categories that include speech or
expressive conduct designed to incite imminent lawless action, obscenity, defamation,
speech integral to criminal conduct, so-called fighting words, child pornography, fraud,
true threats, and speech presenting some grave and imminent threat the government has the
power to prevent. A.J.B., 929 N.W.2d at 846 (citing United States v. Alvarez, 567 U.S.
709, 717, 132 S. Ct. 2537, 2544 (2012)).
Obscene material is unprotected by the First Amendment. Miller v. California, 413
U.S. 15, 23-24, 93 S. Ct. 2607, 2614-15 (1973). But “[s]tate statutes designed to regulate
obscene materials must be carefully limited,” and the Supreme Court has confined the
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