part on a broad mens rea requirement: the disseminator “knows or reasonably should know
that the person depicted in the image does not consent to the dissemination” and “the image
was obtained or created under circumstances in which the actor knew or reasonably should
have known the person depicted had a reasonable expectation of privacy.” Id. That “knows
or reasonably should know” standard is a negligence mens rea that allows a person to be
convicted under Minn. Stat. § 617.261 even if he did not actually know that the person
depicted in the image did not consent to the dissemination or that the image was obtained
or created under circumstances in which the person depicted had a reasonable expectation
of privacy. See A.J.B., 929 N.W.2d at 850 (describing a “knows or has reason to know”
standard as a broad negligence mens rea).
Moreover, Minn. Stat. § 617.261 does not require proof that the disseminator caused
or intended a specified harm. Instead, the statute enhances a criminal dissemination to a
felony offense if “the person depicted in the image suffers financial loss due to the
dissemination of the image” or “the actor disseminates the image with intent to harass the
person depicted in the image.” Minn. Stat. § 617.261, subd. 2(b)(1), (5). Thus, the statute’s
harm-causing and intent-to-harm elements do not limit the expressive conduct proscribed
by the statute; they merely determine the level of criminality assigned to expressive
conduct within the statute’s reach.
In sum, Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers
the dissemination of a sexual image with knowledge that the person depicted in the image
did not consent to the dissemination and that the image was obtained or created under
circumstances in which the person depicted had a reasonable expectation of privacy. But
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