Dictionary of the English Language 1374 (5th ed. 2018) (defining “portray” as “[t]o depict
or represent pictorially; make a picture of” and “[t]o describe or depict in a certain way”).
But the state’s argument is not based on the image’s content. Instead, the state focuses on
the circumstances surrounding the image’s dissemination. The state appears to argue that
any image of another person who is depicted in a sexual act or whose intimate parts are
exposed portrays sexual conduct in a patently offensive way if the image is disseminated
without the subject’s consent. Although we agree that such nonconsensual dissemination
is offensive, that is not the test for determining whether a work is obscene. Even though
some images subject to regulation under Minn. Stat. § 617.261 might satisfy the definition
of obscenity and therefore may be proscribed consistent with the First Amendment, we
cannot say, as a matter of law, that every image subject to regulation under the statute
portrays sexual conduct in a patently offensive way and is therefore beyond First
Amendment protection.
The state also contends that Minn. Stat. § 617.261 does not implicate the First
Amendment because it is a privacy regulation. But privacy is not one of the recognized
“delineated categories” of speech excepted from First Amendment protection. See A.J.B.,
929 N.W.2d at 846 (noting established exceptions). And “[t]he Supreme Court has been
reluctant to expand these categories of unprotected speech.” Id.; see Stevens, 559 U.S. at
472, 130 S. Ct. at 1586 (“Our decisions . . . cannot be taken as establishing a freewheeling
authority to declare new categories of speech outside the scope of the First Amendment.”).
In fact, the Supreme Court has stated, “We in no sense suggest that speech on private
matters falls into one of the narrow and well-defined classes of expression which carries
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