664, 665 (Minn. App. 2017). This court reasoned in part that “the statute’s specific-intent
requirement—that false claims be knowingly made—ensures that the statute does not target
broad categories of speech.” Id. at 669 (quotation omitted).
Two other state supreme courts have considered the impact of an intent-to-harm
element—or lack thereof—when analyzing facial First Amendment challenges to laws
similar to Minn. Stat. § 617.261. Austin, 2019 WL 5287962, at *19-20; VanBuren, 214
A.3d at 812. For example, the Illinois Supreme Court rejected an overbreadth challenge to
720 Ill. Comp. Stat. 5/11-23.5(b) (2016), which criminalizes the nonconsensual
dissemination of private sexual images. Austin, 2019 WL 5287962, at *16-20. In doing
so, it rejected “the circuit court’s criticism . . . that the statute does not require proof of an
illicit motive or malicious purpose.” Id. at *19. The Illinois Supreme Court recognized
that
most state laws prohibiting the nonconsensual dissemination of
private sexual images expressly require some form of
malicious purpose or illicit motive as a distinct element of the
offense. . . .
In contrast, the legislatures of four states, including our
General Assembly, have chosen not to expressly include
“malice” as a distinct element of the offense.
Id.
In rejecting the circuit court’s reasoning, the Illinois Supreme Court noted that “[t]he
circuit court did not, however, cite legal authority for the proposition that a criminal statute
necessarily must contain an illicit motive or malicious purpose to survive an overbreadth
challenge.” Id. But our supreme court has provided us with such authority, and we are
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