4.
Minn. Stat. § 617.261 is overbroad in violation of the First Amendment.
Having determined that Minn. Stat. § 617.261 proscribes expressive conduct in
violation of the First Amendment, we turn to the critical inquiry: Does Minn. Stat. §
617.261 prohibit a substantial amount of constitutionally protected speech?
In this age of expansive internet communication, images may be disseminated,
received, and observed with ease. As the Court of Appeals of Texas noted in considering
a First Amendment challenge to a law similar to Minn. Stat. § 617.261:
Today, a person can share a photograph or video with
an untold number of people with a mere click of a button. The
daily sharing of visual material, for many, has become almost
ritualistic. And once the act of sharing is accomplished, it is
highly questionable whether that act ever can be completely
rescinded. But assuming that the visual material is not
otherwise protected, these persons are acting within their rights
when they share visual material with others.
Ex parte Jones, ___ S.W.3d ___, ___, 2018 WL 2228888, at *7 (Tex. App. May 16, 2018)
(footnote omitted), review granted (Tex. Crim. App. July 25, 2018). The Texas court noted
that
a Facebook user with her account settings set to share posts as
“public” can share a picture to her Facebook page that not only
can be viewed by the nearly two billion Facebook users, but
also by any other person with internet access whose access to
Facebook is not otherwise restricted.
Id. at *7 n.16.
Anyone who is familiar with our current American culture is likely aware that the
free flow of information described above contains noncommercial images of people
depicted in sexual acts, or whose intimate parts are exposed, and that the subjects of such
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