Amendment establishes that the government generally may not restrict expression because
of its messages, ideas, subject matter, or content. Id. The First Amendment’s protections
extend beyond expressions regarding matters of public concern, and “First Amendment
principles apply with equal force to speech or expressive conduct on the Internet.” Id.
“The [Supreme] Court has applied similarly conceived First Amendment standards to
moving pictures, to photographs, and to words in books.” Kaplan v. California, 413 U.S.
115, 119, 93 S. Ct. 2680, 2684 (1973). The state concedes, and we agree, that Minn. Stat.
§ 617.261 restricts expressive conduct.
Casillas contends that Minn. Stat. § 617.261 is unconstitutionally overbroad on its
face. To succeed in a typical facial constitutional challenge, a challenger must establish
that no set of circumstances exists under which the challenged statute would be valid or
that the statute lacks any plainly legitimate sweep. United States v. Stevens, 559 U.S. 460,
472, 130 S. Ct. 1577, 1587 (2010). But in the First Amendment context, the Supreme
Court has recognized a second type of facial challenge, whereby a law may be invalidated
as overbroad if “a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Id. at 473, 130 S. Ct. at 1587 (quotation
omitted).
Thus, a long-recognized exception to the ordinary rules of standing applies to facial
overbreadth challenges. State v. Mireles, 619 N.W.2d 558, 561 (Minn. App. 2000) (citing
Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct. 2908, 2916 (1973)), review denied
(Minn. Feb. 13, 2001). Under this exception, litigants may challenge a statute, “not
because their own rights of free expression are violated, but because ‘the statute’s very
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