3.
Minn. Stat. § 617.261 prohibits conduct that is beyond its legitimate
sweep.
Having concluded that Minn. Stat. § 617.261 regulates expressive conduct that is
not categorically excluded from First Amendment protection, we ask whether it has a
legitimate sweep and, if so, whether the statute extends beyond that sweep.
The state argues that it
has a significant interest in seeking to deter the nonconsensual
dissemination of private, sexually explicit images. This
conduct can be construed as a form of domestic abuse, as
abusers use the existence of these sexually explicit images to
threaten, intimidate, or coerce their partners. It is also a form
of sexual harassment that seeks to degrade and humiliate those
depicted. . . .
The government has a strong interest in preventing the
harm done to victims of nonconsensual porn; that harm is farreaching. Victims have lost jobs, been forced to change
schools, change their names, and have been subjected to reallife stalking and harassment.
(Citations and quotations omitted.)
We certainly agree that the state’s harm-preventing policy interest is legitimate.4
Minnesota’s First Amendment caselaw indicates that speech and expressive conduct can
4
The state cites scholarly review articles that describe the problem of nonconsensual
dissemination of private, sexually explicit images and the indisputable harm that it causes.
See Zak Franklin, Comment, Justice for Revenge Porn Victims: Legal Theories to
Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites, 102 Calif. L.
Rev. 1303, 1304 (2014) (emphasizing that harm done to victims of revenge porn is “often
vast” and that many victims report that this practice has had detrimental effects on their
lives); see also Mudasir Kamal & William J. Newman, Revenge Pornography: Mental
Health Implications and Related Legislation, 44 J. Am. Acad. Psychiatry & Law 359, 362
(2016) (explaining long-term personal and psychological consequences of revenge porn
and noting that “the disseminated photographs or videos may continue to haunt [victims]
15
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