Free Speech

Minnesota Revenge Porn Law Upheld

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From today's Minnesota Supreme Court decision in State v. Casillas:

While "[o]ne's naked body is a very private part of one's person and generally known to others only by choice," the nonconsensual dissemination of private sexual images removes this choice from a victim and exposes the victim's most intimate moments to others against the victim's will.

Those who are unwillingly exposed to their friends, family, bosses, co-workers, teachers, fellow students, or random strangers on the internet are often deeply and permanently scarred by the experience. Victims suffer from post-traumatic stress disorder, anxiety, depression, despair, loneliness, alcoholism, drug abuse, and significant losses in self-esteem, confidence, and trust. Survivors often require therapy and medical intervention.  The effects of revenge porn are so profound that victims have psychological profiles that match sexual assault survivors.  Tragically, not every victim survives this experience and some commit suicide as a result of their exposure online.

Those who survive this harrowing experience without significant health consequences still may have their reputations permanently tarnished. Many victims have a scarlet letter affixed to their resumes when applying for jobs or additional educational opportunities.  When a simple internet search for a victim's name displays multiple nude images, employers frequently put the victim's application aside.  Employers have fired employees who have been victimized by their former partners.  Losing employment is a difficult issue for any person, but is especially problematic when victims need employment-sponsored health benefits to deal with the trauma of being exposed online.

"[I]t is difficult to imagine something more private than images depicting an individual engaging in sexual conduct, or of a person's genitals, anus, or pubic area."  Even if a victim is fortunate enough to avoid the serious mental, emotional, economic, and physical effects, the person will still suffer from humiliation and embarrassment. The harm largely speaks for itself…. Based on this broad and direct threat to its citizens' health and safety, we find that the State has carried its burden of showing a compelling governmental interest in criminalizing the nonconsensual dissemination of private sexual images.

Next, we analyze whether Minnesota Statutes § 617.261 is "narrowly tailored" and "the least restrictive means" to solve the underlying problem. We conclude that the State has carried this burden.

First, the Legislature explicitly defined the type of image that is criminalized. The image must be "of another person who is depicted in a sexual act or whose intimate parts are exposed."  The terms "sexual act," "intimate parts," and "image" are all expressly defined.  Moreover, the person depicted in the image must be identifiable "from the image itself … or … from personal information displayed in connection with the image."  Furthermore, the image has to be "obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy."  Images that do not clear each of these hurdles fall outside the scope of the statute.

Second, a defendant must "intentionally" disseminate the image.  This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from "target[ing] broad categories of speech."

Third, the statute has seven enumerated exemptions. Some protected speech is taken outside of the scope of the statute by subdivision 5. For example, the statute exempts prosecution for image dissemination pursuant to essential law enforcement functions performed by both citizens and public safety personnel. The statute allows for private sexual images to be distributed "in the course of seeking or receiving medical or mental health treatment." Advertisers, booksellers, and artists are protected because images "obtained in a commercial setting" for legal purposes fall outside the statute's reach. Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and "exposure[s] in public." Educators and scientists are protected because there is an exemption for private sexual images disseminated for "legitimate scientific research or educational purposes." Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.

Fourth, to be prosecuted under the statute, a disseminator must act without consent. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute's scope.

Finally, this statute only encompasses private speech. "[R]estricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest." Snyder v. Phelps (2011). "Speech on matters of purely private concern is of less First Amendment concern" than speech on public matters that go to the heart of our democratic system. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985). Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is "at the core of protected First Amendment speech."

I think that narrowly crafted bans on revenge porn (or, to be precise, nonconsensual porn) are indeed constitutional, but I think that the key here is that the speech really can be defined—at a categorical level—as both harmful and essentially lacking in First Amendment value.

The harm alone, I think, can't be enough: For instance, accurate revelations of people's past misconduct (or public condemnation of someone as a supposed racist or sexist or homophobe or lion-killer) may lead to "employers frequently put[ing] the [subject's] application aside," and could lead to severe emotional distress or even suicide. Nor do I trust courts to decide on a case-by-case basis whether certain facts or opinions about people can be criminalized on the theory that they relate to matters of "private concern" (see pp. 783-88 of this article).

But (whether under the rubric of strict scrutiny or some other formulation), it does make sense that such speech could be restrictable when it reveals nothing other than how the person looks naked or when having sex. That is a rare category of speech that one can generally say lacks any real value to public discussion (or even to people's decisions about whom to trust in their daily lives), except in highly unusual cases. And, again, it does cause privacy harm that is both severe and (as unlike with the revelation of past misconduct) unjustifiable.

In any case, that's my tentative sense of the matter, and one that fits the results we've been getting so far from the state high court cases that have considered such statutes.

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  1. The nude human body is not obscene, nor is it contemptible. Only in the mind of the leftist would a depiction of nudity be offensive.

    Even prurient, sexually depraved and obscene material has also resulted in drops in sex crimes against real people, including child victims of real sexual abuse.

    I hated the supercilious manner of that Rep from Cali. When I saw her revenge porn pics in a British tabloid, she got my sympathy. They humanized her, and she was no longer a dirty, feminist traitor agent of the Chinese Communist Party. She was even smoking dope in the pics. I stopped thinking, arrest her. I started thinking, cute.

    Better laws would preclude the use of such depictions for adverse decisions about the victims, such as in employment. People fired a teacher or a police officer for appearing in a bikini on line. That should result in legal liability. Or else, the human body is considered obscene by the lawyer profession, as the dirty feminists do. The dirty feminist is a masking ideologist for the rent seeking purpose of the lawyer profession, the most toxic occupation in our nation, far more toxic than organized crime.

    1. I have known many feminists, but never any who considered the human body obscene!

      1. He’s engaging in what Freud would have called “projection”.

        1. Freud is a notorious quack. He called the real sexual abuse of patients fantasy and wish fulfillment.

          1. You’re still projecting

      2. Feminists call it exploitation. Until the sexes are equal all intercourse is rape, as well. Ironic. Porn is the only economic activity where females are paid 10 times more than males.

        1. Love the right bringing up dimly understood 1970s Second Wave thinking like it’s the latest and greatest.

          1. Sarc. Address the feminist opposition to porn, the economic activity where women get paid 10 times more than males.

            Address the 40% drop in sexual assaults on real crime victims, including women and children, attributable to the legalization of porn.

            Stop your stupid personal remarks. They violate the Fallacy of Irrelevance.

            1. First, feminism is hardly uniformly against porn. Maybe against it’s exploitative nature, but that’s not inherent in the product, only the current industry (and I think I read somewhere they’re getting better…)

              Second, you’re the one that brought up the all sex is rape which is certainly a lovely old chestnut that you’ll be hard pressed to find in the wild these days.

              Third, porn causes rape is some real outmoded nonsense akin to video games cause violence. You got a study to cite?

              1. Many studies from 1967 onward. Do your own research. I am not your research assistant.

                1. 1967. Seems legit, since your understanding of feminism is from about the same era.

          2. It got in the way of modern political power acquisition, and had to go, along with observations the more clothes a culture mandated women wear, the less their freedom statistically.

            It’s all about the power. Trump wrongly uses racial hatred. All Trump does must be wrong. Therefore everything against it is granted free reign as that is the worst evil. Above observations become periously close to something Trump could use, and so must be cancelled.

            All should stop participating in this clown show, from either side.

      3. Feminists/’women’s rights’ organizations have taken over from the Religious Right as the main driving force behind laws which seek to restrict sexual imagery and media in the contemporary West. The stated motivation is different of course but they are pretty much the same type of laws.

        This isn’t in dispute or a secret. Google articles about sexism in video games comics media or basically any major contemporary article having to do with sex in media and controversy etc and you won’t pull up many articles by Sister MacCready nowadays.

        1. That is because feminists are ugly. Looking at Democrats on TV, most are triple baggers. On top of being ugly, they are nasty.

        2. Sexism in art is not the same as sexual imagery.

          There are plenty of places where you can find all the sexual imagery you want, some even of video game characters!

  2. “…I think that narrowly crafted bans on revenge porn (or, to be precise, nonconsensual porn)…”

    If X agrees to be filmed by Y (his girlfriend), and the express or implied purpose is for their own private viewing later, I’m not understanding how this was nonconsensual. Sure, the guy did not consent to her (post-break-up) publication of their intimate video. But when I think of the term ‘nonconsensual porn, I picture someone secretly videotaping their partner, or taping only after the victim was deeply intoxicated, or something like that. Does ‘nonconsenusal porn’ really encompass situations where the filming itself was willingly and eagerly done by all parties, and it’s only the dissemination that was involuntary?

    1. Even more precisely, I believe Prof. Volokh is going for “nonconsensual [distribution of] porn [featuring the person who isn’t consenting]”.

      While I think the reservations about “revenge” are well-taken, I’m also not sure about the second part. In my idiolect, “porn” suggests material that is designed for distribution, so I don’t think I’d use the word for a picture or video that was only intended to be shared with a person’s romantic partner. But maybe that’s just me.

    2. If you give me your credit card so I can make a single purchase on your behalf, that is not a general authorization for me to use it to go on a spending spree. Consent is frequently limited to specific purposes.

  3. Whereever it matters ‘revenge porn’ can be handled via theft. copyright, or eavesdropping laws. Otherwise there is no need for a specific revenge porn law and its simply an excuse for further expansion of state control into what oughta be private business and the growth of the industrial-governmental victimization fetish complex.

    1. So some revenge porn falls into that category- when the recording is made without consent. The problem is that a lot of times the original recording was consensual, and it’s released by one of the parties. Usually we think about recorded things (say, conversations) that get released where consent was given originally, and we applaud that- look at what this politician said when they thought their statement would never really be public! Look at what that person admitted to! Here, the recording might well have been legal, and distribution would normally be legal as well.

      1. For that I’d say start being an adult and assume some responsibility for your life. If it was for anything else like a corrupt politician laundering money, they don’t get to magically recall and shred all the existing footage in the wild. There is no reason why a corrupt politician banging their subordinate for favors should be exempted because the poor feminists cried about it.

        1. Posing naked or posing in full Klan regalia — either picture would be embarrassing…

        2. I don’t think you can equate making a sex tape with laundering money or sexual harassment.

          Making a personal sex tape is not illegal and I’m not sure most of America would have any moral issue with it either.

          1. Halloween costumes aren’t illegal either…

            1. Sure, someone makes a consensual private tape of themselves wearing a telling outfit, they should also get recompense.

              Of course, one’s reputation after being outed as a Klan supporter (ironic or no) versus a sex haver may be a bit different.

    2. Whereever it matters ‘revenge porn’ can be handled via theft. copyright, or eavesdropping laws.

      The phenomenon generally described by the phrase “revenge porn” cannot be handled via theft, copyright, or eavesdropping laws. So either you misunderstand the issues or you don’t actually want that sort of revenge porn to be illegal.

      1. You’re in the legal field I presume so if you disagree, use those powers of deduction you learned in law school and state why specifically. Or are you trained in the new activist school of thought where your outrage is argument enough?

        1. Revenge porn is not theft, copyright infringement or eavesdropping for the same reason a dog is not a reptile: it does not fit within the definition of any of those terms.

        2. Suppose with my partner’s permission I record us having sex with the understanding the recording is just for the two of us to enjoy. We then break up and I post the tape on line.

          Nothing was stolen so it’s not theft. It’s not eavesdropping because I recorded it in my own home. And since I recorded it, I own the copyright. So under your theory, what recourse, if any, does my ex now have?

        3. Okay, lets lay out an example:

          A is a man

          B is a woman.

          A&B are involved in a sexual relationship.

          B consents to A recording a video of A&B having sex, for their own personal use later.

          A&B have an acrimonious breakup.

          A posts the sex video on a porn site to embarrass B. B did not consent to the video being publicly posted on a porn site

          Copyright violation? No. US copyright law does not create any sort of personal image right. All rights to a video recording under US copyright law belong to the person who created the recording, which would be A.

          Theft? No. Again, A owns the video.

          Eavesdropping? No, the recording was not done in secret, and B consented to the original recording, but not to public distribution of the recording.

          Given the specific scenario I laid out, do you think it fair that B should have no recourse against the public release of the video?

          1. Thank you for the simple summation. I don’t see where people are making all these absurd objections.

            1. Ben, why people are making all these stupid objections probably varies from one person to another but the two most common reasons would be a knee jerk reaction that anything that gives the state more power is bad, plus some commentators actually are misogynistic.

  4. All of this so people can send naked pics and avoid personal responsibility for doing so….

    1. The problem isn’t sending naked pics per say, it’s sending naked pics of someone who isn’t the sender.

      1. Yes, but who sent the naked pictures first?
        Sexting a real issue in high schools because it technically is kiddie porn.

  5. That is because feminists are ugly. Looking at Democrats on TV, most are triple baggers. On top of being ugly, they are nasty.

    1. That’s a really unpleasant thing to say, and speaks poorly of you and your character.

      1. I am sorry if everyone on MSNBC is uglier than a featured artist in a circus freak show.

        Bernie supporters are pretty good looking. Beautiful women did offer me bottles of water when I attended his Philadelphia rally in 2016. They refused my offer of money. They were good looking and kind.

        1. I don’t think you are sorry. Moreover, making gratuitous comments about women based upon your perception of their attractiveness (and implying that their attractiveness to you is somehow indicative of other qualities such as their character) is truly obnoxious.

      2. That’s overdetermined.

      3. This is the comment that gave it away?

        It is like flagging a Pavel Petrovich comment that says Patrick Ewing was overrated.

  6. “Finally, this statute only encompasses private speech. “[R]estricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest.”

    What part of “no law” doesn’t apply? And who gets to define what is or isn’t of “public interest”? I’m reminded of the Harper Valley PTA.

    1. Not an originalist, I guess.

    2. What part of “no law” doesn’t apply?

      Well, I’m pretty sure it’s the part that reads “Congress shall make”.

      By the time you’re dealing with state laws, you’re dealing with the question of exactly how the 14th Amendment protects the freedom of speech against the states, and the straightforward 1st Amendment literalism of “Congress shall make no law” doesn’t directly apply.

      This is as opposed to the 2nd Amendment, which has a text that in no way names Congress. If the 1st Amendment said “the right of the people to speak and publish freely shall not be infringed”, it would be obvious that restrictions on revenge porn were literally prohibited as soon as the 14th incorporated the right against the states, just as all federal and now state laws restricting the ownership and carrying of arms are literally prohibited.

    3. Congress constitutionally outlawed perjury, interstate threats of violence and threats of violence against federal officers, extortion, and other speech based crimes with a federal jurisdictional hook because those forms of speech were understood not to be part of “the freedom of speech” at the time of the ratification of the first amendment. Accordingly, those laws were not laws “abridging the freedom of speech.” Whatever your view of originalism, focusing on the wrong language in the first amendment gets you nowhere.

  7. I still ask who gets to define “public interest”?

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