The Volokh Conspiracy
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Minnesota Revenge Porn Law Upheld
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.