Minnesota Supreme Court: 'Revenge porn' not protected free speech

The Minnesota Supreme Court upheld the state's revenge porn law on Wednesday, ruling that sharing nude images of a person without their consent is not constitutionally protected free speech.

The order reverses an earlier order by the state Court of Appeals, which struck down the 2016 law which made it a crime to publish, sell or disseminate private explicit images and videos without the person's consent.

That means outstanding cases that were on hold for about a year can now be prosecuted.

"The fact that we will see justice in some of [the cases] in the future because of this ruling is such great news," said Rep. John Lesch, DFL-St. Paul, the bill's chief author. "To have [the law] come through and be vindicated by the Supreme Court today is one of my greatest legislative accomplishments in the past 18 years, if not the greatest."

The government has a "compelling" interest in legislating what has become commonly known as "revenge porn," and has narrowly defined the parameters to avoid violating First Amendment rights, the Supreme Court wrote in its unanimous opinion.

The challenge to the state law followed the 2017 Dakota County conviction of Michael Anthony Casillas, who was found guilty of felony nonconsensual dissemination of private sexual images for sending a video of his ex-girlfriend having sex with another man to 44 people and for posting it online.

Casillas was sentenced to nearly two years in prison. He initially asked the district court to dismiss the case against him, arguing that the law was too broad and violated his constitutional rights. The court rejected the motion.

The Minnesota Court of Appeals later reversed his conviction and ruled that the law uses an overly broad definition of obscenity and doesn't require proof that the person disseminating the images "caused or intended a specific harm."

However, the Minnesota Supreme Court wrote in its ruling that while many unpopular expressions are protected free speech, revenge porn is not.

"The nonconsensual dissemination of private sexual images, however, presents a grave threat to everyday Minnesotans whose lives are affected by the single click of a button," the court wrote. "When faced with such a serious problem, the government is allowed to protect the lives of its citizens without offending the First Amendment as long as it does so in a narrow fashion."

The Supreme Court sent the case back to the Court of Appeals to consider other claims Casillas made in his appeal.

According to the decision: Victims of revenge porn can suffer from mental health problems, alcohol and drug abuse, loss of their jobs and humiliation, among a host of other consequences. The effects are "so profound," the court wrote, that victims' psychological profiles match sexual assault survivors, and some have died by suicide.

"This is sensitive information; this is as sensitive, if not more so, than your Social Security number, your medical data," Lesch said. "This can ruin your life."

The issue is "widespread and continuously expanding," the ruling said in noting the government's justified interest in criminalizing such activity.

The state law is "narrowly tailored," covers private speech and provides exemptions for images that appear in advertisements, books and art.

The law makes it a crime to "intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed" when they are identifiable, when they have not consented and when the image was obtained when they had an expectation of privacy.

The crime is a gross misdemeanor that can be elevated to a felony if additional factors are present.

While the First Amendment broadly protects free speech, the U.S. Supreme Court has allowed restrictions in limited areas in which the " 'slight social value' " of the expression is " 'clearly outweighed by the social interest in order and morality,' " the court wrote.

Those areas include obscenity, defamation, fraud, incitement and "speech integral to criminal conduct."

Dakota County Attorney James Backstrom, whose office prosecuted Casillas, praised the Supreme Court decision.

"The nonconsensual dissemination of private sexual images causes permanent and severe harm that can last a lifetime," Backstrom said in a written statement. "The decision is an extremely important victory for this crime's many victims."

Staff writers Briana Bierschbach and Rochelle Olson contributed to this report.

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib