In a curious and troubling decision, the Minnesota Supreme Court reversed the Court of Appeals holding that its state revenge porn statute, which as such statutes go is at least fairly well circumscribed and limited so that some of the worst excesses are avoided.
617.261 NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES.
It is a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when:
(1) the person is identifiable:
(i) from the image itself, by the person depicted in the image or by another person; or
(ii) from personal information displayed in connection with the image;
(2) the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and
(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.
At the district court, the state argued that the speech involved was unprotected as obscenity, which was abandoned before the court of appeals, where the state argued that the speech was unprotected under three historically-recognized categories: obscenity, speech integral to criminal conduct, and child pornography. The Supreme Court rejected all three, just as it rejected the argument that it was content neutral and merely a time, place and manner restriction.
However, the Supreme Court held that while the law prohibited protected speech, it survived strict scrutiny. The court initially describes the compelling state interest in proscribing the core conduct that the statute is directed to prohibit. This is entirely uncontroversial, as no serious person argues that “revenge porn,” as generally understood and as presented when describing the conduct giving rise to the need for prohibition, isn’t a horrible and extremely harmful thing. It is. Of this, there is no real doubt. The court held that this serves to demonstrate a “compelling state interest,” the first prong of strict scrutiny
The court then applies the second prong, whether the law is “narrowly tailored,” that it uses the “least restrictive means,” to meet that compelling state interest.
Because the statute proscribes only private speech that (1) is intentionally disseminated without consent, (2) falls within numerous statutory definitions, and (3) is outside of the seven broad exemptions, we find the statute to be narrowly tailored.
The core problem with criminalizing revenge porn, however, is that it simultaneously criminalizes speech beyond the harms the statute seeks to prohibit, and that despite the best efforts to narrow its reach, it nonetheless criminalizes, or chills, speech that falls within the ambit of the First Amendment and beyond the harm the statute purports to proscribe. But the court concludes that once it determined that the statute survived strict scrutiny, overbreadth was no longer an issue.
We note that the relationship between the overbreadth doctrine and a scrutiny analysis is unclear. Marc Rohr, Parallel Doctrinal Bars: The Unexplained Relationship Between Facial Overbreadth And “Scrutiny” Analysis in the Law of Freedom of Speech, 11 Elon L. Rev. 95, 109 (2019). There are instances when lower courts have made a decision based on strict scrutiny and the United States Supreme Court has affirmed on overbreadth grounds. Compare Stevens, 559 U.S. at 467, 482 (upholding the lower court’s strict scrutiny analysis using the overbreadth doctrine) with United States v. Stevens, 533 F.3d 218, 232–35 (3d Cir. 2008) (deciding the constitutionality of a dog-fighting statute on strict scrutiny grounds alone). In other cases, some members of the United States Supreme Court conduct a scrutiny analysis only and then other members evaluate a statute’s overbreadth. Compare Frisby v. Schultz, 487 U.S. 474, 488 (1988) (upholding a statute under intermediate scrutiny) with id. at 499 (Stevens, J., dissenting) (concluding the statute is overbroad). This variation in analytical approaches leads to understandable overlap in the relevant legal principles. See Austin, 155 N.E.3d at 467 (“Under intermediate scrutiny, a content-neutral statute is overbroad only when it burdens substantially more speech than necessary to advance its substantial governmental interest.”). As Professor Marc Rohr summarizes: “The relationship of these two modes of free-speech analysis has never been adequately explained by the Supreme Court.” Rohr, supra, at 109.
And Prof. Rohr is correct, the relationship between a strict scrutiny analysis and overbreadth has never been directly confronted. Based on this, the court decided that the statute, having survived strict scrutiny, was not subject to a secondary overbreadth analysis.
If a statute survives a scrutiny analysis, the court has already determined that all of the statute’s applications are constitutional. Neither Casillas nor his supporting amici identify a case where a statute survived strict scrutiny but was struck down as unconstitutionally overbroad. We have great difficulty imagining such a scenario. Therefore, we conclude that an overbreadth analysis is needlessly redundant if a statute has already survived strict scrutiny review.
This raises the question of whether overbreadth is subsumed by the “narrowly tailored” prong of strict scrutiny, or whether it is a separate inquiry. If a statute is overbroad, can it be narrowly tailored? If it’s as narrowly tailored as possible, what if it’s still overbroad? There is no clear law on this issue, and it presents a very serious violation of free speech.
What makes this holding inexplicable is that both the state and the court tacitly acknowledge that the sweep of the statute will include fully protected speech outside the core of the harm the statute prohibits, but so what?
The constitutional right to free speech stands as a bedrock for our democracy. This sacred right shields our citizens from prosecution and imprisonment while they debate and discuss the pertinent issues of our time. Even the most unpopular ideas and expressions find refuge under the First Amendment’s umbrella. To protect this fundamental promise, we evaluate any encroachment on free speech with both caution and skepticism.
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. 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. Minnesota Statutes § 617.261 is a representation of this constitutional compromise and adequately balances the fundamental right to free speech with the citizens’ right to health and safety.
This essentially states that if the harm is bad enough, although it prohibits protected speech despite its best efforts to avoid doing so, that the First Amendment violation isn’t important enough to overcome the need to criminalize speech. It is, as it says, a “constitutional compromise” that the court is prepared to live with, a “balance” of free speech with health and safety, even though the First Amendment doesn’t leave it to the courts to engage in such ad hoc weighing of constitutional rights.
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