Case Summary and Outcome

The Supreme Court of Minnesota (“the Court”) ruled that the “revenge porn” statute (Minnesota Statutes § 617.261 (2018)), which was earlier struck down by the Minnesota Appeals Court, survives the strict scrutiny standard and hence is a constitutional restriction on speech.

The case concerned Michael Casillas, the respondent, who was initially sentenced with 23 months in prison by the district court for the non-consensual dissemination of his former girlfriend’s private sexual photos and videos online and to 44 recipients. The sentence by the district court was overturned by the Minnesota Appeals Court on grounds of overbreadth and violation of the First Amendment. The Appeals Court, inter alia, observed that the statute had the potential to reach a substantial amount of protected speech, which could have a chilling effect. It further declared the statute invalid and thus reversed Casillas’ conviction for “nonconsensual dissemination of private sexual images.”

On further appeal, the Supreme Court of Minnesota held that the impugned statute is “a representation of this constitutional compromise and adequately balances the fundamental right to free speech with the citizens’ right to health and safety.” [p. 26]

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Facts

In 2017 Michael Anthony Casillas, the appellant, was charged with nonconsensual dissemination of private sexual images under the Minn. Stat. § 617.261.

The complaint was filed by A.M. who alleged that Casillas obtained her account log-in information for her wireless and television provider accounts while they were in a relationship. After their relationship had ended, Casillas accessed those accounts to obtain photos and videos containing sexual images of A.M. He informed her that he planned to release the photos and videos, to which A.M. objected. A.M subsequently received a screenshot of one video showing her engaging in a sexual act with another individual that had been sent to 44 recipients and posted online.

Upon being charged, Casillas argued that Minn. Stat. § 617.261 was unconstitutionally over broad and violated the First Amendment.

The District Court rejected Casillas’ First Amendment challenge, on two grounds. First, the Minn. Stat. § 617.261 regulates obscenity, which is not protected by the First Amendment. Second, the respondent intentionally disseminated an identifiable image of the victim depicted in a sexual act. The Court found that under the circumstances, A.M. had a reasonable expectation of privacy and “that he understood it was an image that should remain private.”

The District Court sentenced Casillas to a 23-month prison term following Minnesota’s sentencing guidelines, which he appealed to the Minnesota Appeals Court. Post the Appeals Court’s decision which struck down the impugned statute as inconsistent with the First Amendment, the case reached the Supreme Court of Minnesota.

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Decision Overview

The primary issues before the Court were (i) whether the impugned statute is overbroad and therefore facially invalid under the First Amendment, (ii) whether the impugned statute survives strict scrutiny, and if yes, what would be its bearing on the issue of overbreadth.

The Court began by recalling that the First Amendment provides that “Congress shall make no law…abridging the freedom of speech”, and that it “…generally prevents the government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.” [p. 5] It extends to expressive conduct including videos and photographs, and “applies with equal force to speech or expressive conduct on the Internet.” [p. 6] Further, it reiterates that any significant restriction on the First Amendment carries a heavy burden of justification and it is possible for the state to meet this standard. [p. 6]

Re: Scope of the impugned statute and whether it covers protected speech

The Court highlighted that challenges to unprotected speech restrictions are analyzed differently than challenges to protected speech; overbreadth challenges fail in cases where the impugned statute only proscribes unprotected speech. Further, the Court highlighted that “the United States Supreme Court has “permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’…these include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct… child pornography, true threats, and fighting words….” [p. 8] In order to successfully argue for a new category of unprotected speech, one has to present “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.” [p. 8]

The Court determined that the State has failed to justify the establishment of a new category of unprotected speech, and that the proposed category is actually based on the speech’s transmission method and not the underlying content which is contrary to how unprotected speech categories have been determined.

Re: Whether the impugned provision regulates historically recognized unprotected speech only

The State argued that the impugned provision falls within three historically recognized categories (obscenity, speech integral to criminal conduct, and child pornography), and does not cover protected speech. Responding to the State’s arguments that the impugned provision falls within three historically recognized unprotected categories, the Court observed that the impugned provision does cover some protected speech.

Firstly, the Court found the impugned statute does regulate speech that is outside the definition of what is considered obscenity because of its wide scope (the court concurs with the Appeals Court’s determination of it being inconsistent with the Miller test for obscenity). Secondly, none of the speech encompassed by the impugned state is speech integral to criminal conduct as such media are not generally used to facilitate the commission of a crime. Thirdly, the impugned statute does not restrict only child pornography and also extends to images depicting adults.

Re: On the nature of the restriction and whether it survives strict scrutiny

The respondent argued that the impugned statute is a content-based restriction and does not survive strict scrutiny. The State countered that the statute is a content-neutral time, place, and manner restrictions and therefore only need to survive immediate scrutiny analysis.

1. Understanding the tests and explanations of legal tests argued

Relying on precedents, the Court began its observation by first defining and explaining the various tests and explanations for content-based restriction, content-neutral restrictions, and immediate scrutiny analysis.

• The Court highlights that a “content-based restriction is one ‘that target[s] speech based on its communicative content.’” [p. 14]; such restrictions are “’ are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.’” [p. 14] Such narrow tailoring would mean that the statute is the “least restrictive means for addressing” the government’s interest, however, it “need not be ‘perfectly tailored’ to survive strict scrutiny.” [p. 14]
• Further, the Court reiterated that content-neutral restrictions “are justified without reference to the content of the regulated speech,’” and are constitutional if “’ they are narrowly tailored to serve a significant governmental interest, and . . . they leave open ample alternative channels for communication of the information.” [p. 14]
• On immediate scrutiny analysis, the Court reiterated that the impugned restriction should not be “…substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” [p. 14-15]

2. Determining whether the State has met the strict scrutiny test

The Court observed that, in the present case, it need not determine whether the impugned statute is content-based or content-neutral since the State has met its burden for the strict scrutiny test.

It further observed that the State has identified an “actual problem” that is of paramount importance when it seeks to target non-consensual dissemination of private sexual images under its authority to safeguard its citizen’s health and safety. Relying on extant academic studies and previous similar cases, the Court notes in detail the various harms that such conduct results in, including post-traumatic stress disorder, anxiety, depression, despair, loneliness, alcoholism, drug abuse, and significant losses in self-esteem, confidence, trust, unemployment, suicide, etc.

3. Determining whether the impugned statute is narrowly tailored and employs the “least restrictive means”

The Court ruled that the State has carried the burden of “narrowly tailoring” the statute and employing the “least restrictive means” to solve the actual problem.

It observed that (i) the legislature has explicitly defined the type of image to be criminalized; (ii) the statute requires mens rea to be a legal ingredient; (iii) the statute lists several specific exemptions that escape the scope; (iv) the statute requires the absence of consent to be a legal ingredient; (v) the statute only encompasses private speech and does not prohibit speech that is at the core of protected speech.

Furthermore, the Court also noted that “even if f we assume that the statute creates a content-based restriction, the State has satisfied its burden…” [p. 22]

Re: On the issue of overbreadth

The respondent argued that the impugned statute is unconstitutionally overbroad since it burdens a substantial amount of protected speech. The State countered that the amount of criminalized protected speech is minimal when compared to the statute’s legitimate sweep. The Court noted that the Appeals Court had agreed with the respondent and rested its opinion on a finding of overbreadth.

The Court began its analysis by remarking that the relationship between the overbreadth doctrine and a scrutiny analysis is unclear. Relying on precedents and academic literature, the Court noted that when a statute is simultaneously challenged on scrutiny and overbreadth grounds, a scrutiny analysis should be conducted first. This is because a “statute that survives a scrutiny analysis will necessarily survive the overbreadth challenge.” [p. 24]

Conclusion

Accordingly, the Court reversed the decision of the Appeals Court and remanded to it for consideration and decision on the remaining issues raised.

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