Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
In Progress Mixed Outcome
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The Minnesota Appeals Court struck down a “revenge porn” statute finding it overly broad and in violation of the First Amendment. Casillas challenged the statute after he was sentenced to 23 months in prison for accessing his former girlfriend’s wireless account, sending videos of her engaging in a sexual act with another individual to 44 recipients and then posting the videos online. While the Court found Casillas’ conduct to be “abhorrent” and it affirmed the state’s legitimate interest to prevent harm, it found the statute flawed as it did not require proof of an intent to harm or of actual harm. The Court reasoned that an intent requirement was necessary to ensure the statute did not target broad categories of speech, such as sexually explicit images circulated on the internet with consent. Further, the way the Statute was written, negligent conduct could result in criminal sanctions. Accordingly, the Court determined that the statute had the potential to reach a substantial amount of protected speech, which could have a chilling effect. The Court declared the statute invalid and thus reversed Casillas’ conviction for “nonconsensual dissemination of private sexual images.”
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.K.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.K.M. He informed her that he planned to release the photos and videos, to which A.K.M. objected.
A.K.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, “he intentionally disseminated an identifiable image of A.K.M. depicted in a sexual act.” [p. 3] The Court found that under the circumstances, A.K.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.
The ruling of the Appellate Court was given by Judge Larkin who was also the Presiding Judge.
The primary issue for determination was whether Minn. Stat. § 617.261 was over broad and therefore facially invalid under the First Amendment to the US Constitution. As the case concerned a First Amendment challenge, the Appellate court had to hear the case de novo, as a fresh claim without reliance on the District Court ruling. (Dunham v. Roer, 708 N.W.2d 552, 562 (Minn. App. 2006))
The Court began by recalling that the first amendment provides that “Congress shall make no law…abridging the freedom of speech,” and thus the government “may not restrict expression because of its messages, ideas, subject matter or content.” Further, the First Amendment principles “apply with equal force to speech or expressive conduct on the internet” as established in Kaplan v. California, 413 U.S. 115, 119 (1974). [p. 3] The Court concurred that the statute at issue restricted expressive conduct.
In order to hold Minn. Stat. § 617.261 as unconstitutionally over broad on its face, the challenger must establish that:
A second type of facial challenge may invalidate a law as over broad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” [p. 5]
The Court also recalled an exception whereby a law may be challenged even if it is constitutionally applied, but the “enforcement of an overbroad law chills protected speech, which inhibits the free exchange of ideas.” (State v. Hensel, 901 N.W.2d 166, 170 (Minn. 2017)) [p. 7]
Thus, the Court laid out the appropriate test for the challenge. First, it had to assess the “scope and sweep of the statute” and then ask whether and to what extent, it extends to protected categories of speech or expressive conduct. If the statute infringes on a “substantial amount of expressive conduct,” then the Court must consider whether it could be remedied by a narrowing construction or severing of the problematic language. [p. 7] If those remedies are insufficient, and the statute is found to be substantially overbroad, it would need to be invalidated as a last resort.
Considering these principles, the Court proceeded to examine the text of Minn. Stat. § 617.261.
The Minn. Stat. § 617. 261 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, in whole or in part, when: 1) the person is identifiable; 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.” [page 9]
Violations of subd.1 will result in a misdemeanor, but a person may be found guilty of a felony charge with a penalty of up to three years in prison if s/he posts the infringing image on a website, disseminates the photo with an intent to harass the victim, profits from the distribution, or causes the victim to sustain a financial loss, among other factors relating to dissemination. An intent to harass is defined and any act “that would cause a substantial adverse effect of the safety, security, or privacy of a reasonable person.”
The Court, however, noted that the Minnesota statute did not require proof of an actual harm or intent to harm, rather those aspects determine the level of the criminal offense. In other words, the statute’s reach is broad and extends also to dissemination of images in cases where the actor did not intend to cause harm, violate privacy or was unaware that consent had not been granted.
The Court rejected the State’s argument that that the statute only regulates expressive conduct exempt from First Amendment protections, namely obscenity and invasion of privacy in the present case. The Court agreed that the dissemination of explicit images without consent is an offensive act, but it did not necessarily follow that all explicit images would fit the definition of obscene. According to Supreme Court precedent, the definition of obscenity must be “carefully limited” to include only materials which “appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value.” [p. 12] Further, the statute focused more on how an image was disseminated, rather than on the explicit nature of the content. The Court determined that there were circumstances where the statute could restrict the dissemination of sexually explicit images which did not meet the threshold for obscene material, which were shared with consent – and hence without invading privacy – that would be subject to First Amendment protections.
The Court further rejected the State’s argument that the statute was a privacy regulation , thus exempting it from the reach of the First Amendment. Citing the Supreme Court precedent in Connick v. Myers, 461 U.S. 138, the Court explained that speech on private matters does not fall “into one of the well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression but all persons in its jurisdiction.” [p.14] Only “substantial invasions” of privacy may be restricted, but the statute, as noted above, could extend to circumstances where images were distributed with consent.
The Court found, therefore, that the sweep of the statute was not “limited to expressive conduct that is categorically excluded from First Amendment protection.” [p. 14]
The Court then turned to whether the sweep of the statute was legitimate or whether it was overly broad.
The Court agreed with Casillas that the statute’s “lack of an intent-to-harm element, coupled with a negligence mens rea, runs afoul of the First Amendment.” [p. 17] The State argued that the statute sought to prevent harms such as harassment, which the Court concurred was a legitimate aim. However, the Court noted that under the statute people could be punished for disseminating images “without either knowingly causing or intending to cause a specified harm.” By way of comparison, the Court discussed anti-stalking and harassment laws which were narrowly tailored to only restrict conduct that was intended to cause harm. The inclusion of an intent requirement, “ensures that the statute does not target broad categories of speech.” [p. 20] In the present case, the statute regulated the non-consensual dissemination of sexual images even without proof of an intent to harm or causation of harm.
Regarding the negligence mens rea, or harm through negligence, the Court cited its own case law relating to aggressive marketing campaigns to affirm that overbroad statutes could “subject even negligent conduct to criminal sanctions.” [p. 17]
The Court considered that the statute would need to include intent as well as actual harm elements in order to avoid prosecuting merely negligent behavior. It referred to Supreme Court case law which found, that “[b]y foregoing any requirement that the harm actually occur, the Legislature criminalized behavior, including substantial speech and expressive conduct, that will have no impact on the legitimate purpose of the statute: to prevent the harm.” [p. 18] The negligence mens rea also had to be addressed as sanctions for negligent behavior can have a potential chilling effect.
Regarding the intent element, Minnesota Supreme Court case law provides the authority to include an “illicit motive or malicious purpose” in criminal statutes. The Court discussed examples of similar statues from other states such as Vermont which include an “intent requirement to require knowledge of both the fact of disclosing, and the face of non-consent,” as well as “a specific a specific intent to harm, harass, intimidate, threaten, or coerce the person depicted or to profit financially.” [p. 21]
In conclusion, despite the statute’s “legitimate harm-preventing purpose” the dual flaws of negligence mens rea and the missing intent element, allowed the statute to proscribe protected speech, which was not in the State’s interest.
Next the Court had to assess whether Minn. Stat. § 617.261 prohibited “a substantial amount of constitutionally protected speech.”
The Court observed that the free flow of information in the age of the Internet results in the wide dissemination of noncommercial images of people depicted in sexual acts, often with the consent of the subject of the images. Further, some individuals also seek to promote the broad dissemination of such images for either political or economic reasons. The Court noted that the District Court’s ruling was based on an assumption that any and all sexually explicit images would be by their nature private and distributed without consent.
Accordingly, the Court again found Minn. Stat. § 617.261’s inclusion of negligence mens rea problematic. The statute did not define or explain circumstances to account for actors who disseminate images without knowledge that consent had not been given or that the person depicted had a reasonable expectation of privacy.
The Court relied on the dissenting opinion in People v. Austin to illustrate that there are a substantial number of situations in which a person sees an image that may have been disseminated in violation of Minn. Stat. § 617.261 and further disseminates that image without knowing that the subject of the image did not consent to the original dissemination.
Based on the above, the Court determined that the statute had the potential to reach a substantial amount of protected speech which could have a chilling effect. [p. 25] Therefore, the statute was overly broad and in violation of the First Amendment.
Finally, the Court considered whether applying a narrowing construction or severing problematic language from the statute would remedy the flaws.
The Court rejected the State’s proposition to limit the statute to obscene material on the ground that it was clear from the language in the statute that the legislature did not envision it to be that narrow. It also noted that while it could strike aspects of the statute it could not add additional language, such as to solve the missing intent element.
The Court considered severing the negligence mens rea standards from subdivisions 1(2) and (3) of the Minn. Stat. § 617.261, but noted that would create a legal conflict. The severing would effectively limit the statute’s reach to circumstances where an individual knew both that the person depicted in the image did not consent to the dissemination and that the image was obtained or created under circumstances indicating that the person depicted had a reasonable expectation of privacy. While that would restrict the scope to instances where harm was clearly intended, it would also result in disseminators being charged with a gross misdemeanor as well as a felony, due to the way the statute was written. [p. 27]
Therefore, the Court concluded the statute was “unable to be saved by a narrowing construction or severance,” and correcting the constitutional defects would require a full rewriting of the statute which would constitute a “serious invasion of the legislature’s domain.” [p. 28]
In closing, the Court stressed that Casillas’ conduct was “abhorrent” and it affirmed the state’s legitimate interest to prevent harm, however, the current statute was overly broad in violation of the First Amendment and its flaws too complex to be remedied. Thus, it declared Minn. Stat. § 617.261 facially invalid under the First Amendment to the US Constitution. Casillas’ conviction and sentence under the statute were thereby reversed. [p. 29]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome. On the one hand, it expands expression by holding that Minn. Stat. § 617.261 is over broad and therefore invalid under the First Amendment to the United States Constitution, however, on the other hand it highlights the lack of clearly established legal mechanisms to address such violations and protect privacy.
The Court rightly held that the statute reached a substantial amount of protected speech and could lead to criminal convictions for merely negligent conduct, all of which could have a chilling effect. However, the striking down of the statute leaves victims in Minnesota without an effective remedy for such online abuses. While forty-six states and the District of Columbia have passed revenge porn laws, there is a trend to challenge them on First Amendment grounds. In a similar case, Illinois v. Austin, the Illinois Supreme Court overturned a decision to find that distributing private sexual images without permission was not constitutionally protected free speech on the ground that the law protected privacy rather than restricted speech. Challenges in other states have also had mixed results as the First Amendment prohibits content-based restrictions, and provides very few exceptions such as “speech or expressive conduct designed to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct, so-called fighting words, child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent.” (State of Minnesota v. Michael Anthony Casillas, p. 11) Courts have been hesitant to expand the list of unprotected speech despite the nature of the internet and the growing harms, which may eventually require the Supreme Court to weigh in.
Globally, by comparison, a range of other national jurisdictions have also passed legislation addressing similar abuses. There are not yet any internationally recognized standards on the issue, although there have been calls to include non-consensual pornography (NCP) in The Convention on Cybercrime of the Council of Europe (CETS No.185), known as the Budapest Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Debra L. Logan, Note, Exposing Nipples as Political Speech, 41 Law & Psychol. Rev. 173, 179 (2017)
Clay Calvert & Robert D. Richards, Porn in Their Words: Female Leaders in the Adult Entertainment Industry Address Free Speech, Censorship, Feminism, Culture and the Mainstreaming of Adult Content, 9 Vand. J. Ent. & Tech. L. 255 (2006).
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