On August 1, 2016, a new Minnesota law came into effect criminalizing acts involving what is commonly known as “revenge porn.” The law is intended to protect people from the actions of jilted partners who post on the internet or otherwise distribute sexual images of their ex’s, often including names and contact information. Minnesota Statute 617.261, entitled “Nonconsensual Dissemination of Private Sexual Images,” makes it a crime “to intentionally disseminate” a private sexual image of another, identifiable person. Under this law, the person who disseminated the image (the “actor”) does not need to have actual knowledge that the person in the image (the “subject”) does not consent to its distribution; rather, the actor must either know or reasonably should know that the subject does not consent. So even if the subject did not explicitly say, “No, you may not distribute this photo,” if the actor should have known that the subject did not consent, the actor may be guilty. Similarly, the actor does not need to have actual knowledge that the subject had a reasonable expectation of privacy regarding the image. If circumstances indicate the actor either knew or reasonably should have known of the subject’s expectation of privacy, the actor may be guilty.
A first-time violation of the Revenge Porn law without aggravating circumstances constitutes a Gross Misdemeanor level offense, with a maximum penalty of one year in jail and a $1000 fine. The violation may become a Felony level offense, with a maximum penalty of three years in jail and a fine of $5000, if the actor has a previous conviction under the law, or if any of the following exist: the person depicted in the image suffers financial loss due to its dissemination; the actor disseminates the image with intent to profit; the actor maintains an online or mobile means to disseminate the image; the actor posts the image on a Web site, the actor disseminates the image with intent to harass the person in the image; or the actor obtained the image through theft, interference with privacy, or computer hacking. The fact that the subject consented to the image being captured or kept does not constitute a defense to this crime.
Supporters of the law say it is narrowly written to avoid trampling on people’s right to free expression, but any time the State tries to outlaw speech related conduct, First Amendment advocates take notice. A similar speech-related issue lies at the heart of the “Lunch Lady sexting case,” State of Minnesota v. Muccio, 881 N.W. 2d 149 (Minn. Ct. App. June 20, 2016), currently on appeal with the Minnesota Supreme Court.
In Muccio, an Inver Grove Heights middle and high school cafeteria worker met a boy when he was in eighth grade and began exchanging texts with him. The boy’s father found nude photos sent by the woman on the fifteen-year-old’s iPad five months later, and police subsequently found texts from her stating that she wanted to have sex with the boy. The Minnesota Court of Appeals upheld the district court’s dismissal of one count of “felony communication with a minor describing sexual conduct” and found the charging law, Minnesota Statute 609.352, subd. 2a(2), to be overbroad in that it prohibits a substantial amount of protected speech rather than being limited to unprotected speech. Id. at 159. Because it “restricts significantly more speech than is necessary to achieve the state’s compelling interest of protecting children from sexual predators on the Internet,” the Court found that the law is not narrowly tailored. Id. at 160. The Minnesota Supreme Court heard oral arguments in Muccio on November 2, 2016, and the state awaits a decision.
The new Revenge Porn law may be more narrowly written than the law at issue in Muccio, but it remains new enough that legal challenges to its constitutionality have not yet been decided in the appellate courts. If you believe that your right to free speech has been violated, please contact Wilson Law Group for a free consultation.