Minnesota’s revenge porn law is unconstitutional because it criminalizes free speech, the state Court of Appeals ruled in overturning a Dakota County man’s conviction for distributing images of his ex-girlfriend having sex.
Part of the problem with the state law is that it uses an overly broad definition of obscenity and doesn’t require proof that the person disseminating the images “caused or intended a specific harm,” a three-judge panel said.
The law also doesn’t require the person who disseminated the images to know the person in the photographs had a reasonable expectation of privacy.
The law in Georgia
Georgia is one of more than a dozen states that have anti-revenge porn laws on the books.
Georgia's revenge porn law passed July 1, 2014.
The law makes it illegal to upload or transmit lewd photographs or video of an adult to the internet as a form of harassment.
The photos are typically accompanied by identifying information about the subject, including names, workplaces, social media accounts and emails. First-time offenders under the law would be guilty of a misdemeanor. Those caught more than once would be guilty of a felony, including as much as five years in jail and a $100,000 fine.
A Gwinnett man who posted explicit pictures of a woman online was sentenced to 24 months probation in April 2016 after he pleaded guilty to two counts of sexually explicit electronic transmissions. He also had to pay a $1,000 fine, complete community service, counseling and have no contact with the victim.
A problematic case
In the Minnesota case, the court called the behavior of Michael A. Casillas “abhorrent” but determined the state can’t punish him under the current law even though the state “legitimately seeks to punish that conduct.”
Casillas was charged in 2017 in Dakota County and convicted by a judge of “felony nonconsensual dissemination of private images” because he intended to distribute identifiable images of his former girlfriend.
He was sentenced to almost two years in prison and appealed. His conviction was reversed in a 29-page opinion written by Judge Michelle Larkin and signed by Judges Peter Reyes Jr. and Randall Slieter.
»RELATED: Ex-girlfriend sues Florida student, fraternity members for revenge porn
After Casillas and his girlfriend (identified only by her initials) broke up, he used her passwords to obtain private sexual photos and videos of her without her consent.
He then told her that he intended to distribute them and she objected, according to the ruling. She was among 44 people who received a screenshot of one of the videos depicting her in a sex act with another person.
The Dakota County district judge determined that Casillas had “seemingly threatened” his ex-girlfriend with publication, knew she wasn’t consenting and understood that she had a “reasonable expectation of privacy” regarding the image.
The Appeals Court’s analysis said the state law applies to a single dissemination of pictures of another person in a sex act, with their intimate parts exposed, if the defendant “knows or reasonably should have known” the person didn’t consent.
But that’s problematic because the standard allows a person to be convicted even if he didn’t actually know the person in the picture created the image with the expectation of privacy and didn’t consent. Nor does the law require proof that the disseminator of the images intended to cause harm, the court noted.
Court disagrees on obscenity
The court rejected the state’s argument that the law only covers “obscenity,” one of the limited categories of speech that isn’t protected by the Constitution.
The state “appeared to argue” that any image in which a person is engaging in sex with their intimate parts exposed is “patently offensive” and not protected, the court said.
“Although we agree that such nonconsensual dissemination is offensive, that is not the test for determining whether a work is obscene,” the court wrote.
Instead, the court said, the Minnesota law illegally extends beyond obscenity to a wide range of “expressive conduct.”
The state can appeal the decision, but the Supreme Court is not required to consider it.
About the Author
