State of Minnesota,

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0576

Court of Appeals Hudson, J.

State of Minnesota,

Appellant,

vs. Filed: December 30, 2020
Office of Appellate Courts
Michael Anthony Casillas,

R e s p o n d e n t .
________________________

Keith M. Ellison, Attorney General, Saint Paul, Minnesota; and

James C. Backstrom, Dakota County Attorn ey, Anna R. Light, Assistant Dakota County
Attorney, for appellant.

John T. Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota, for respondent.

Leita Walker, Ballard Spahr LLP, Minneapolis, Minnesota;

Michael A. Bamberger, Richard M. Zuckerma n, Dentons US LLP, New York City, New
York; and

Raleigh Hannah Levine, Mitchell Hamline School of Law, Saint Paul, Minnesota, for amici
curiae American Booksellers Association, A ssociation of American Publishers, Inc.,
Media Coalition Foundation, Inc., and National Press Photographers Association.

Isabella Salomão Nascimento, Teresa J. Nelson, American Civil Liberties Union of
Minnesota, Minneapolis, Minnesota, for amicus curiae American Civil Liberties Union of
Minnesota.

Tracy Shoberg, Battered Women’s Justice Project, Minneapolis, Minnesota;

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Rana S. Alexander, Standpoint, Saint Paul, Minnesota;

Lindsay J. Brice, Minnesota Coalition Against Sexual Assault, Saint Paul, Minnesota; and

Katherine S. Barrett Wiik, Best & Flanagan LLP, Minneapolis, Minnesota, for amici curiae
Cyber Civil Rights Initiative, Standpoint, Minnesota Coalition Against Sexual Assault, and
the Battered Women’s Justice Project.

Travis J. Smith, Murray County Attorney, Kelsey R. Kelle y, Assistant Anoka County
Attorney, William C. Lundy, Certified Student Attorney , Slayton, Minnesota, for amicus
curiae Minnesota County Attorneys Association.
________________________

S Y L L A B U S
Although Minnesota Statutes § 617.261 (2 018), prohibits more than obscenity, it
survives strict scrutiny and, therefore, is a constitutional restriction on speech.
Reversed and remanded.
O P I N I O N
HUDSON, Justice.
This case asks us to decide whether Mi nnesota’s statute that criminalizes the
nonconsensual dissemi nation of private sexual images , Minnesota Statutes § 617.261
(2020), is unconstitutional under the First Ame ndment to the United States Constitution.
The district court found the statute was cons titutional because it only prohibits obscenity,
which is unprotected speech. The court of a ppeals reversed, holding that the statute
prohibits more than obscenity and is unconstitutionally overbroad because it criminalizes
a substantial amount of protected speech. Although we agree that Minnesota Statutes
§ 617.261 prohibits more than obscenity, we conclude that the statute does not violate the

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First Amendment because it survives strict scrutiny. Accordingly, we reverse the court of
appeals’ decision and remand to that court for consideration of the outstanding issues raised
by respondent Michael Anthony Casillas.
FACTS
In 2016, Michael Anthony Casillas and his girlfriend A.M. were engaged in a
three-month romantic relationship. During th is period, A.M. gave Casillas access to her
Dish Network account so he could watch television at work. After the relationship ended,
Casillas used A.M.’s login information to ac cess her other online ac counts, including her
Verizon cloud account. From the cloud acco unt, Casillas obtained a photograph and a
video that depicted A.M. engaged in sexual relations with another adult male.
Casillas sent A.M. a text message threat ening to disseminate both the photograph
and video while c oncealing his identity through fake email accounts and IP changers
(devices used to obfuscate th e identity of the person accessi ng the internet). A.M. told
Casillas that sharing the photograph and vide o without her consent is a prosecutable
offense. Undeterred by A.M.’s warning, Casillas carried out his threat by sending the video
to 44 individuals and posting it online.
Casillas was charged with a felony-level violation of Minnesota Statutes § 617.261,
the statute that criminalizes the nonconsensual dissemination of private sexual images. In
Dakota County District Court, he moved to dismiss the ch arge on constitutional grounds,
alleging that the statute is overbroad, an impermissible content-based restriction, and void
for vagueness. The district court denied the motion, concluding that the conduct regulated
by the statute is entirely unprotected obscene sp eech. The district court also determined

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that any degree of overbreadth was insubstan tial. Following a stipulated-facts trial,
Casillas was found guilty and sentenced to 23 months in prison.
The court of appeals reversed, concluding that the statute prohibits more than
obscenity and is unconstitutionally overbroad because it “proscribes a substantial amount
of protected expressive conduct.” State v. Casillas, 938 N.W.2d 74, 90 (Minn. App. 2019).
Because the court of appeals held that the stat ute was overbroad, it did not rule on other
issues raised by Casillas. 1 We granted the State’s petition for further review to decide
whether Minnesota Statutes § 617.261 is unconstitutional under the First Amendment.
ANALYSIS
Casillas claims Minnesota Statutes § 617.261 violates the First Amendment for two
reasons.2 First, he asserts that the statute is an impermissible content-based restriction that
is not narrowly tailored to serve a compelling government interest. Second, he argues that
the statute is overbroad because it punishes the act of dissemination itself without any
accompanying criminal intent or causation of harm.
We review constitutional challeng es to statutes de novo. State v. Jorgenson ,
946 N.W.2d 596, 601 (Minn. 2020). Statutes are presumptively constitutional and we only
strike them down “if ab solutely necessary.” Id. When a statute is a content-based
restriction on speech, however, “[ t]he State bears the burden of showing that” the statute

1 Casillas also argued before the court of appeals that Minnesota Statutes § 617.261
is void for vagueness under the due process clause and challenged his sentence. Casillas,
938 N.W.2d at 78 n.1.

2 The State does not challenge Ca sillas’s standing in this case.

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“does not violate the First Amendment.” State v. Melchert-Dinkel , 844 N.W.2d 13, 18
(Minn. 2014).
To prevail on an overbreadth claim, a challenger “must establish that ‘a substantial
number of [a statute’s] applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.’ ” State v. Hensel, 901 N.W.2d 166, 170 (Minn. 2017) (alteration
in original) (quoting United States v. Stevens, 559 U.S. 460, 473 (2010)). The overbreadth
doctrine is “strong medicine” that is employed sparingly. Broadrick v. Oklahoma ,
413 U.S. 601, 613 (1973).
I.
The First Amendment of the United Stat es Constitution provides that “Congress
shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I.3 The First
Amendment’s Free Speech Clause applies “t o the States through the Fourteenth
Amendment.” Virginia v. Black, 538 U.S. 343, 358 (2003).
“The First Amendment generally prevents government from proscribing speech, or
even expressive conduct, because of disapproval of the ideas expressed.” R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992) (citations omitted). “[T]he amendment establishes that
‘above all else,’ the govern ment ‘has no power to restri ct expression because of its

3 The Minnesota Constitution has its own free speech provision which allows “all
persons” to “freely speak, write and publish their sentiments on all subjects.” Minn. Const.
art. I, § 3. Minnesota’s free speech provision “provides protections co-extensive with those
under the United States Constitution.” Jorgenson, 946 N.W.2d at 601 n.2; see also State
v. Wicklund, 589 N.W.2d 793, 798–801 (Minn. 1999) (analyzing Minnesota’s free speech
clause and “declin[ing] to extend the free speech protections of Article I, Section 3 of the
Minnesota Constitution beyond those protections offered by the First Amendment”).

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message, its ideas, its subject matter, or its content.’ ” Melchert-Dinkel, 844 N.W.2d at 18
(quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972)). The Free Speech Clause
is not limited to “the spoken or written word,” but extends to other expressive conduct
including videos and photographs. Texas v. Johnson , 491 U.S. 397, 404 (1989).
Additionally, it “appl[ies] with equal force to speech or expressive conduct on the Internet.”
In re Welfare of A.J.B., 929 N.W.2d 840, 846 (Minn. 2019).
However, “First Amendment rights are no t absolute under all circumstances.”
Greer v. Spock , 424 U.S. 828, 842 (1976) (Powell, J., concurring); see also Miller v.
California, 413 U.S. 15, 23 (1973) (“The First a nd Fourteenth Amendments have never
been treated as absolutes.” (c itation omitted) (internal quotation marks omitted)). While
“any significant restriction of First Ame ndment freedoms carries a heavy burden of
justification,” this burden is not an im possible standard for the State to meet. Greer,
424 U.S. at 843 (Powell, J., concurring). With these principles in mind, we turn now to
Minnesota Statutes § 617.261.
II.
Minnesota Statutes § 617.261 provides that:
It is a crime to intentionally disse minate 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 pe rson depicted in the image or
by another person; or
(ii) from personal information di splayed in conn ection 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

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(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.

Minn. Stat. § 617.261, subd. 1. Violatio n of the statute is a gross misdemeanor. Id.,
subd. 2(a). Any one of seven factors, however, can aggravate an offense to a felony. Id.,
subd. 2(b). In this case, Cas illas was charged with a felony ba sed on his intent to harass
the victim by disseminating the private sexual images. Id., subd. 2(b)(5). The statute also
contains seven exemptions to prosecution and an expans ive definitional section. Id.,
subds. 5, 7.
As a preliminary matter, we must ascerta in the scope of Minnesota Statutes
§ 617.261 and decide whether the statute cove rs any protected speech. Challenges to
unprotected speech restrictions are analyzed differently than challenges to protected speech
restrictions. State v. Muccio , 890 N.W.2d 914, 920 (Minn. 2017) (explaining that
overbreadth challenges fail if a statute only proscribes unprotected speech); State v.
Crawley, 819 N.W.2d 94, 109 (Minn. 2012) (explaining that content-based restrictions on
unprotected speech are evaluated differently than similar restrictions on protected speech).
The State argues that this statute prohibits only unprotected speech for two reasons.
First, the State asks us to recognize a new category of unprotected speech: substantial
invasions of privacy. Casillas responds that the State has failed to present sufficient
evidence to support the creation of a new category of unprotected speech. We agree with
Casillas.
Although the First Amendment provides br oad free speech protection, the United
States Supreme Court has “permitted restric tions upon the content of speech in a few

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limited areas, which are ‘of such slight social va lue as a step to truth that any benefit that
may be derived from them is clearly outweig hed by the social interest in order and
morality.’ ” R.A.V., 505 U.S. at 382–83 (quoting Chaplinsky v. New Hampshire, 315 U.S.
568, 572 (1942)). These limited areas include obscenity, defamation, fraud, incitement,
and speech integral to criminal conduct. Stevens, 559 U.S. at 468. Additional areas of
unprotected speech include ch ild pornography, tr ue threats, and fighting words. United
States v. Alvarez, 567 U.S. 709, 717 (2012). All of the categories are “well-defined and
narrowly limited classes of speech.” Chaplinsky, 315 U.S. at 571; see also In re Welfare
of A.J.B., 929 N.W.2d at 846 (noting established exceptions).
The United States Supreme Court has em phatically rejected “freewheeling”
attempts “to declare new categories of speech outside the scope of the First Amendment.”
Stevens, 559 U.S. at 472; see also Jorgenson , 946 N.W.2d at 604 (“The United States
Supreme Court has been reluctant to expand these traditional categories of unprotected
speech.”). It is possible, however, there are “some categories of spee ch that have been
historically unprotected, but have not yet b een specifically identif ied or discussed.”
Stevens, 559 U.S. at 472.
To successfully argue for a new unprotected category of speech, the proponent must
present “persuasive evidence th at a novel restriction on content is part of a long (if
heretofore unrecognized) tradition of proscription.” Brown v. Ent. Merchs. Ass’n, 564 U.S.
786, 792 (2011). This is a heavy burden to bear, and the Supr eme Court has recently
rejected creating new categories of unpr otected speech for animal cruelty, Stevens,

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559 U.S. at 472, depicti ons of excessive violence, Brown, 564 U.S. at 791–93, and false
statements, Alvarez, 567 U.S. at 722–23.
In this case, we conclude that the State has failed to carry the heavy burden required
to provide a basis to establish a new cate gory of unprotected speech. Although we
recognize that developments in both law and society may merit a reevaluation of privacy
interests within the context of the First Am endment, there is not enough evidence or
established guidance to categor ically remove constitutional protection for speech that
constitutes a substantial invasion of privacy. See Brown, 564 U.S. at 790 (“And whatever
the challenges of applying the Constitution to ever-advancing technology, the basic
principles of freedom of speech and the pr ess, like the First Amendment’s command, do
not vary when a new and different medium for communication appears.” (citation omitted)
(internal quotation marks omitted)); see also State v. VanBuren , 214 A.3d 791, 807 (Vt.
2019) (explaining the decision of the Verm ont Supreme Court declining to recognize
invasions of privacy as unprotected speech); People v. Austin, 155 N.E.3d 439, 454–55 (Ill.
2019) (explaining a similar deci sion by Illinois Supreme Court), cert. denied, 141 S. Ct.
233 (2020). Moreover, the State’s proposed category is actually ba sed on the speech’s
transmission method and not its underlying content. Categories of unprotected speech are
determined by their content and not by their method of transmission. See Brown, 564 U.S.
at 790–91.
Second, the State argues that section 617.261 regulates only speech that falls within
historically recognized categories of unprotected speech. Before the district court, the State
argued that Minnesota Statutes § 617.261 prohibits only speech that is considered obscene.

10 
The district court agreed with the State, but the court of appeals rejected that argument.
The State has now shifted its argument and cont ends that the statute proscribes speech
within three historically reco gnized categories: obscenity, speech integral to criminal
conduct, and child pornography. Casillas counters the State’s argument by pointing to
numerous situations where the statute crimin alizes protected speech. We agree with
Casillas that the statute covers some protected speech.
The State undercuts its own argument by stating that much of the speech covered by
this statute is unprotected. For a statute to be exempted from the First Amendment, all of
the speech proscribed by the statute must be unprotected. See Muccio, 890 N.W.2d at 927
(explaining that an overbreadth analysis must continue when a statute “regulates some
speech that the First Amendment protects” (emphasis added)); see also Crawley ,
819 N.W.2d at 109–10 (procee ding with an unprotected speech analysis only after
construing a statute to solely proscribe defamation). Assuming the State intended to argue
that by criminalizing the nonconsensual dissemination of private sexual images the statute
exclusively prohibits unprotected speech, we still conclude that its argument falls short.
The State first argues that Minnesota Stat utes § 617.261 covers only unprotected
obscene speech. “[L]ewd and obscene [expressi ons] . . . are no essential part of any
exposition of ideas, and are of such slight soci al value as a step to truth that any benefit
that may be derived from them is clearly out weighed by the social interest in order and

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morality.” Chaplinsky, 315 U.S. at 572. Whether something qualifies as obscene involves
a three-part test:
(a) whether the average person, applying contemporary community standards
would find that the work, taken as a w hole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.

Miller, 413 U.S. at 24 (citations omitted) (internal quotation marks omitted).
4 However,
nudity “in and of itself is not obscene.” Koppinger v. City of Fairmont, 248 N.W.2d 708,
712 n.3 (Minn. 1976); see Knudtson v. City of Coates, 519 N.W.2d 166, 169 (Minn. 1994)
(acknowledging that “nudity is prevalent in advertising, movies and video”).
Like the court of appeals, we conclude that the district court erred when it
determined that the speech regulated by the statute falls only within the obscenity category
of unprotected speech. If an adult shares an image of another adult’s intimate parts without
the other adult’s consent, the image may not be “patently offensiv e” or “appeal to the
prurient interest.” See Muccio, 890 N.W.2d at 925 (explaining that for an image to be
obscene it must involve a “morbid, sh ameful interest in sex”) (quoting State v. Davidson,
481 N.W.2d 51, 59 (Minn. 1992)). “Sexual expression” can be “indecent but not obscene”
and therefore “protected by the First Amendment.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); see also Koppinger, 248 N.W.2d at 712 n.3. Similarly, if a man

4 The State argues that even if an image doe s not appeal to the prurient interest, the
nonconsensual nature of the dissemination makes the image obscene because it is offensive
and harmful to the victim. The court of appeals properly rejected this argument because it
is inconsistent with the Miller definition of obscenity. See Casillas, 938 N.W.2d at 83.

12 
shares a picture of his wife breast-feeding th eir baby against her wishes and part of her
nipple is exposed, this picture would not qualify as appealing “to the prurient interest,” but
may fall under the statute. There are dozens of other examples of non-obscene nude photos
that are criminalized by this statute. Cons equently, the district court erred when it
determined that the statute regulates only obscenity.
The next category suggested by the State is speech integr al to criminal conduct.
“Speech is integral to criminal conduct when it ‘is intended to induce or commence illegal
activities,’ such as ‘conspiracy, incitement, and solicitation.’ ” Muccio, 890 N.W.2d at 923
(quoting United States v. Williams, 553 U.S. 285, 298 (2008)). Speech in this category is
unprotected when it is “direc tly linked to and de signed to facilitate the commission of a
crime.” State v. Washington-Davis, 881 N.W.2d 531, 538 (Minn. 2016).
We conclude that almost none of the sp eech encompassed by this statute is speech
integral to criminal conduct. 5 Private sexual images are not generally used to “facilitate
the commission of a crime.” Id. They are not “[o]ffers to e ngage in illegal transactions”
nor are they “requests to obtain unlawful material.” Williams, 553 U.S. at 297–98.
Therefore, they do not categorically qualify as speech integral to criminal conduct.
The final category of unprotected speec h suggested by th e State is child
pornography. Pornography featuring real ch ildren falls outside the scope of the First
Amendment and can be banned. Ashcroft v. Free Speech Coal. , 535 U.S. 234, 249–50

5 We do not foreclose the possibility that there are so me instances when speech
criminalized by this statute will be speech integr al to criminal conduct. For example, an
advertisement for prostitution ma y involve the noncons ensual dissemination of a private
sexual image. These situations, however, are few compared to the statute’s overall reach.

13 
(2002). This category is specifically desi gned to protect children from sexual abuse or
sexual exploitation. Id. at 249. This argument is easily rejected because the majority of
private sexual images depict nude adults.
It is not difficult to imagine private sexua l images that would qualify as protected
speech but are criminalized by this statute. Envision a man and a woman who go on a date.
The man sends the woman a nude photo of himself after the date with instructions not to
share the picture. The woman still decides to share or disseminate it. The photo is not
obscene because it does not depict a “mor bid, shameful interest in sex.” Davidson,
481 N.W.2d at 59. The photo is not speech in tegral to criminal conduct because it is not
“directly linked to and de signed to facilitate the commission of a crime.”
Washington-Davis, 881 N.W.2d at 538. Finally, the p hoto does not depict children and
does not qualify as child pornography. Yet, the sharing of this photograph would still be
criminalized under the nonconsensual dissemi nation of private sexual images statute.
Ultimately, we reject the State’s argument th at the statute proscr ibes only unprotected
speech.
III.
Having determined that Minnesota Statut es § 617.261 covers some protected
speech, we turn to Casillas’s ar gument that the statute is a content-based restriction and
that does not surviv e strict scrutiny. 6 The State counters by arguing that the statute is a

6 Even if we accept Casillas’s argument, we note that content-based restrictions are
not prohibited per se and that “governmental regulation based on subject matter has been
approved in narrow circumstances.” Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n
of N.Y., 447 U.S. 530, 538 (1980); see also Burson v. Freeman, 504 U.S. 191, 211 (1992).

14 
content-neutral time, place, a nd manner restriction and theref ore it need only survive an
intermediate scrutiny analysis.
A content-based restriction is one “that target[s] speech based on its communicative
content.” Reed v. Town of Gilbert , 576 U.S. 155, 163 (2015). “[I]f a law applies to
particular speech because of the topic discussed or the idea or message expressed,” it is a
content-based regulation. Id. Some of these restrictions are content-based on their face,
but “others are more subtle, defining regula ted speech by its f unction or purpose.” Id.
Either way, content-based restrictions “a re presumptively uncon stitutional and may be
justified only if the government proves that they are narrowly tailored to serve compelling
state interests.” Id.; see also Boos v. Barry , 485 U.S. 312, 334 (1988). Under a strict
scrutiny analysis, narrow tailoring means that the statute must be “the least restrictive
means for addressing” the government’s interest. United States v. Playboy Ent. Grp., Inc.,
529 U.S. 803, 827 (2000). A statute, however, does not need to be “perfectly tailored” to
survive strict scrutiny. Williams-Yulee v. Fla. Bar , 575 U.S. 433, 454 (2015) (quoting
Burson v. Freeman, 504 U.S. 191, 209 (1992)).
A content-neutral restriction is one that “is . . . neutral on its face.” Reed, 576 U.S.
at 165. In other words, these types of restri ctions “are justified without reference to the
content of the regulated speech.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,
293 (1984). Content-neutral restrictions are constitutional if “they are narrowly tailored to
serve a significant governmental interest, a nd . . . they leave open ample alternative
channels for communication of the information.” Id. Under an intermediate scrutiny
analysis, narrow tailoring means that the restri ction is “not substantially broader than

15 
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.” Ward v. Rock Against Racism, 491 U.S. 781,
800 (1989).
In this case, we need not determine wh ether Minnesota Statutes § 617.261 is
content-based or content-neutral because we find that the State has met its burden under
the more searching strict scrutiny analysis.
Our strict scrutiny analysis begins by ev aluating the strength of the governmental
interest in prohibiting the non consensual dissemination of private sexual images. To
satisfy strict scrutiny, the State must show that it has a compelling interest in passing the
statute. Brown, 564 U.S. at 799. This means “[t]he State must specifi cally identify an
‘actual problem’ in need of solving.” Id. (quoting Playboy Ent. Grp., 529 U.S. at 822–23).
The problem being solved “must be paramount” and “of vital importance.” Elrod v. Burns, 427 U.S. 347, 362 (1976). In this case, we conclude that the State has identified an “actual
problem” of paramount importance in the no nconsensual dissemination of private sexual
images and is working within its well-recognized authority to safeguard its citizens’ health
and safety through Minnesota Statutes § 617.261. See Hill v. Colorado, 530 U.S. 703, 715
(2000) (“It is a traditional exercise of the St ates’ police powers to protect the health and
safety of their citizens.” (citation omitte d) (internal quotation marks omitted)); see also
Minn. Const. art. I, § 1 (explaining that Mi nnesota’s “[g]overnment is instituted for the
security, benefit and protection of the people”).

16 
The nonconsensual dissemina tion of private sexual images generally “involves
images originally obta ined without consent, such as by use of hidden cameras or victim
coercion, and images originally obtained with consent, usually within the context of a
private or confidential relationship. Once obtained, these images are subsequently
distributed without consent.” Austin, 155 N.E.3d at 451. This dissemination is commonly
referred to as “revenge porn.”7 While “[o]ne’s naked body is a very private part of one’s
person and generally known to others only by choice,” the nonconsensual dissemination of
private sexual images removes this choice fro m a victim and exposes the victim’s most
intimate moments to others ag ainst the victim’s will. Lake v. Wal-Mart Stores , Inc.,
582 N.W.2d 231, 235 (Minn. 1998) (emphasis added).
Those who are unwillingly exposed to thei r friends, family, bosses, co-workers,
teachers, fellow students, or random strangers on the inte rnet are often deeply and
permanently scarred by the experience. Victims suffer from post-traumatic stress disorder,
anxiety, depression, despair, loneliness, alc oholism, drug abuse, and significant losses in
self-esteem, confidence, and trust. Samantha Bates, Revenge Porn and Mental Health: A
Qualitative Analysis of the Mental Health Effects of Revenge Po rn on Female Survivors ,
12 Feminist Criminology 9 (2016). Survivors often re quire therapy and medical

7 The phrase “revenge porn” is mislead ing. The nonconsensual dissemination of
private sexual images statute does not require personal vengeance as a motive. See Minn.
Stat. § 617.261. Nor does the statute require that an image qualify as pornographic to be
prohibited. Id.; see also Austin , 155 N.E.3d at 451 (noting the term “revenge porn” is
misleading because “revenge” suggests vengeance, but “perpetrators may be motivated by
a desire for profit, notoriety, entertainment, or for no specific reason at all,” and “porn” is
misleading in suggesting “that visual depictions of nudity or sexual activity are inherently
pornographic”).

17 
intervention. Id. The effects of revenge porn ar e so profound that victims have
psychological profiles that match sexual assault survivors. Id. at 3. Tragically, not every
victim survives this experience and some commit suicide as a result of their exposure
online. Sophia Ankel, Many Revenge Porn Victims Consider Suicide—Why Aren’t Schools
Doing More to Stop It? , The Guardian (May 7, 2 018, 12:05 PM), https://www.
theguardian.com/lifeandstyle/2018/may/07/many-revenge-porn-victims-consider-suicide-
why-arent-schools-doing-more-to-stop-it [opinion attachment].
Those who survive this harrowing expe rience without significant health
consequences still may have their reputations permanently tarnished. Many victims have
a scarlet letter affixed to their resumes when applying for jobs or additional educational
opportunities. VanBuren, 214 A.3d at 810–11. When a simple internet search for a
victim’s name displays multiple nude imag es, employers frequently put the victim’s
application aside. Id. Employers have fired employees who have been victimized by their
former partners. Id. Losing employment is a difficult issue for any person, but is especially
problematic when victims need employment-spons ored health benefits to deal with the
trauma of being exposed online. Chartbook Section 2: Trends and Variation in Health
Insurance Coverage , Minn. Dep’t of Health, https ://www.health.state.mn.us/data/
economics/chartbook/docs/section2.pdf (estimating that 58 percent of Minnesotans obtain
their health insurance from their employer).
“[I]t is difficult to imagine something more private than images depicting an
individual engaging in sexual conduct, or of a person’s genitals, anus, or pubic area.”
VanBuren, 214 A.3d at 810. Even if a victim is fort unate enough to avoid the serious

18 
mental, emotional, economic, and physical effects, the person will still suffer from
humiliation and embarrassment. The harm largely speaks for itself.
Making matters worse, this problem is widespread and continuously expanding. In
2017, a U.S. survey conducted by the Cyber Civil Rights Initiative found that one in eight
survey participants had been the victim of or threatened with nonconsensual dissemination
of private sexual images. Brief of Amici Cu riae Cyber Civil Rights Initiative et al. at 7,
State v. Casillas , No. A19-0576 (filed Apr. 23, 2020). Thousands of websites feature
revenge porn, and social media platforms, such as Twitter, Faceb ook, Instagram, and
Snapchat, allow for explicit c ontent to spread rapidly. Id. (estimating the number of
revenge porn websites at nearly 10,000).
Based on this broad and direct threat to its citizens’ health and safety, we find that
the State has carried its burden of showi ng a compelling governmental interest in
criminalizing the nonconsensual disse mination of private sexual images. See Melchert-
Dinkel, 844 N.W.2d at 23 (finding the State has a compelling interest in protecting its
citizens from suicide); Sawh v. City of Lino Lakes , 823 N.W.2d 627, 635 (Minn. 2012)
(“There is no question that th e [government] has a compelli ng interest in ensuring the
health and safety of its citizens.”); Bendorf v. Comm’r of Pub. Safety , 727 N.W.2d 410,
417 (Minn. 2007) (finding the State has a compelling interest in protecting its citizens from
drunk driving); In re Linehan , 594 N.W.2d 867, 872 (Min n. 1999) (“States have a
compelling interest in . . . protecting the public from sexual violence.”).

19 
Next, we analyze whether Minnesota Statutes § 617.261 is “narrowly tailored” and
“the least restrictive means” to solve the underlying problem. We conclude that the State
has carried this burden.
First, the Legislature explicitly defined the type of image that is criminalized. The
image must be “of another person who is depi cted in a sexual act or whose intimate parts
are exposed.” Minn. Stat. § 617.261, subd. 1. The terms “sexual act,” “intimate parts,”
and “image” are all expressly defined. Id., subd. 7(d)–(e), (g). Moreover, the person
depicted in the image must be identifiable “from the image itself . . . or . . . from personal
information displayed in connection with the image.” Id., subd. 1(1)(i)–(ii). Furthermore,
the image has to be “obtained or created unde r circumstances in which the actor knew or
reasonably should have known the person depicted had a reasonable expectation of
privacy.” Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the
scope of the statute.
Second, a defendant must “intentionally” disseminate the image. Minn. Stat.
§ 617.261, subd. 1. This mens rea requireme nt means that a defendant must knowingly
and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless
distributions are not proscribed. This specific intent requirement further narrows the statute
and keeps it from “target[ing] broad categories of speech.” Muccio, 890 N.W.2d at 928.
Third, the statute has seven enumerated exemptions. Minn. Stat. § 617.261,
subd. 5(1)–(7). Some protected speech is taken outside of the scope of the statute by
subdivision 5. For example, the statute exempts prosecution for image dissemination
pursuant to essential law enforcement func tions performed by bot h citizens and public

20 
safety personnel. Id., subd. 5(1)–(2). The statute allows fo r private sexual images to be
distributed “in the course of seeking or receiving medical or mental health treatment.” Id.,
subd. 5(3). Advertisers, booksellers, and artists are protected because images “obtained in
a commercial setting” for legal purposes fall outside the statute’s reach. Id., subd. 5(4).
Journalists cannot be prosecut ed because there are exempti ons for the dissemination of
private sexual images that involve matters of public interest and “ex posure[s] in public.”
Id., subd. 5(4)–(5).8 Educators and scientists are prot ected because there is an exemption
for private sexual images disseminated for “leg itimate scientific rese arch or educational
purposes.” Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of
subdivision one and a disseminator acted with the requisite mens rea, that person may still
be exempt from prosecution under these precise exceptions.
Fourth, to be prosecuted under the statute, a disseminator must act without consent.
Id., subd. 1(2). This provision provides add itional protection for commercial
advertisements, certain adult films, artistic works, and other creative expression outside the
statute’s scope.9

8 Casillas argues that a photojournalist who posts nude images of battle scenes or
natural disasters could be pr osecuted under Minnesota Stat utes § 617.261. But this
contention ignores the language of the statute. Wars and natural disasters are plainly
matters of public interest and sharing inform ation about these events is a “lawful public
purpose.” Minn. Stat. § 617.261, subd. 5(5).

9 In our view, it is not difficult to obtain consent before disseminating a private sexual
image. Simply ask permission. We cannot imagine an emergency situation that requires
the immediate dissemination of a private sexual image.

21 
Finally, this statute only encompasses pr ivate speech. “[R]estricting speech on
purely private matters does not implicate th e same constitutional concerns as limiting
speech on matters of public interest.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). “Speech
on matters of purely private concern is of le ss First Amendment concern” than speech on
public matters that go to the h eart of our democratic system. Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985). Unlik e the overly broad statutes at
issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers
only private sexual images and do es not prohibit speech that is “at the core of protected
First Amendment speech.” 929 N.W.2d at 853; see 946 N.W.2d at 605.
Because the statute proscribes only priv ate speech that (1) is intentionally
disseminated without consent, (2) falls within numerous statutory de finitions, and (3) is
outside of the seven broad exemptions, we find the statute to be narrowly tailored.10

10 Casillas argues that rather than crim inalizing the nonconsensual dissemination of
private sexual images, a narrower approach woul d be for the Legislature to provide civil
remedies only. However, the permissible constitutional scope of civil remedies and
criminal remedies is the same. “What a State may not constitutionally bring about by
means of a criminal statute is likewise beyond the reach of its civil law . . . .” N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 277 (1964). In fact, criminal charges may be the preferable
method for proscribing this type of behavior because “people charged criminally enjoy
greater procedural safeguards than those facing civil suit, and the prospect of steep civil
damages can chill speech even more than that of criminal prosecution.” VanBuren,
214 A.3d at 814. We are additionally concerned that a victim’s identity may become
publicized by a civil suit, th us leading to greater harm. See Austin, 155 N.E.3d at 463
(citing Erica Souza, “For His Eyes Only”: Why Federal Legislation is Needed to Combat
Revenge Porn, 23 UCLA Women’s L.J. 101, 111–15 (2016); Danielle Keats Citron &
Mary Anne Franks, Criminalizing Revenge Porn , 49 Wake Forest L. Rev. 345, 357–59
(2014)).

22 
The Legislature’s decision to enact the nonconsensual dissemination statute “was
caused by something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.” Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 509 (1969). Instead, the statute was enacted to prevent the permanent
and severe harms caused by the nonconsensual dissemination of private sexual images.
While we acknowledge and “reaffi rm that it is . . . rare” for a content-based restriction to
survive strict scrutiny, this restriction is one of those rare cases. Burson, 504 U.S. at 211
(upholding a content-based Tennessee la w under a strict scrutiny analysis); see also
Williams-Yulee, 575 U.S. at 457 (upholding a Florid a speech restriction under a strict
scrutiny analysis). In sum, ev en if we assume that the statute creates a content-based
restriction, the State has satisfied its burden of showing that the restriction does not violate
the First Amendment because the restrictio n is justified by a compelling government
interest and is narrowly tailored to serve that interest.11
IV.
Next, Casillas argues that Minnesota St atutes § 617.261 is unconstitutionally
overbroad because it burdens a substantial amount of protected speech. The State counters
by arguing that the amount of criminalized protected speech is minimal when compared to

11 We further note that Minnesota Stat utes § 617.261 is not “exceptional.” McCullen
v. Coakley , 573 U.S. 464, 490 (2014) (noting th at a Massachusetts statute “raise[d]
concerns” over its tailoring because it was the only statute of its kind). As amici note, 46
other state legislatures have passed simi lar statutes prohibiting the nonconsensual
dissemination of private sexual images. Brief of Amici Curiae Cyber Civil Rights Initiative
et al. at 4, State v. Casillas, No. A19-0576 (filed Apr. 23, 2020).

23 
the statute’s legitimate sweep. The court of appeals agreed with Casillas and rested its
entire opinion on a finding of overbreadth. Casillas, 938 N.W.2d at 88–90.
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 scru tiny and the United States Supr eme Court has affirmed on
overbreadth grounds. Compare Stevens, 559 U.S. at 467, 482 (upholding the lower court’s
strict scrutiny analysis usi ng the overbreadth doctrine) with United States v. Stevens ,
533 F.3d 218, 232–35 (3d Ci r. 2008) (deciding the constitu tionality 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 an alytical approaches leads to understandable
overlap in the relevant legal principles. See Austin , 155 N.E.3d at 467 (“Under
intermediate scrutiny, a content-neutral st atute 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 adequate ly explained by the Supreme Court.” Rohr,
supra, at 109.

24 
Our most recent First Amendment cases have not given us the opportunity to clarify
the relationship between the two doctrines. See Jorgenson, 946 N.W.2d at 600 (presenting
only an overbreadth challenge to Minnesota’s criminal coercion statute); In re Welfare of
A.J.B., 929 N.W.2d at 844 (presenting only an overbreadth challenge to Minnesota’s mail-
harassment and stalking-by-mail statutes); Hensel, 901 N.W.2d at 170 (presenting only an
overbreadth challenge to Minnesota’s dist urbance-of-a-meeting-or-assembly statute);
Muccio, 890 N.W.2d at 929 (presenting only an overbreadth challenge to Minnesota’s
statute prohibiting sexually explic it communications with children); Washington-Davis,
881 N.W.2d at 534 (presenting only an overb readth challenge to Minnesota’s statute
prohibiting solicitation and promotion of prostitution).
In Melchert-Dinkel, however, the challenge to a statute that criminalized “assisting,
advising, or encouraging” suicide raised both a scrutiny and overbreadth argument.
844 N.W.2d at 18. The court of appeals ruled that the statute was constitutionally
permissible because it was not substantially overbroad. State v. Melchert-Dinkel ,
816 N.W.2d 703, 715–17 (Minn. App. 2012). Upon appeal, we partially severed the statute
and then upheld the reformulated statute under a scrutiny analysis without discussing
overbreadth. Melchert-Dinkel, 844 N.W.2d at 24.
Melchert-Dinkel is instructive in helping us reso lve this case. Wh en a statute is
challenged on both scrutiny and overbreadth grounds, a scrutiny analysis should be
conducted first. This approach is best because a statute that survives a scrutiny analysis
will necessarily survive the overbreadth challenge.

25 
“An overbreadth challenge is a facial a ttack on a statute in which the challenger
must establish that ‘a substantial number of [a statute’s] applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.’ ” Hensel, 901 N.W.2d at 170
(alteration in original) (quoting Stevens, 559 U.S. at 473). If a st atute survives a scrutiny
analysis, the court has already determined that all of the statute’s applications are
constitutional. Neither Casillas nor his suppo rting amici identify a case where a statute
survived strict scrutiny but was struck down as unconstituti onally overbroad. We have
great difficulty imagining such a scenario. Therefore, we c onclude that an overbreadth
analysis is needlessly redundant if a statute has already survived strict scrutiny review.
This analytical fr amework is further supported by the United States Supreme
Court’s decision in Burson v. Freeman . In Burson, the Court was faced with a First
Amendment challenge to a Tenne ssee statute that prohibited political speech within 100
feet of a polling place. 504 U. S. at 193–94. The Suprem e Court upheld the statute
exclusively on strict scrutiny grounds without discussing overbreadth. Id. at 196–211. As
previously mentioned, a successful overbread th challenge requires that a “substantial
amount” of protected speech is criminalized under a given statute. In re Welfare of A.J.B.,
929 N.W.2d at 847. There is no doubt that the Tennessee statute in Burson criminalized a
substantial amount of protected speech, but it was upheld because it was narrowly tailored
and served a compelling governmental interest. See Burson , 504 U.S. at 211. While
neither party raised the issue in that case, an overbreadth challenge would have been
fruitless because the restriction on protecte d speech was already determined to be
constitutional.
26 
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. Ev en 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 priv ate sexual images, however, presents a
grave threat to everyday Minnesotans whose liv es 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 Statut es § 617.261 is a representa tion of this constitutional
compromise and adequately balances the fundamental right to free speech with the citizens’
right to health and safety.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand to the court of appeals for consideration and decision of the remaining issues raised
in this appeal.
Reversed and remanded.
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