Free speech advocates are striking out in their legal challenges to revenge porn laws.
The Minnesota Supreme Court on Wednesday unanimously upheld a law that bars displaying intimate images or video of another person, either nude or engaged in sexual acts, without the subject’s consent.
A lower court had thrown out the state’s non-consensual porn law, saying the statute banned constitutionally protected — if unsavory — content.
Free speech advocates don’t defend Michael Casillas, who had tapped into his ex-girlfriend’s Dish Network account to access intimate photos with her and another man that he then posted to the internet.
But Raleigh Levine, a professor at the Mitchell Hamline School of Law in Minnesota, said the state’s law doesn’t require malicious intent as cause for penalty, leaving vulnerable persons who might share, say, breastfeeding pictures online.
“True revenge porn is hurtful in some of the worst possible ways,” Ms. Levine said. “The problem is this law sweeps in way too much speech that doesn’t pose those problems.”
Legal experts denote revenge porn as nude or sexual images taken with consent during intimate relationships that later are posted by a partner — often post-breakup — to harass or intimidate.
Over the last decade, 46 states and the District of Columbia have enacted legislation criminalizing revenge porn. Some legal experts, however, question the constitutionality of these laws, which they say strike at the heart of the First Amendment.
Courts have rejected that argument. Defendants in appellate courts in Wisconsin and Vermont came up short in challenging non-consensual dissemination of private sexual images laws.
In October, the U.S. Supreme Court denied a petition filed by attorneys representing Bethany Austin, an Illinois woman who had posted nude photos of her ex-fiancé’s mistress in an attempt to clear her own name after her fiancé had spread falsehoods about the cause of the dissolution of their relationship.
Attorneys for Ms. Austin argued that Ms. Austin “would have been subject to the law even if she had only shared the images documenting her fiancé’s betrayal when seeking help from her mother, a therapist, or clergy.”
Legal experts say one hurdle to such free speech defenses is that courts have allowed the government to block certain speech, such as child pornography and obscenity. Such prohibitions must survive a strict scrutiny test, which Minnesota’s high court said the 2016 legislation does.
In Wednesday’s ruling, Justice Natalie Hudson acknowledged that the First Amendment is an “umbrella” that provides refuge to “the most unpopular ideas and expressions.”
But Justice Hudson added: “The nonconsensual dissemination of private sexual images, however, presents a grave threat to everyday Minnesotans whose lives are affected by the single click of a button.”
The Cyber Civil Rights Initiative, a nonprofit that helps victims of cyberbullying and cyber harassment, says the effects of sexually graphic images shared on the internet can range from mental health anguish to job loss.
• Christopher Vondracek can be reached at email@example.com.
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