STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0576
State of Minnesota,
Respondent,
vs.
Michael Anthony Casillas,
Appellant.
Filed December 23, 2019
Reversed
Larkin, Judge
Dakota County District Court
File No. 19HA-CR-17-4702

Keith Ellison, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)
John Arechigo, Arechigo & Stokka, P.A., St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Slieter,
Judge.
SYLLABUS
Minn. Stat. § 617.261 (2016) is facially overbroad in violation of the First
Amendment to the United States Constitution, and the constitutional infirmity cannot be
remedied through a narrowing construction or severance.

 OPINION
LARKIN, Judge
Appellant challenges his conviction of felony nonconsensual dissemination of
private sexual images under Minn. Stat. § 617.261, arguing that the statute is
constitutionally overbroad and therefore facially invalid under the First Amendment to the
United States Constitution. We conclude that Minn. Stat. § 617.261 is facially overbroad
in violation of the First Amendment as a result of its lack of an intent-to-harm requirement
and its use of a negligence mens rea.

Because it is not possible to remedy those

constitutional defects through application of a narrowing construction or by severing
problematic language from the statute, we invalidate the statute and reverse appellant’s
conviction and sentence.
FACTS
In 2017, respondent State of Minnesota charged appellant Michael Anthony Casillas
with felony nonconsensual dissemination of private sexual images under Minn. Stat.
§ 617.261, after A.K.M. reported that Casillas had obtained and disseminated, without her
consent, private sexual images of her. The complaint alleged that Casillas obtained
A.K.M.’s account log-in information for her wireless and television provider accounts
while they were in a relationship and that after their relationship ended, Casillas accessed
those accounts and obtained photos and videos containing sexual images of A.K.M.
Casillas told A.K.M. that he planned to release the photos and videos. A.K.M. objected.
She later received a screenshot of one of the videos that had been sent to 44 recipients and
posted online. The video showed A.K.M. engaging in a sexual act with another individual.
2

 Casillas moved to dismiss the charge, arguing that Minn. Stat. § 617.261 is
unconstitutionally overbroad and vague in violation of the First Amendment. The district
court rejected Casillas’s First Amendment challenge, reasoning in part that Minn. Stat.
§ 617.261 regulates obscenity, which is not protected by the First Amendment.
The parties agreed to proceed under Minn. R. Crim. P. 26.01, subd. 4, which allows
a defendant to stipulate to the state’s case to obtain review of a district court’s dispositive
pretrial ruling. Based on the stipulated record, the district court concluded that Casillas
was guilty of felony nonconsensual dissemination of private sexual images as charged
because he intentionally disseminated an identifiable image of A.K.M. depicted in a sexual
act.
The district court reasoned that Casillas “texted A.K.M. and seemingly threatened
her about posting the image online, which demonstrates that he knew this wasn’t an act
based on her consent,” and that Casillas “certainly knew that A.K.M. was not consenting
to him disseminating the image.” The district court also determined that the state had
proved that “the image was obtained under circumstances in which [Casillas] knew or
reasonably should have known [that A.K.M.] had a reasonable expectation of privacy.”
The district court reasoned that “an expectation of privacy regarding the image is implicitly
inherent from the nature of the act depicted,” that Casillas’s threat to post the image online
demonstrated “that he understood it was an image that should remain private,” and that
“A.K.M.’s response about prosecuting such conduct further demonstrates that he
reasonably should have known that A.K.M. had a reasonable expectation of privacy.”

3

 The district court entered judgment of conviction, denied Casillas’s motion for a
downward dispositional sentencing departure, and ordered him to serve a presumptive 23month prison term under Minnesota’s sentencing guidelines. Casillas appeals.
ISSUE
Did the district court err by rejecting Casillas’s First Amendment challenge to Minn.
Stat. § 617.261?

ANALYSIS
In this case, we are asked to decide whether Minn. Stat. § 617.261 is overbroad and
therefore facially invalid under the First Amendment to the United States Constitution.1
An appellate court reviews the constitutionality of a statute de novo. Rew v. Bergstrom,
845 N.W.2d 764, 776 (Minn. 2014). “Ordinarily, laws are afforded a presumption of
constitutionality, but statutes allegedly restricting First Amendment rights are not so
presumed.” Dunham v. Roer, 708 N.W.2d 552, 562 (Minn. App. 2006), review denied
(Minn. Mar. 28, 2006).
The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech.”2 U.S. Const. amend. I. It applies to the states through the Fourteenth
Amendment. In re Welfare of A.J.B., 929 N.W.2d 840, 846 (Minn. 2019). The First

1

Casillas also argues that the statute is unconstitutionally vague and challenges his
sentence. Because our review of Casillas’s overbreadth argument is dispositive, we do not
reach those issues.
2
The Minnesota Constitution similarly protects the rights of all persons to “freely speak,
write and publish their sentiments on all subjects, being responsible for the abuse of such
right.” Minn. Const. art. I, § 3. Although Casillas cites the Minnesota Constitution, he
argues for relief under the United States Constitution.
4

 Amendment establishes that the government generally may not restrict expression because
of its messages, ideas, subject matter, or content. Id. The First Amendment’s protections
extend beyond expressions regarding matters of public concern, and “First Amendment
principles apply with equal force to speech or expressive conduct on the Internet.” Id.
“The [Supreme] Court has applied similarly conceived First Amendment standards to
moving pictures, to photographs, and to words in books.” Kaplan v. California, 413 U.S.
115, 119, 93 S. Ct. 2680, 2684 (1973). The state concedes, and we agree, that Minn. Stat.
§ 617.261 restricts expressive conduct.
Casillas contends that Minn. Stat. § 617.261 is unconstitutionally overbroad on its
face. To succeed in a typical facial constitutional challenge, a challenger must establish
that no set of circumstances exists under which the challenged statute would be valid or
that the statute lacks any plainly legitimate sweep. United States v. Stevens, 559 U.S. 460,
472, 130 S. Ct. 1577, 1587 (2010). But in the First Amendment context, the Supreme
Court has recognized a second type of facial challenge, whereby a law may be invalidated
as overbroad if “a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Id. at 473, 130 S. Ct. at 1587 (quotation
omitted).
Thus, a long-recognized exception to the ordinary rules of standing applies to facial
overbreadth challenges. State v. Mireles, 619 N.W.2d 558, 561 (Minn. App. 2000) (citing
Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct. 2908, 2916 (1973)), review denied
(Minn. Feb. 13, 2001). Under this exception, litigants may challenge a statute, “not
because their own rights of free expression are violated, but because ‘the statute’s very
5

 existence may cause others not before the court to refrain from constitutionally protected
speech or expression.’” Id. (quoting Broadrick, 413 U.S. at 611-12, 93 S. Ct. at 2916).
“The rationale for allowing an overbreadth challenge, even when a statute is constitutional
as applied in a particular circumstance, is that 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) (quotation omitted).
The Minnesota Supreme Court recently summarized the analysis applicable to a
First Amendment overbreadth challenge as follows:
We may reverse a conviction for violating the First
Amendment if we determine that the statute is
unconstitutionally overbroad on its face. A statute may be
facially overbroad in violation of the First Amendment when it
prohibits constitutionally protected activity, in addition to
activity that may be prohibited without offending
constitutional rights. Because of the fear of a chilling effect on
speech, the traditional rules of standing have been altered in
the First Amendment context to allow litigants to challenge
statutes as unconstitutionally overbroad even when their own
conduct could, consistent with constitutional requirements, be
punished under a narrowly drawn statute.
A.J.B., 929 N.W.2d at 847 (citations and quotations omitted).
In sum, Casillas may bring a facial overbreadth challenge to Minn. Stat. § 617.261
even if his dissemination of A.K.M.’s image is not protected by the First Amendment. As
to the applicable analysis:
The first step in an overbreadth challenge is to construe
the challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the statute
covers. Once we understand the scope and sweep of the
statute, we ask whether its reach is limited to unprotected
categories of speech or expressive conduct.
6

 Id. (citations and quotations omitted). If the statute is not limited to unprotected categories
of speech or expressive conduct,
we turn to the core overbreadth inquiry: Does the statute
prohibit a substantial amount of constitutionally protected
speech? This inquiry looks to the conduct that is criminalized
by the statute—some of which is unprotected speech or
conduct and some of which is speech and expressive conduct
protected by the First Amendment—and asks whether the
protected speech and expressive conduct make up a substantial
proportion of the behavior the statute prohibits compared with
conduct and speech that are unprotected and may be
legitimately criminalized. A statute is not substantially
overbroad merely because one can conceive of some
impermissible applications.
Id. at 847-48 (citations and quotations omitted).
If the statute prohibits a substantial amount of protected expressive conduct, we
consider whether applying a narrowing construction or severing problematic language
from the statute would remedy the constitutional defect. Id. at 848. If the statute is
substantially overbroad and cannot be saved by a narrowing construction or severance, “the
remaining option is to invalidate the statute.” Id. (quotation omitted). “Because the
overbreadth doctrine has the potential to void an entire statute, it should be applied only as
a last resort and only if the degree of overbreadth is substantial and the statute is not subject
to a limiting construction.” Dunham, 708 N.W.2d at 565 (quotation omitted).
With these principles in mind, we turn to the language of Minn. Stat. § 617.261.
1.

Minn. Stat. § 617.261 has a broad sweep.

Minn. Stat. § 617.261 provides:

7

 It is 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:
(i) from the image itself, by the person depicted
in the image or by another person; or
(ii) from personal information displayed in
connection 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
(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 (emphasis added).
“‘Dissemination’ means distribution to one or more persons, other than the person
depicted in the image, or publication by any publicly available medium.” Id., subd. 7(b).
“‘Image’ means a photograph, film, video recording, or digital photograph or recording.”
Id., subd. 7(d). “‘Intimate parts’ means the genitals, pubic area, or anus of an individual,
or if the individual is female, a partially or fully exposed nipple.” Id., subd. 7(e).
As to penalties, the statute provides that normally, whoever violates Minn. Stat.
§ 617.261, subd. 1, is guilty of a gross misdemeanor. Id., subd. 2(a). However, a person
who violates subdivision 1 is guilty of a felony and may be sentenced to imprisonment for
up to three years if one of the following factors is present:
(1) the person depicted in the image suffers financial
loss due to the dissemination of the image;
(2) the actor disseminates the image with intent to profit
from the dissemination;
(3) the actor maintains an Internet Web site, online
service, online application, or mobile application for the
purpose of disseminating the image;
8

 (4) the actor posts the image on a Web site;
(5) the actor disseminates the image with intent to
harass the person depicted in the image;
(6) the actor obtained the image by committing a
violation of section 609.52, 609.746, 609.89, or 609.891; or
(7) the actor has previously been convicted under this
chapter.
Id., subd. 2(b) (emphasis added). “‘Harass’ means an act that would cause a substantial
adverse effect on the safety, security, or privacy of a reasonable person.” Id., subd. 7(c).
Minn. Stat. § 617.261 is not violated if
(1) the dissemination is made for the purpose of a
criminal investigation or prosecution that is otherwise lawful;
(2) the dissemination is for the purpose of, or in
connection with, the reporting of unlawful conduct;
(3) the dissemination is made in the course of seeking
or receiving medical or mental health treatment and the image
is protected from further dissemination;
(4) the image involves exposure in public or was
obtained in a commercial setting for the purpose of the legal
sale of goods or services, including the creation of artistic
products for sale or display;
(5) the image relates to a matter of public interest and
dissemination serves a lawful public purpose;
(6) the dissemination is for legitimate scientific research
or educational purposes; or
(7) the dissemination is made for legal proceedings and
is consistent with common practice in civil proceedings
necessary for the proper functioning of the criminal justice
system, or protected by court order which prohibits any further
dissemination.
Id., subd. 5.
In sum, Minn. Stat. § 617.261 applies to a single intentional dissemination of an
image of “another person who is depicted in a sexual act or whose intimate parts are
exposed” if certain requirements are met. Id., subd. 1. Those requirements are based in

9

 part on a broad mens rea requirement: the disseminator “knows or reasonably should know
that the person depicted in the image does not consent to the dissemination” and “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.” Id. That “knows
or reasonably should know” standard is a negligence mens rea that allows a person to be
convicted under Minn. Stat. § 617.261 even if he did not actually know that the person
depicted in the image did not consent to the dissemination or that the image was obtained
or created under circumstances in which the person depicted had a reasonable expectation
of privacy. See A.J.B., 929 N.W.2d at 850 (describing a “knows or has reason to know”
standard as a broad negligence mens rea).
Moreover, Minn. Stat. § 617.261 does not require proof that the disseminator caused
or intended a specified harm. Instead, the statute enhances a criminal dissemination to a
felony offense if “the person depicted in the image suffers financial loss due to the
dissemination of the image” or “the actor disseminates the image with intent to harass the
person depicted in the image.” Minn. Stat. § 617.261, subd. 2(b)(1), (5). Thus, the statute’s
harm-causing and intent-to-harm elements do not limit the expressive conduct proscribed
by the statute; they merely determine the level of criminality assigned to expressive
conduct within the statute’s reach.
In sum, Minn. Stat. § 617.261 covers a wide range of expressive conduct. It covers
the dissemination of a sexual image with knowledge that the person depicted in the image
did not consent to the dissemination and that the image was obtained or created under
circumstances in which the person depicted had a reasonable expectation of privacy. But
10

 it also covers the dissemination of a sexual image even if the disseminator did not know
that the subject of the image did not consent to the dissemination, did not know that the
image was obtained or created under circumstances indicating that the person depicted had
a reasonable expectation of privacy, and did not cause or intend to cause a specified harm.
Given the statute’s application to the latter set of circumstances, its sweep is broad.
2.

Minn. Stat. § 617.261’s sweep is not limited to expressive conduct that is
categorically excluded from First Amendment protection.

We next address the state’s argument that Minn. Stat. § 617.261 does not implicate
the First Amendment because it regulates only unprotected expressive conduct. “[T]he
Supreme Court has long permitted some content-based restrictions in a few limited areas,
in which speech is of such slight social value as a step to truth that any benefit that may be
derived from it is clearly outweighed by the social interest in order and morality.” State v.
Melchert-Dinkel, 844 N.W.2d 13, 19 (Minn. 2014) (quotation omitted). Exceptions to First
Amendment protections fall into several delineated categories that include 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. A.J.B., 929 N.W.2d at 846 (citing United States v. Alvarez, 567 U.S.
709, 717, 132 S. Ct. 2537, 2544 (2012)).
Obscene material is unprotected by the First Amendment. Miller v. California, 413
U.S. 15, 23-24, 93 S. Ct. 2607, 2614-15 (1973). But “[s]tate statutes designed to regulate
obscene materials must be carefully limited,” and the Supreme Court has confined the

11

 permissible reach of such regulation to works that depict or describe sexual conduct. Id.
Such a regulation must “be limited to works which, taken as a whole, 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.” Id. at 24, 93
S. Ct. at 2615.
Based on that definition of obscenity, the state contends that Minn. Stat. § 617.261
regulates only obscenity. The state argues that “[t]he average person would find that
[Minn. Stat. § 617.261] regulates content that appeals to the prurient interest.” The state
notes that a prurient interest in sex has been defined as a morbid, shameful interest in sex,
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504-05, 105 S. Ct. 2794, 2802 (1985),
and asserts that “people who disseminate nonconsensual, private sexual images evince”
such an interest in sex. The state further argues that Minn. Stat. § 617.261 “regulates
content that depicts, in a patently offensive way, specifically defined sexual conduct,”
asserting that “[w]hat makes the proscribed images patently offensive is, again, their
nonconsensual nature.” Specifically, the state argues that “[i]mages depicting someone’s
nudity or sexuality taken in private but shared publicly without consent are patently
offensive.” Lastly, the state argues that the images proscribed by Minn. Stat. § 617.261
lack serious literary, artistic, political, and scientific value.
The state’s obscenity argument is not aligned with the definition of obscenity. The
definition requires, in part, that an allegedly obscene work “portray sexual conduct in a
patently offensive way.” Miller, 413 U.S. at 24, 93 S. Ct. at 2615. That is, the definition
asks whether the content of the image is patently offensive. See The American Heritage
12

 Dictionary of the English Language 1374 (5th ed. 2018) (defining “portray” as “[t]o depict
or represent pictorially; make a picture of” and “[t]o describe or depict in a certain way”).
But the state’s argument is not based on the image’s content. Instead, the state focuses on
the circumstances surrounding the image’s dissemination. The state appears to argue that
any image of another person who is depicted in a sexual act or whose intimate parts are
exposed portrays sexual conduct in a patently offensive way if the image is disseminated
without the subject’s consent. Although we agree that such nonconsensual dissemination
is offensive, that is not the test for determining whether a work is obscene. Even though
some images subject to regulation under Minn. Stat. § 617.261 might satisfy the definition
of obscenity and therefore may be proscribed consistent with the First Amendment, we
cannot say, as a matter of law, that every image subject to regulation under the statute
portrays sexual conduct in a patently offensive way and is therefore beyond First
Amendment protection.
The state also contends that Minn. Stat. § 617.261 does not implicate the First
Amendment because it is a privacy regulation. But privacy is not one of the recognized
“delineated categories” of speech excepted from First Amendment protection. See A.J.B.,
929 N.W.2d at 846 (noting established exceptions). And “[t]he Supreme Court has been
reluctant to expand these categories of unprotected speech.” Id.; see Stevens, 559 U.S. at
472, 130 S. Ct. at 1586 (“Our decisions . . . cannot be taken as establishing a freewheeling
authority to declare new categories of speech outside the scope of the First Amendment.”).
In fact, the Supreme Court has stated, “We in no sense suggest that speech on private
matters falls into one of the narrow and well-defined classes of expression which carries
13

 so little social value, such as obscenity, that the State can prohibit and punish such
expression by all persons in its jurisdiction.” Connick v. Myers, 461 U.S. 138, 147, 103 S.
Ct. 1684, 1690 (1983).
We recognize that the disseminations proscribed under Minn. Stat. § 617.261 could
invade the privacy rights of others and that, under certain circumstances, such
disseminations may be proscribed consistent with the First Amendment. See Dunham, 708
N.W.2d at 566 (rejecting a First Amendment challenge to Minnesota’s criminal harassment
statute after concluding that the statute was narrowly tailored because it “only regulates
speech or conduct that constitutes . . . substantial invasions of one’s privacy” and its focus
was “to prohibit repeated and unwanted acts, words, or gestures that have or are intended
to have a substantial adverse effect on the safety, security, or privacy of another”). But we
cannot say, as a matter of law, that every dissemination regulated under Minn. Stat.
§ 617.261 is beyond the protection of the First Amendment as an invasion of privacy.
In sum, Minn. Stat. § 617.261’s sweep is not limited to expressive conduct that is
categorically excluded from First Amendment protection.3

3

Two state supreme courts have rejected arguments similar to those made by the state.
People v. Austin, ___ N.E.3d ___, ___, 2019 WL 5287962, at *6-7 (Ill. Oct. 18, 2019)
(rejecting state’s argument that “speech that invades privacy” should be categorically
excluded from First Amendment protection); State v. VanBuren, 214 A.3d 791, 798-807
(Vt. 2019) (rejecting state’s argument that “nonconsensual pornography, as defined in [a]
Vermont statute, falls outside of the realm of constitutionally protected speech for two
reasons: such speech amounts to obscenity, and it constitutes an extreme invasion of
privacy unprotected by the First Amendment”).
14

 3.

Minn. Stat. § 617.261 prohibits conduct that is beyond its legitimate
sweep.

Having concluded that Minn. Stat. § 617.261 regulates expressive conduct that is
not categorically excluded from First Amendment protection, we ask whether it has a
legitimate sweep and, if so, whether the statute extends beyond that sweep.
The state argues that it
has a significant interest in seeking to deter the nonconsensual
dissemination of private, sexually explicit images. This
conduct can be construed as a form of domestic abuse, as
abusers use the existence of these sexually explicit images to
threaten, intimidate, or coerce their partners. It is also a form
of sexual harassment that seeks to degrade and humiliate those
depicted. . . .
The government has a strong interest in preventing the
harm done to victims of nonconsensual porn; that harm is farreaching. Victims have lost jobs, been forced to change
schools, change their names, and have been subjected to reallife stalking and harassment.
(Citations and quotations omitted.)
We certainly agree that the state’s harm-preventing policy interest is legitimate.4
Minnesota’s First Amendment caselaw indicates that speech and expressive conduct can

4

The state cites scholarly review articles that describe the problem of nonconsensual
dissemination of private, sexually explicit images and the indisputable harm that it causes.
See Zak Franklin, Comment, Justice for Revenge Porn Victims: Legal Theories to
Overcome Claims of Civil Immunity by Operators of Revenge Porn Websites, 102 Calif. L.
Rev. 1303, 1304 (2014) (emphasizing that harm done to victims of revenge porn is “often
vast” and that many victims report that this practice has had detrimental effects on their
lives); see also Mudasir Kamal & William J. Newman, Revenge Pornography: Mental
Health Implications and Related Legislation, 44 J. Am. Acad. Psychiatry & Law 359, 362
(2016) (explaining long-term personal and psychological consequences of revenge porn
and noting that “the disseminated photographs or videos may continue to haunt [victims]
15

 be proscribed in an effort to serve that interest without violating the First Amendment. For
example, in Dunham, this court held that Minn. Stat. § 609.748, subd. 1(a)(1) (2004),
which defines harassment, does not substantially infringe on constitutionally protected
speech or expression, and is not facially overbroad. 708 N.W.2d at 559. This court
reasoned in part that “the language of the statute is directed against . . . speech or conduct
that is intended to have a substantial adverse effect.” Id. at 566. Similarly, in State v.
Stockwell, this court held that the stalking provision in Minn. Stat. § 609.749, subd. 2(a)(2)
(2006), is not unconstitutionally void for facial overbreadth in part because “it requires that
the actor knows her conduct will cause fear and causes that reaction.” 770 N.W.2d 533,
535, 539-40 (Minn. App. 2009), review denied (Minn. Oct. 28, 2009).
Like the statutes in Dunham and Stockwell, Minn. Stat. § 617.261 serves the
legitimate harm-preventing interest advanced by the state by proscribing disseminations
that knowingly cause or are intended to cause a specified harm. But Minn. Stat. § 617.261
reaches much further, subjecting to punishment those who disseminate sexual images
without either knowingly causing or intending to cause a specified harm. Casillas relies
on that reach in support of his overbreadth challenge. He notes the statute’s “lack of an
intent to harm element or a requirement that the dissemination actually resulted in harm”
and asserts that “[t]he negligent knowledge requirement just adds to the . . . constitutional
concern.” He argues that Minn. Stat. § 617.261 “punishes the act of dissemination itself
without any accompanying criminal intent element or causation of harm, under a negligent

throughout their lives” and that victims of revenge porn experience cyber harassment,
cyberstalking, and significant emotional distress).
16

 standard,” and that it “lacks the sufficient criminal intent element that may have narrowed
the law to avoid constitutional infirmity.”
Caselaw supports Casillas’s argument that Minn. Stat. § 617.261’s lack of an intentto-harm element, coupled with a negligence mens rea, runs afoul of the First Amendment.
For example, in A.J.B., the Minnesota Supreme Court held that Minn. Stat. § 609.749,
subd. 2(6) (2018), violated the First Amendment because it was facially overbroad. 929
N.W.2d at 844. That statute provided that a person who harassed another by committing
the following act was guilty of a gross misdemeanor: “repeatedly mails or delivers or
causes the delivery by any means, including electronically, of letters, telegrams, messages,
packages, through assistive devices for people with vision impairments or hearing loss, or
any communication made through any available technologies or other objects.” Minn. Stat.
§ 609.749, subd. 2(6). In invalidating the statute, the Minnesota Supreme Court noted that
it “subject[ed] even negligent conduct to criminal sanction” and that it “criminalize[d]
communications even when the person [did] not know—much less intend—that the
communication [would] frighten, threaten, oppress, persecute, or intimidate the victim.”
A.J.B., 929 N.W.2d at 854-55. The supreme court concluded that “[t]he statute’s inclusion
of a negligence standard [made] it more likely that the statute [would] have a chilling effect
on expression protected by the First Amendment.” Id. at 855 (quotation omitted).
The Minnesota Supreme Court also held that Minn. Stat. § 609.795, subd. 1(3)
(2018), violated the First Amendment because it was facially overbroad. Id. at 844. That
statute provided that whoever “with the intent to abuse, disturb, or cause distress,
repeatedly mails or delivers or causes the delivery by any means, including electronically,
17

 of letters, telegrams, or packages” is guilty of a misdemeanor. Minn. Stat. § 609.795, subd.
1(3). In holding that the statute was unconstitutionally overbroad, the supreme court noted
that Minn. Stat. § 609.795 included a specific-intent element that limited the sweep of the
statute by excluding negligent acts from the statute’s reach. A.J.B., 929 N.W.2d at 858.
The supreme court said that “[u]nder certain circumstances, a specific-intent requirement
may sufficiently limit the reach of a statute into protected speech and expressive conduct
to avoid overbreadth.” Id. at 860. But the supreme court concluded that the “intentional
conduct” element was not a sufficient limitation to save the statute, reasoning in part that
“the limiting effect of the specific-intent requirement is counterbalanced by the absence
. . . of any requirement that the victim actually suffer any harm.” Id. at 861. In sum, “[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.” Id.
Similarly, in Hensel, the Minnesota Supreme Court held that Minn. Stat. § 609.72,
subd. 1(2) (2016), which prohibited disturbing assemblies or meetings, was facially
unconstitutional under the First Amendment because it was substantially overbroad. 901
N.W.2d at 168. The supreme court reasoned in part that
[r]ather than prohibiting only intentional conduct, . . . the
statute’s mens-rea element prohibits actions done with
knowledge or reasonable grounds to know that the act will tend
to disturb others. This means that an individual need only
perform an act that is negligent, which allows the statute to
reach all types of acts, intentional or not, that have a tendency
to disturb others. The statute’s inclusion of a negligence
standard makes it more likely that the statute will have a

18

 chilling effect on expression protected by the First
Amendment, the key concern of the overbreadth doctrine.
Id. at 174 (quotations omitted).
Conversely, in State v. Muccio, the Minnesota Supreme Court held that Minn. Stat.
§ 609.352, subd. 2a(2) (2016), which prohibits an adult from participating in the electronic
transmission of information relating to or describing the sexual conduct of any person, if
the communication is directed at a child and the adult acts with the specific intent to arouse
the sexual desire of any person, is not substantially overbroad in violation of the First
Amendment. 890 N.W.2d 914, 917-18 (Minn. 2017). The supreme court reasoned in part
that “because of its specific-intent requirement, the statute does not target broad categories
of speech.” Id. at 928 (citation omitted); see also State v. Washington-Davis, 881 N.W.2d
531, 533, 539 (Minn. 2016) (holding that “Minnesota Statutes § 609.322, subd. 1a(1)-(2)
(2014), which criminalizes the promotion of prostitution and the solicitation of individuals
to practice prostitution, is not substantially overbroad in violation of the First Amendment”
in part because the statute criminalizes the solicitation and promotion of individuals to
engage in sexual conduct only if the sexual conduct is done for the purpose of satisfying
the actor’s sexual impulses).
This court has similarly considered the impact of a specific-intent requirement in an
overbreadth analysis. See Stockwell, 770 N.W.2d at 539; Dunham, 708 N.W.2d at 566.
Most recently, in Linert v. MacDonald, this court held that Minn. Stat. § 211B.02 (2016),
which prohibits candidates from knowingly making false claims of support or
endorsement, is not facially overbroad in violation of the First Amendment. 901 N.W.2d

19

 664, 665 (Minn. App. 2017). This court reasoned in part that “the statute’s specific-intent
requirement—that false claims be knowingly made—ensures that the statute does not target
broad categories of speech.” Id. at 669 (quotation omitted).
Two other state supreme courts have considered the impact of an intent-to-harm
element—or lack thereof—when analyzing facial First Amendment challenges to laws
similar to Minn. Stat. § 617.261. Austin, 2019 WL 5287962, at *19-20; VanBuren, 214
A.3d at 812. For example, the Illinois Supreme Court rejected an overbreadth challenge to
720 Ill. Comp. Stat. 5/11-23.5(b) (2016), which criminalizes the nonconsensual
dissemination of private sexual images. Austin, 2019 WL 5287962, at *16-20. In doing
so, it rejected “the circuit court’s criticism . . . that the statute does not require proof of an
illicit motive or malicious purpose.” Id. at *19. The Illinois Supreme Court recognized
that
most state laws prohibiting the nonconsensual dissemination of
private sexual images expressly require some form of
malicious purpose or illicit motive as a distinct element of the
offense. . . .
In contrast, the legislatures of four states, including our
General Assembly, have chosen not to expressly include
“malice” as a distinct element of the offense.
Id.
In rejecting the circuit court’s reasoning, the Illinois Supreme Court noted that “[t]he
circuit court did not, however, cite legal authority for the proposition that a criminal statute
necessarily must contain an illicit motive or malicious purpose to survive an overbreadth
challenge.” Id. But our supreme court has provided us with such authority, and we are

20

 bound by that precedent. See State v. Curtis, 921 N.W.2d 342, 343 (Minn. 2018) (holding
that “[t]he court of appeals is bound by supreme court precedent”).
The Vermont Supreme Court also rejected a facial First Amendment challenge to
its statute banning disclosure of nonconsensual pornography, Vt. Stat. Ann. tit. 13, § 2606
(2015). VanBuren, 214 A.3d at 814. In doing so, the Vermont Supreme Court considered
whether Vermont’s statute was narrowly tailored to serve a compelling state interest.
VanBuren, 214 A.3d at 807, 811-14. In concluding that it was narrowly tailored, the
Vermont Supreme Court reasoned in part that:
[D]isclosure is only criminal if the discloser knowingly
discloses the images without the victim’s consent. We
construe this intent requirement to require knowledge of both
the fact of disclosing, and the fact of nonconsent. Individuals
are highly unlikely to accidentally violate this statute while
engaging in otherwise permitted speech. In fact, § 2606 goes
further, requiring not only knowledge of the above elements,
but a specific intent to harm, harass, intimidate, threaten, or
coerce the person depicted or to profit financially.
Id. at 812 (emphasis added) (emphasis omitted) (citations omitted).
Unlike the Vermont statute, Minn. Stat. § 617.261 lacks a specific intent-to-harm
element. Although Minn. Stat. § 617.261 has a legitimate harm-preventing purpose, its
lack of a specific-intent requirement and use of a negligence mens rea allows it to reach
protected First Amendment expression that neither causes nor is intended to cause a
specified harm.

That reach goes beyond the legitimate state interest justifying the

proscription of otherwise protected First Amendment expression. Based on the Minnesota
caselaw described above, we conclude that Minn. Stat. § 617.261 proscribes expressive
conduct in violation of the First Amendment.
21

 4.

Minn. Stat. § 617.261 is overbroad in violation of the First Amendment.

Having determined that Minn. Stat. § 617.261 proscribes expressive conduct in
violation of the First Amendment, we turn to the critical inquiry: Does Minn. Stat. §
617.261 prohibit a substantial amount of constitutionally protected speech?
In this age of expansive internet communication, images may be disseminated,
received, and observed with ease. As the Court of Appeals of Texas noted in considering
a First Amendment challenge to a law similar to Minn. Stat. § 617.261:
Today, a person can share a photograph or video with
an untold number of people with a mere click of a button. The
daily sharing of visual material, for many, has become almost
ritualistic. And once the act of sharing is accomplished, it is
highly questionable whether that act ever can be completely
rescinded. But assuming that the visual material is not
otherwise protected, these persons are acting within their rights
when they share visual material with others.
Ex parte Jones, ___ S.W.3d ___, ___, 2018 WL 2228888, at *7 (Tex. App. May 16, 2018)
(footnote omitted), review granted (Tex. Crim. App. July 25, 2018). The Texas court noted
that
a Facebook user with her account settings set to share posts as
“public” can share a picture to her Facebook page that not only
can be viewed by the nearly two billion Facebook users, but
also by any other person with internet access whose access to
Facebook is not otherwise restricted.
Id. at *7 n.16.
Anyone who is familiar with our current American culture is likely aware that the
free flow of information described above contains noncommercial images of people
depicted in sexual acts, or whose intimate parts are exposed, and that the subjects of such

22

 images often consent to their dissemination.5 Indeed, some individuals, beyond merely
consenting, seek to promote the broad dissemination of such images, for either political or
economic reasons. See, e.g., Debra L. Logan, Note, Exposing Nipples as Political Speech,
41 Law & Psychol. Rev. 173, 179 (2017) (“Some women bare their breasts to advocate the
position that public decency laws should treat men and women equally; others confront the
stigmatization of their bodies as a form of political theater to draw attention, whether
toward or against a political candidate, to advocate a political position, or simply to defend
the rights of breastfeeding mothers.”); 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) (compiling views of women in the adult-entertainment industry).
In this context, Minn. Stat. § 617.261’s negligence mens rea is problematic. The
statute does not define or explain the circumstances that should cause someone who
observes an image described in Minn. Stat. § 617.261 to reasonably know that the person
depicted in the image did not consent to its dissemination or that the image was obtained
or created under circumstances in which the person depicted had a reasonable expectation
of privacy. Depending on one’s sensibilities and tolerance of sexual images on publicly
available mediums, reasonable people could reach different conclusions regarding the
privacy expectations associated with such images, rendering the reasonable knowledge

“We now live in an age where celebrities purposely leak their sex tapes to the Internet,
hoping they’ll go viral, and thereby garner further fame and riches. Stars ‘mistakenly’ post
their nude pictures to Twitter (oops!).” Michael L. Baroni, New “Revenge Porn” Law Is
Impotent, Orange County Law., Feb. 2014, at 12.
5

23

 standard highly subjective. Indeed, in concluding that Casillas was guilty, the district court
reasoned that “an expectation of privacy regarding the image is implicitly inherent from
the nature of the act depicted,” indicating that some might view a sexual image as private
and its dissemination nonconsensual regardless of the actual expectations of the person
depicted in the image.
The dissenting opinion in People v. Austin sets forth a telling hypothetical that
reflects our concern:
A hypothetical posed to the State during oral argument
illustrates this point. Two people go out on a date, and one
later sends the other a text message containing an unsolicited
and unappreciated nude photo. The recipient then goes to a
friend, shows the friend the photo, and says, “look what this
person sent me.” Has the recipient committed a felony? The
State conceded that the recipient had, assuming the recipient
knew or should have known that the photo was intended to
remain a private communication.
2019 WL 5287962, at *24 (Garman, J., dissenting).
It is not difficult to envision a substantial number of situations in which a person
observes 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, without knowing that the image was obtained or
created under circumstances indicating that the person depicted had a reasonable
expectation of privacy, and without intending to cause a specified harm. Given the ease
with which impermissible disseminations under the statute may be further disseminated
without the intent to harm necessary to proscribe expressive conduct without violating the

24

 First Amendment, we conclude that Minn. Stat. § 617.261 has the potential to reach a
substantial amount of protected expressive conduct.6
Moreover, that substantial reach has the very chilling effect that the overbreadth
doctrine is intended to prevent. See Hensel, 901 N.W.2d at 174 (describing the “chilling
effect on expression protected by the First Amendment” as “the key concern of the
overbreadth doctrine”). An observer of an image on a publicly available medium that
depicts a person in a sexual act, or whose intimate parts are exposed, would be wise to
refrain from further disseminating that image or risk criminal prosecution under Minn. Stat.
§ 617.261 based on a prosecutor’s subjective belief that the image’s content should have
caused the observer to know that the person depicted 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. And that risk exists even though such
images are often present on publicly available mediums with the consent of the people
depicted.7
In sum, Minn. Stat. § 617.261 proscribes a substantial amount of protected
expressive conduct, and it is therefore overbroad in violation of the First Amendment.

6

Although the statute includes certain exemptions, they do not meaningfully limit the
statute’s impermissible reach of further disseminations as described above. See Minn. Stat.
§ 617.261, subd. 5.
7
The state argues that the risk of erroneous prosecution of those who disseminate a sexual
image without intent to harm is lessened because “the prosecutor would have to [determine
that] there [was] a reasonable knowledge . . . that they would have known.” That argument
does not alleviate our constitutional concern. See Stevens, 559 U.S. at 480, 130 S. Ct. at
1591 (“We would not uphold an unconstitutional statute merely because the Government
promised to use it responsibly.”).
25

 5.

The remedy for the First Amendment violation is to invalidate Minn.
Stat. § 617.261.

Having determined that Minn. Stat. § 617.261 is overbroad in violation of the First
Amendment, we consider whether applying a narrowing construction or severing
problematic language from the statute would remedy the constitutional defect. A.J.B., 929
N.W.2d at 848.
When a court determines that a statute is unconstitutional, it must invalidate as much
of the statute as is necessary to eliminate the unconstitutionality. Archer Daniels Midland
Co. v. State, 315 N.W.2d 597, 600 (Minn. 1982). We look to the intent of the legislature
to fashion a remedy consistent with that intent. Id. “[W]e are not to sever a statute if the
remaining valid provisions, standing alone, are incomplete and are incapable of being
executed in accordance with the legislative intent.” A.J.B., 929 N.W.2d at 848 (quotation
omitted). Although we can strike a severable statutory provision if it is unconstitutional
and void, “we cannot add language to a statute in order to render it constitutionally
permissible.” Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 836 (Minn. 2002)
(quotation omitted).
The state argues that Minn. Stat. § 617.261 is subject to a limiting construction that
can remedy its constitutional defect. For example, the state suggests that we construe the
statute to refer only to obscenity. But limiting the statute’s application to obscenity is
inconsistent with the plain language of the statute, which defines the images subject to
regulation much more broadly than the recognized definition of obscenity, indicating that
the legislature did not intend such a limitation.

26

 The state also suggests that we construe the statute to refer only to substantial
invasions of privacy, which is in line with the parameters set forth in the caselaw above.
Consistent with that suggestion, the state recommends that we sever the negligence
standard from the statute, arguing, “There are no apparent reasons to doubt that the
Legislature would have enacted the statute without the negligence standard.”
Again, the constitutional defect in Minn. Stat. § 617.261 stems from its lack of an
intent-to-harm requirement and its use of a negligence mens rea. Correcting that defect
would require us to rewrite the statute. We would have to sever the negligence mens rea
standards from subdivision 1(2) and (3) of Minn. Stat. § 617.261. Doing so would limit
the statute’s reach to those who 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.
Such circumstances could show intent to harm. See State v. Cooper, 561 N.W.2d 175, 179
(Minn. 1997) (stating that because intent is a state of mind, it is “generally proved
circumstantially—by drawing inferences from the defendant’s words and actions in light
of the totality of the circumstances,” and that when considering circumstantial evidence of
intent, “the jury may infer that a person intends the natural and probable consequences of
his actions”).
Although severing the negligence mens rea standards would limit the statute’s reach
to circumstances in which the disseminator intended harm—consistent with Minnesota
caselaw upholding First Amendment proscriptions based on the state’s legitimate harmpreventing interest—it would also result in a statute that classifies an intentionally harmful
27

 dissemination as both a gross misdemeanor and a felony. See Minn. Stat. § 617.261, subd.
2(a) (stating that normally, whoever violates Minn. Stat. § 617.261, subd. 1, is guilty of a
gross misdemeanor), (b)(5) (stating that a felony results if “the actor disseminates the
image with intent to harass”). We would have to add language to the statute to reconcile
that conflict.
In sum, we agree with the state that there is no apparent reason to doubt that the
legislature would have enacted the statute without the negligence standard. But achieving
that result on the legislature’s behalf requires us to “‘perform[] . . . plastic surgery upon the
face of the [statute],’ rather than just adopting an alternative, reasonable construction of the
statute’s actual words.” Hensel, 901 N.W.2d at 176-77 (alterations in original) (quoting
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153, 89 S. Ct. 935, 940 (1969)). This
we will not do. See Stevens, 559 U.S. at 480, 130 S. Ct. at 1592 (explaining that rewriting
a statute to “conform it to constitutional requirements” would constitute a “serious invasion
of the legislative domain”). Such a “shave-a-little-off-here and throw-in-a-few-wordsthere statute . . . may well be a more sensible statute, but at the end of the day, it bears little
resemblance to the statute that the Legislature actually passed.” Hensel, 901 N.W.2d at
180.
If a statute is “unable to be saved by a narrowing construction or severance, the
remaining option is to invalidate the statute.” A.J.B., 929 N.W.2d at 848 (quotation
omitted). We recognize that “invalidation of a statute for substantial overbreadth is strong
medicine that should be used only as a last resort.” Washington-Davis, 881 N.W.2d at 540
(quotation omitted). But Minn. Stat. § 617.261 reaches a substantial amount of protected
28

 speech in violation of the First Amendment, and we cannot remedy the constitutional
infirmity through a narrowing construction or severance. We therefore hold that Minn.
Stat. § 617.261 is facially overbroad in violation of the First Amendment to the United
States Constitution. Consequently, Minn. Stat. § 617.261 is void.
Our holding in no way changes our view that Casillas’s conduct in violation of
Minn. Stat. § 617.261—of which he was convicted—is abhorrent. Nor should it be read
as failing to appreciate the significant harm that the nonconsensual dissemination of private
sexual images causes. The state legitimately seeks to punish that conduct. But the state
cannot do so under a statute that is written too broadly and therefore violates the First
Amendment. In the end, we are constitutionally obligated to faithfully apply the law.
DECISION
Because Minn. Stat. § 617.261 is facially invalid under the First Amendment to the
United States Constitution, we reverse Casillas’s conviction and sentence under that
statute, without addressing his remaining arguments for relief.
Reversed.

29