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State v. Casillas

Court of Appeals of Minnesota

December 23, 2019

State of Minnesota, Respondent,
v.
Michael Anthony Casillas, Appellant.

          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.

         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."

         The district court entered judgment of conviction, denied Casillas's motion for a downward dispositional sentencing departure, and ordered him to serve a presumptive 23-month 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 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 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.

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:

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 ...

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