County District Court File No. 19HA-CR-17-4702
Ellison, Attorney General, St. Paul, Minnesota; and James C.
Backstrom, Dakota County Attorney, Anna Light, Assistant
County Attorney, Hastings, Minnesota (for respondent)
Arechigo, Arechigo & Stokka, P.A., St. Paul, Minnesota
Considered and decided by Larkin, Presiding Judge; Reyes,
Judge; and Slieter, Judge.
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.
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.
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.
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.
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.
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."
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.
district court err by rejecting Casillas's First
Amendment challenge to Minn. Stat. § 617.261?
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.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).
First Amendment provides that "Congress shall make no
law . . . abridging the freedom of
speech." 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.
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).
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).
Minnesota Supreme Court recently summarized the analysis
applicable to a First Amendment overbreadth challenge as
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
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
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
Id. at 847-48 (citations and quotations omitted).
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).
these principles in mind, we turn to the language of Minn.
Stat. § 617.261.
Minn. Stat. § 617.261 has a broad
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
(2) the actor knows or reasonably should know that
the person depicted in the image does not consent to the
(3) the image was obtained or created under circumstances in
which the actor knew or reasonably should have known
the person depicted had a ...