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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

A Blind Spot in the Law

In May the Minnesota Court of Appeals held the state’s criminal defamation statute unconstitutional—leaving victims and prosecutors with less recourse against “revenge porn” and similar problems. Now a legislative working group is looking to plug that hole in the law while staying on the right side of the 1st Amendment.

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By invalidating Minnesota’s criminal-defamation statute as unconstitutional, the Minnesota Court of Appeals has ignited an effort to criminalize distribution of “revenge porn” and similar uses of the internet.

A “legislative working group” began meeting in June, one month after the court issued its opinion in State v. Turner on May 26.1  Legislators, lawyers, and advocates of both battered women and civil liberties are represented.2

Their core focus is revenge porn, which involves disseminating sexually explicit images without the subject’s consent. Another focus is on persons who make a false claim of identity for purposes of soliciting sex, as was the case in Turner.

About half of U.S. states have revenge-porn laws and others are considering them.3 Draft federal legislation also is circulating.4

“These guys who are putting naked photos online, they know we can’t get to them because of the status of the law. They’re not your typical criminal defendant.”

– State Rep. John Lesch, DFL-St. Paul

According to Rep. John Lesch, DFL-St. Paul, Minnesota needs to address both the increasing number of victims and the ingenuity of pornographers.

“I hear from victims who tell me that the perpetrators know the status of the law, so they use this against these women,” said Lesch, a St. Paul prosecutor. “These guys who are putting naked photos online, they know we can’t get to them because of the status of the law. They’re not your typical criminal defendant.”5

Lesch helped author House File 18, which was introduced during Minnesota’s short special session in June. The bill aims to fix constitutional problems with the criminal-defamation statute while creating a new statute that would make it a felony to falsely use someone else’s identity “to invite, encourage, or solicit another to participate in sexual contact or penetration with the individual.”6

The bill would also make it a felony to intentionally disseminate “private sexual images” when (1) the adult is identifiable and “is engaged in a sexual act or whose intimate parts are exposed,” (2) the defendant obtains the image “under circumstances in which a reasonable person would know or understand that the image was to remain private,” and (3) the defendant “knows or should have known that the person in the image has not consented to the dissemination.”

Lesch said the group will continue working until the March 2016 legislative session. Their task is delicate in light of the 1st Amendment. Revenge-porn images might be constitutionally protected if created by consenting adults. In addition, the threat of enacting another unconstitutionally overbroad law looms.

The threat materialized this summer in Arizona, where a revenge-porn statute like House File 18 makes it a felony to distribute nude images “if the person knows or should have known” the person depicted did not consent. After bookstores and others sued the state, prosecutors agreed not to enforce the statute owing to concerns it would apply to non-pornographers.7

“There are books on my shelves right now that might be illegal to sell under this law,” a Tempe, Ariz., bookseller said. “How am I supposed to know whether the subjects of these photos gave their permission?”8

The law invalidated

Although the defendant in State v. Turner was not accused of distributing photographs without consent, revenge was an alleged motive for what prosecutors said had occurred. Turner was accused of placing a sexually explicit Craigslist ad claiming to be his ex-girlfriend and her daughter and providing their phone numbers. As a result, they received sexual solicitations and pornographic images.

Prosecutors conceded the criminal-defamation statute was overbroad but suggested it could be construed narrowly. The court of appeals held that it could not because doing so would have meant rewriting the law, which “would constitute a serious invasion of the legislative domain.”9

Enter Lesch and the legislative working group. Their efforts are bolstered by advocates at the Cyber Civil Rights Initiative, which seeks pro bono help for victims and assists with drafting proposed statutes.10

The nonprofit’s vice president, University of Miami Professor Mary Anne Franks, is part of Minnesota’s legislative group.11 In her “Guide for Legislators,” she states:

  • 90 percent of revenge porn victims are women.
  • 59 percent had their full names posted.
  • 57 percent said an ex-boyfriend did it.
  • 42 percent sought psychological services because of it.12

Harm can spread quickly. “In a matter of days, that image can dominate the first several pages of ‘hits’ on the victim’s name in a search engine,” Franks writes.

Meanwhile civil libertarians stand watch. The American Civil Liberties Union was behind the challenge to Arizona’s law on grounds it was overbroad and a content-based restriction on protected speech.13

The federal complaint cited specific titles of books that it might be a felony to sell and warned that a vendor could be prosecuted for selling a magazine with pictures of unclothed Abu Ghraib prisoners. The plaintiffs also alleged the statute “creates criminal liability for negligent speech” by requiring proof only that the defendant “should have known” the dissemination was nonconsensual.

In July, United States District Judge Susan R. Bolton entered a Final Decree permanently enjoining the state “from enforcing, threatening to enforce, or otherwise using” the law.14 Arizona agreed to pay the plaintiffs’ attorneys’ fees.

Minnesota’s legislative working group includes representation from ACLU of Minnesota as well as Turner’s criminal defense lawyer, John Arechigo of Arechigo Stokka in St. Paul. He told City Pages he agreed there should be a law. “We certainly don’t want people out there doing this stuff—throwing out the sex tapes or posting photos of exes,” he said. 15

But as both Arechigo and the court of appeals made clear, the criminal-defamation statute was the wrong tool for punishing revengeful uses of the internet.

Constitutionally, a “sitting duck”

While Minnesota is not alone in targeting revenge porn, it also is not unique in recognizing its criminal-defamation law is an unconstitutional relic. As Minneapolis attorney Mark Anfinson told the Star Tribune, the statute had been a “sitting duck constitutionally for decades.”16

Its core problem was that it defined “defamatory matter” as “anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.”17 In other words, it criminalized truthful speech. There was an exception for truth “communicated with good motives and for justifiable ends,” but the court of appeals held the exception “runs contrary to our state’s civil defamation definition,” which makes truth an absolute defense.

The statute also excluded “fair comment made in good faith with respect to persons participating in matters of public concern.” That exclusion, according to the court, failed to reflect the “actual malice” standard of New York Times v. Sullivan.18

The United States Supreme Court issued that landmark opinion in March 1964, a year after Minnesota’s criminal-defamation statute was last amended. The case forbids states from awarding defamation damages to public officials without proof of actual malice. Eight months later, in Garrison v. Louisiana,19 the Supreme Court applied the standard to criminal defamation.

Taken together, the cases prevent states from punishing speech about public officials without proof that the defamer knew it was false or acted in reckless disregard of truth or falsity. Although the law is more lenient in favor of private-person plaintiffs, truth still is an absolute defense.

According to the court of appeals, Minnesota’s criminal-defamation statute, which dated to the 1890s, failed to reflect these “seminal libel and defamation cases.” It was a relic of a time when freedom of speech meant something much different.

Libel was a common-law crime imported to the Colonies, and by 1952 the United States Supreme Court observed that “every American jurisdiction—the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico—punish libels directed at individuals.”20

The judiciary deferred to elected and other public officials to determine what was wholesome and therefore legal, irrespective of whether the speech was true or an opinion. Between 1907 and 1930, the Minnesota Supreme Court affirmed efforts to criminally punish the St. Paul Pioneer Press for publishing truthful details about an execution, to shut down another newspaper as a nuisance, and to ban the film The Birth of a Nation.21

The deference began eroding with New York Times. Minnesota was among the states that kept criminal-defamation statutes on the books, but by 1970 prosecutions under them had become “extremely rare.”22 As 8th Circuit Judge Donald P. Lay explained in a 1973 opinion striking down a federal statute that criminalized using the mails for truthful but “scurrilous” communications, “a strong argument may be made that there remains little constitutional vitality to criminal libel laws.”23

As both the internet and digital photography proliferated at the turn of the 21st century, defamation had become the province of the civil law and those who could afford it. The law of privacy evolved similarly. Although Minnesota made “interference with privacy” a crime in 1979, the statute applied only to “surreptitious” intrusions.24

The problem is, most revenge porn was not surreptitiously recorded. And many of its victims lack the financial resources to pay civil lawyers. If Minnesota’s legislative working group can draft a statute that jibes with the 1st Amendment, criminal law could help fill the gap.


STEVEN P. AGGERGAARD is a shareholder at Bassford Remele, PA in Minneapolis, where defamation and privacy matters are part of his practice.


 

Notes

1 864 N.W.2d 204 (Minn. Ct. App. 2015).

2 https://www.minnpost.com/political-agenda/2015/06/legislative-study-group-revenge-porn-meets-st-paul

3 http://www.cagoldberglaw.com/states-with-revenge-porn-laws

4 http://digitalcommons.law.scu.edu/historical/1003

5 Interview with author, 8/20/2015.

6 Available at http://www.leg.state.mn.us/leg/legis.aspx.

7 http://mediacoalition.org/files/litigation/antigone-books-brnovich-final-decree.pdf

8 https://www.aclu.org/news/first-amendment-lawsuit-challenges-arizona-criminal-law-banning-nude-images

9 864 N.W.2d at 211.

10 http://www.cybercivilrights.org

11 See n.2, supra.

12 http://www.endrevengeporn.org/main_2013/wp-content/uploads/2014/08/Guide-for-Legislators_7-18-14.pdf

13 http://mediacoalition.org/files/Antigone-Books-Horne-complaint.pdf

14 See n.7, supra.

15 http://www.citypages.com/news/prosecuting-revenge-porn-minnesotas-law-may-be-unconstitutional-6533123

16 http://www.startribune.com/minnesota-court-strikes-down-criminal-defamation-law-in-overturning-conviction-of-craigslist-revenge-poster/305044301/

17 Minn. Stat. §609.765.

18 376 U.S. 254 (1964).

19 379 U.S. 64 (1964).

20 Beauharnais v. Illinois, 343 U.S. 250, 255 (1952).

21 State v. Pioneer Press Co., 110 N.W. 867 (Minn. 1907); Bainbridge v. City of Minneapolis, 154 N.W. 964 (Minn. 1915); State ex rel. Olson v. Guilford, 228 N.W. 326 (Minn. 1930).

22 Tollett v. United States, 485 F.2d 1087, 1094 (8th Cir. 1973).

23 Id.

24 Minn. Stat. §609.746.

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