Minnesota revenge porn law struck down by state appeals court

The state Court of Appeals struck down Minnesota’s revenge porn law on Monday, arguing that the law is unconstitutional because it limits free speech rights.

The ruling came in the case of Michael Casillas, a man convicted under the law in 2017. Casillas used his ex-girlfriend’s computer passwords to obtain sexual photos and videos of her, then posted a video online that showed the woman having sex, a trial court found.

In its ruling, the appeals court said Casillas’ actions were “abhorrent” but that Minnesota’s law violates free speech rights and must be invalidated.

The revenge porn law is too broad because it does not require prosecutors to prove a person intended to harm an ex-lover by distributing sexual images of them, appeals court judges found.

State Rep. John Lesch, who authored the 2016 law, said the appeals court’s decision ignores privacy concerns. Lesch, DFL-St. Paul, said he hoped Attorney General Keith Ellison appeals to the state Supreme Court.

“I think the Court of Appeals is going to have to get up to speed on the digital age,” Lesch said in an interview. “If you are a victim of revenge porn, be it malicious or whatever kind, you have no recourse until the Minnesota Supreme Court takes this language up.”

Casillas was sentenced to 23 months in prison but appealed. His case was the first under the revenge porn law to make it to the appeals court, said John Arechigo, the man’s attorney.

Arechigo said he “100 percent foresaw” legal challenges when the Legislature passed the law in 2016. The measure passed 62-3 in the Senate and 128-0 in the House after lawmakers heard emotional testimony from a woman who said an ex-boyfriend had threatened to post a sex tape of them online.

The law is unconstitutional because it makes a negligent person guilty – not just one who intended to cause harm, Arechigo said.

“The law reaches people who maybe share a photograph or disseminate something accidentally. They didn’t mean to post a photo online,” Arechigo said in a telephone interview. “That’s the problem with the negligence standard is that it’s so far-reaching.”

Dakota County or Attorney General Keith Ellison could appeal the ruling to the state Supreme Court. Justices would then need to decide whether to take the case.

Gov. Tim Walz said he expected the case would go before the state Supreme Court.

“I don’t want to comment on it, but those rules are in place for a reason to protect people from that,” Walz told reporters. “I’ll go take a look at (the ruling). Looks like this one will end up in the Supreme Court.”