More reversals likely until State Supreme Court reviews overturned law
By Todd Nelson
BridgeTower Media Newswires
MINNEAPOLIS, MN — A St. Louis County man who posted explicit videos of a former girlfriend online had his revenge-porn convictions reversed as unconstitutional on June 15 in the latest fallout from a Minnesota Court of Appeals’ ruling.
More such reversals are likely until the Minnesota Supreme Court reviews the Court of Appeals’ decision that last December overturned the state’s law against revenge porn, said Rep. John Lesch, DFL-St. Paul, the bill’s lead author and an attorney.
That’s something the Supreme Court has indicated it will do, Lesch said. The law, passed in 2016, made revenge porn a gross misdemeanor or a felony with a maximum felony sentence of three years in prison or a $5,000 fine.
Both Monday’s reversal in State v. Saari and December’s in State v. Casillas involve “some pretty horrendous fact patterns of some really creepy guys doing terrible things to women,” Lesch said. “At a certain point you’ve got to stop and look and say ... is this really a First Amendment question for the creep or is it a privacy question for someone who did not authorize her sex video to be posted for her family, for all the world to see?”
In Monday’s unpublished opinion, a three-judge panel reversed the March 2019 convictions of Joseph Thomas Saari, 40, on two counts of nonconsensual dissemination of private sexual images. The court remanded the case to district court for re-sentencing because it used those revenge porn convictions in calculating his criminal history score when it sentenced him on convictions for charges including felony domestic assault and aggravated first-degree witness tampering. Saari is incarcerated at the Minnesota Correctional Facility in Rush City.
In the Saari opinion, Judges Tracy Smith, Matthew Johnson and Jeanne Cochran cited the Court of Appeals’ Casillas decision, which concluded that the state’s law against revenge porn was unconstitutional because it violated First Amendment protections of free speech. The court called Casillas’ conduct “abhorrent,” and said the state legitimately seeks to punish it. But the statute was written too broadly, criminalizing a substantial amount of protected speech in violation of the First Amendment in a way that the court could not remedy.
Saari posted two videos of sexual activities with the woman on a website without her permission, according to court documents. He posted the videos after his arrest on charges stemming from a September 2018 assault on the victim, using her identification and an electronically signed waiver to do so.
Theresa Paulson, an attorney who has represented revenge porn victims, said she expected the state would appeal the Saari ruling to preserve the convictions until the Supreme Court rules on the matter. Paulson said she hopes that would happen before the end of this year.
In one case, a client who had had private information posted online for years found that the activity stopped after the state made revenge porn a crime, Paulson said. “Literally a month after Casillas, new stuff was popping up,” Paulson said.
The postings can lead to further trouble for victims. “They’re having their image shared on the internet, they’re having their private information, their mailing address, their phone number shared and they’re getting contacted by creepy, creepy strangers,” Paulson said.
One question Paulson would like the Supreme Court to address is whether the state has to prove specific intent as an element of a revenge porn law.
“If the state has to prove specific intent then it’s you knew this was a private image and you intended to share this image for purposes of violating that person’s sense of privacy, not that you just shared an image that was created in private circumstances,” Paulson said.
The Supreme Court should view revenge porn through a privacy lens rather than a First Amendment lens, Lesch said.
“I don’t think the Court of Appeals got the magnitude of this issue and the effect it’s having on personal privacy,” Lesch said.
Federal courts have found that people have a privacy interest in their medical data and financial information, Lesch said.
“I think that the Minnesota Supreme Court will get that as well along these lines,” Lesch said. “Otherwise the reasoning leads to absurd results where somehow a peeping Tom has a First Amendment right to post bathroom photos of his neighbor online. It’s ridiculous but that’s what the Court of Appeals’ previous decision amounted to because they were trying to force it through the First Amendment loophole, which of course doesn’t work.”
Framing the law as a privacy right “is not an implausible argument to make,” law professor David Schultz of the University of Minnesota Law School said. But the Court of Appeals has made clear in Casillas that it viewed the revenge porn law as overly broad and potentially chilling of free speech, a view it reaffirmed in Saari.
“The framework of First Amendment law — all about free speech, all about pictures, art and a variety of things — is against him,” Schultz said of Lesch. “It’s not to say he shouldn’t win but he’s asking the court to make a pretty abrupt turn in the law and at the same time making that shift in a way where he can assure that the law that he wrote won’t be applied over broadly. That’s the real challenge for him.”
The U.S. Supreme Court may have the final say, Schultz said, because of the First Amendment issues the law raises.
