State v. Casillas, A19-0576

• Decision Date: 30 December 2020
• Docket Number: A19-0576
• Citation: 952 N.W.2d 629
• Parties: STATE of Minnesota, Appellant, v. Michael Anthony CASILLAS, Respondent.
• Court: Minnesota Supreme Court

952 N.W.2d 629

STATE of Minnesota, Appellant,

v.Michael Anthony CASILLAS, Respondent.

A19-0576

Supreme Court of Minnesota.

Filed: December 30, 2020

Keith M. Ellison, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Anna R. Light, Assistant Dakota County Attorney, for appellant.

John T. Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota, for respondent.

Leita Walker, Ballard Spahr LLP, Minneapolis, Minnesota; Michael A. Bamberger, Richard M. Zuckerman, Dentons US LLP, New York City, New York; and Raleigh Hannah Levine, Mitchell Hamline School of Law, Saint Paul, Minnesota, for amici curiae American Booksellers Association, Association of American Publishers, Inc., Media Coalition Foundation, Inc., and National Press Photographers Association.

Isabella Salomão Nascimento, Teresa J. Nelson, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota, for amicus curiae American Civil Liberties Union of Minnesota.

Tracy Shoberg, Battered Women's Justice Project, Minneapolis, Minnesota; Rana S. Alexander, Standpoint, Saint Paul, Minnesota; Lindsay J. Brice, Minnesota Coalition Against Sexual Assault, Saint Paul, Minnesota; and Katherine S. Barrett Wiik, Best & Flanagan LLP, Minneapolis, Minnesota, for amici curiae Cyber Civil Rights Initiative, Standpoint, Minnesota Coalition Against Sexual Assault, and the Battered Women's Justice Project.

Travis J. Smith, Murray County Attorney, Kelsey R. Kelley, Assistant Anoka County Attorney, William C. Lundy, Certified Student Attorney, Slayton, Minnesota, for amicus curiae Minnesota County Attorneys Association.

OPINION

HUDSON, Justice.

This case asks us to decide whether Minnesota's statute that criminalizes the nonconsensual dissemination of private sexual images, Minnesota Statutes § 617.261 (2020), is unconstitutional under the First Amendment to the United States Constitution. The district court found the statute was constitutional because it only prohibits obscenity, which is unprotected speech. The court of appeals reversed, holding that the statute prohibits more than obscenity and is unconstitutionally overbroad because it criminalizes a substantial amount of protected speech. Although we agree that Minnesota Statutes § 617.261 prohibits more than obscenity, we conclude that the statute does not violate the First Amendment because it survives strict scrutiny. Accordingly, we reverse the court of appeals’ decision and remand to that court for consideration of the outstanding issues raised by respondent Michael Anthony Casillas.

FACTS

In 2016, Michael Anthony Casillas and his girlfriend A.M. were engaged in a three-month romantic relationship. During this period, A.M. gave Casillas access to her Dish Network account so he could watch television at work. After the relationship ended, Casillas used A.M.’s login information to access her other online accounts, including her Verizon cloud account. From the cloud account, Casillas obtained a photograph and a video that depicted A.M. engaged in sexual relations with another adult male.

Casillas sent A.M. a text message threatening to disseminate both the photograph and video while concealing his identity through fake email accounts and IP changers (devices used to obfuscate the identity of the person accessing the internet). A.M. told Casillas that sharing the photograph and video without her consent is a prosecutable offense. Undeterred by A.M.’s warning, Casillas carried out his threat by sending the video to 44 individuals and posting it online.

Casillas was charged with a felony-level violation of Minnesota Statutes § 617.261, the statute that criminalizes the nonconsensual dissemination of private sexual images. In Dakota County District Court, he moved to dismiss the charge on constitutional grounds, alleging that the statute is overbroad, an impermissible content-based restriction, and void for vagueness. The district court denied the motion, concluding that the conduct regulated by the statute is entirely unprotected obscene speech. The district court also determined that any degree of overbreadth was insubstantial. Following a stipulated-facts trial, Casillas was found guilty and sentenced to 23 months in prison.

The court of appeals reversed, concluding that the statute prohibits more than obscenity and is unconstitutionally overbroad because it "proscribes a substantial amount of protected expressive conduct." State v. Casillas , 938 N.W.2d 74, 90 (Minn. App. 2019). Because the court of appeals held that the statute was overbroad, it did not rule on other issues raised by Casillas.¹ We granted the State's petition for further review to decide whether Minnesota Statutes § 617.261 is unconstitutional under the First Amendment.

ANALYSIS

Casillas claims Minnesota Statutes § 617.261 violates the First Amendment for two reasons.² First, he asserts that the statute is an impermissible content-based restriction that is not narrowly tailored to serve a compelling government interest. Second, he argues that the statute is overbroad because it punishes the act of dissemination itself without any accompanying criminal intent or causation of harm.

We review constitutional challenges to statutes de novo. State v. Jorgenson , 946 N.W.2d 596, 601 (Minn. 2020). Statutes are presumptively constitutional and we only strike them down "if absolutely necessary." Id. When a statute is a content-based restriction on speech, however, "[t]he State bears the burden of showing that" the statute "does not violate the First Amendment." State v. Melchert-Dinkel , 844 N.W.2d 13, 18 (Minn. 2014).

To prevail on an overbreadth claim, a challenger "must establish that ‘a substantial number of [a statute's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ " State v. Hensel , 901 N.W.2d 166, 170 (Minn. 2017) (alteration in original) (quoting United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ). The overbreadth doctrine is "strong medicine" that is employed sparingly. Broadrick v. Oklahoma , 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

I.

The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I.³ The First Amendment's Free Speech Clause applies "to the States through the Fourteenth Amendment." Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

"The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul , 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citations omitted). "[T]he amendment establishes that ‘above all else,’ the government ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ " Melchert-Dinkel , 844 N.W.2d at 18 (quoting Police Dep't of Chi. v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ). The Free Speech Clause is not limited to "the spoken or written word," but extends to other expressive conduct including videos and photographs. Texas v. Johnson , 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Additionally, it "appl[ies] with equal force to speech or expressive conduct on the Internet." In re Welfare of A.J.B. , 929 N.W.2d 840, 846 (Minn. 2019).

However, "First Amendment rights are not absolute under all circumstances." Greer v. Spock , 424 U.S. 828, 842, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (Powell, J., concurring); see also Miller v. California , 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) ("The First and Fourteenth Amendments have never been treated as absolutes." (citation omitted) (internal quotation marks omitted)). While "any significant restriction of First Amendment freedoms carries a heavy burden of justification," this burden is not an impossible standard for the State to meet. Greer , 424 U.S. at 843, 96 S.Ct. 1211 (Powell, J., concurring). With these principles in mind, we turn now to Minnesota Statutes § 617.261.

II.

Minnesota Statutes § 617.261 provides that:

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 reasonable expectation of privacy.

Minn. Stat. § 617.261, subd. 1. Violation of the statute is a gross misdemeanor. Id. , subd. 2(a). Any one of seven factors, however, can aggravate an offense to a felony.

Id. , subd. 2(b). In this case, Casillas was charged with a felony based on his intent to harass the victim by disseminating the private sexual images. Id. , subd. 2(b)(5). The statute also contains seven exemptions to prosecution and an expansive definitional section. Id. , subds. 5, 7.

As a preliminary matter, we must ascertain the scope of Minnesota Statutes § 617.261 and decide whether the statute covers any protected speech. Challenges to unprotected speech restrictions are analyzed differently than challenges to protected speech restrictions. State v. Muccio , 890 N.W.2d 914, 920 (Minn. 2017) (explaining that overbreadth challenges fail if a statute only proscribes unprotected speech); State v. Crawley , 819 N.W.2d 94, 109 (Minn. 2012) (explaining that content-based restrictions on unprotected speech are evaluated differently than similar restrictions on protected speech).

The State argues that this statute prohibits only unprotected speech for two reasons. First, the...