I disagree that the matter is settled
Did not say it was. However, the highest court in the state has given its interpretation about negligence, etc. So that is the direction in MN as of now.
and think it will take more cases to test the outer reaches of the extremely broad law.
Testing the outer edges is not required for a law to be enforceable.
The whole area of law is largely untested, or slowly being tested. But both Constitutionality and reasonable expectations of privacy by a subject have been addressed in case law or defined in statutes in at least a few places:
Constitutionality:
The Texas Criminal Court of Appeals in
Ex Parte Jones, 625 SE 3d 118 (Tex. Crim. App. 2021) (unpublished), on a
de novo review, reversed an appellate court finding a revenge porn statute somewhat similar to MN's unconstitutional. The decision is unpublished but the concurrence, which agreed with the majority on the Constitutionality question (i.e., their revenge porn statute was determined to be Constitutional). (Interestingly, the Texas statute requires more confirmation of consent than Minnesota statute, though requires a showing of harm.)
Statute in
Jones:
A person violates this statute
if:
(1) Without the effective consent of the depicted person, the person intentionally
discloses visual material depicting another person with the person’s intimate parts
exposed or engaged in sexual conduct;
(2) The visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) The disclosure of the visual material causes harm to the depicted person; and
(4) The disclosure of the visual material reveals the identity of the depicted person in any manner.31
“‘Intimate parts’ means ‘the naked genitals, pubic area, anus, buttocks, or female
nipple of a person.’”32
Illinois, in
People v. Austin, 155 N.E.3d 439,
cert. denied, 141 S. Ct. 233 (Oct. 5, 2020), applied an intermediate (not strict) scrutiny standard, and found similarly to MN in
Casillas, that privacy is at least as important as free speech. As
one article describes,
The court reinforced its holding that section 11-23.5 is a privacy regulation aimed at protecting purely private information, rebuking Austin’s attempt to argue that once an image is shared, it ceases to be a private matter absent express assurances that it will remain confidential.197 Instead, given the nature of such intimate images as purely private material, the court found there is an implicit duty on the part of the recipient to keep such images private.198 By characterizing the statute as a content-neutral time, place, and manner restriction, the Illinois Supreme Court afforded the privacy interests at stake equal weight to the free speech concerns advanced by the defendant.199
In Indiana, the Constitutionality of the following statute was found Constitutional in
State v. Katz, 179 N.E.3d 431, 439 (Ind. 2022).
Indiana’s revenge porn statute provides:
(d) A person who:
(1) knows or reasonably should know that an individual depicted in an intimate image does not consent to the distribution of the intimate
image; and
(2) distributes the intimate image;
commits distribution of an intimate image, a Class A misdemeanor.
However, the offense is a Level 6 felony if the person has a prior unrelated
conviction under this section.
On a reasonable expectation of privacy:
In
State v. VanBuren, 2018 VT 95, 210 Vt. 293, 214 A.3d 791, the Vermont Supreme Court, in a case in which the current girlfriend of a man posted nudes to his Facebook of his ex, who had sent them to him (after their relationship, for whatever reason). The Vermont Supreme Court held the subject had no expectation of privacy -
but specifically because she and the man were no longer involved when she sent the pic. As
one article describes,
The court reasoned that the Complainant and Coon were not in a relationship when the photos were sent.85 The court does not give a
definition as to what a reasonable expectation of privacy is in this sense, but rather says that “[p]rivacy here clearly does not mean the exclusion of all others, but it does mean the exclusion of everyone but a trusted few.”86 In the court’s eyes, if you’re sending naked photos to someone they must be in the “trusted few” or else you compromise your expectation of privacy in them entirely.
That^ would suggest that even Vermont would find sharing a nude photo only with an intimate group ("a trusted few") would give rise to a reasonable expectation of privacy of that photo.
Note: Vermont statute language at the time:
A person violates this section if he or she knowingly discloses a visual image of an
identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.62
North Carolina has taken this view of a reasonable expectation of privacy and incorporated it into statutory law. In NC, the revenge porn statute (14-190.5A), reasonable expectation of privacy is defined in the language of the statute:
Reasonable expectation of privacy. – When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship.
(
emphasis added)
Again again, it's an undeveloped area, but looking around, it seems a solid position that if you know the subject, received a nude pic within a personal and limited group context, and don't ask for permission to share it, courts may find you had reason to know that there was not consent for dissemination of that image beyond the small personal group, and that the subject had a reasonable expectation of privacy of the image they shared with you/the "trusted few."
Even accepting that "intentionally disseminate" means knowing what the picture contains, it's easy to come up with ridiculous hypotheticals that fall under the law
- Person A posts a photo of themselves to social media with Person B. Unbeknownst to Person A, Person B had a wardrobe malfunction that makes the image fall under the statute's definitions of "intimate".
- Person C, who is not close with Person A or Person B, sends Person D a screenshot of the post, telling Person D to contact Person A to tell them to take the photo down.
Even if you argue Person A does not fall under the statute because the dissemination was not "intentional", Person C is at risk because they did not obtain explicit consent from Person B to do so
No one said anything about explicit consent (though of course the MN Supreme Court alluded to it in footnote 9 ("how hard could it be?") but did not say that it was required, and it is not.
Also see the NC statute referred to above for a potential indicator of the direction of these concepts.
And I disagree that person C is in danger of some crazy insane prosecution going after someone trying to do good. A reasonable response is that C should not have reasonably known that B would not consent to C's actions to try to help B by reaching out to A to take down the photo. And in that example, it's sharing back to the original poster, which, though not (of course) addressed in the statute, can cause no harm bc that person already has the image. Yes, the statute is not perfectly drafted, but let's be reasonable.
Initial clip from Twitter:
Nick Rekieta threatens Aaron with CRIMINAL CHARGES for "harassment" of April, if not others in the polycule, because Aaron revealed the details of the polycule on his show.
REKIETA WANTS AARON JAILED FOR BLOWING THE WHISTLE ON THE POLYCULE!
"...in my opinion, he's gone well beyond the level of harassment. If everybody's noticed, I've only recently started saying ANYTHING, but we have been exceptionally quiet, intentionally so, none of, uh, none of, you know, our lives were geared to be out in the public like this, and um, having this one person routinely say false things over and over and over, and vindictively and viciously do it...."
View attachment 6374113
(
Twitter |
Archive)
Hell hath no fury like a cuck scorned.
?