Mimesis Law
6 July 2020

Minnesota’s Anti-Sexting Law Violates The First Amendment

June 23, 2016 (Fault Lines) — The “sexting” craze, sending nude photos of one another across digital lines, has led to arrest after arrest of children for the simple offense of doing stupid things with cell phones.  Many states, in an effort to stop child pornography of the sort teens like Comega Copening “spread,” passed laws in an attempt to stop a “sexting epidemic.” The Minnesota Court of Appeals, in a clear signal of “stop the insanity,” found Minnesota’s “sexting statute” unconstitutional because it violated the First Amendment.

“The Legislature tries to criminalize conduct before it’s criminal,” said John Westrick, who represented the defendant in this case. “I understand their desire to protect the children, I really do. But prosecutors need to show intent to commit a crime. It doesn’t fly in this case.”

The conduct in question was child predators “grooming” kids into a sexual encounter by exchanging sexually explicit conversations.  The Minnesota legislature passed a law attempting to curb this behavior over the internet, penalizing the exchange of sexually explicit material with a minor.  Unfortunately, just as the road to perdition is paved with good intentions, the Minnesota legislature’s attempt at curbing sexual predators was paved with overbroad language.

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. (Emphasis added.)

Keep in mind those two bolded words.  They’ll be important later as we discuss how the Minnesota legislature’s bold-faced attempt at criminalizing parents who let their kids watch Game of Thrones went horribly awry, once a father reported his fifteen-year-old son’s lunch lady to the police for a few nude Instagram photos. Krista Ann Muccio is certainly grateful for that bolded portion of the statute, and courts across the country may look to the outcome of an angry father’s actions as persuasive authority for teen “sexting” cases in the future.

The facts are simple.  A dad found sexually explicit photos on his fifteen-year-old child’s iPad*, sent by Muccio, a 43-year-old lunch lady.  After police obtained a search warrant and law enforcement uncovered Muccio and the child exchanged explicit photos and conversations via Instagram’s direct message feature, authorities charged Muccio with one count of “felony communication with a minor describing sexual conduct” and one count of possession of child pornography under Minnesota law.  Muccio challenged the first count as facially overbroad and unconstitutional under the First Amendment, and the State appealed.  Mercifully, Muccio’s trial on possession of child pornography would be stayed pending appeal.

In the eighteen-page opinion penned by Judge Peter Reyes, the Minnesota Court of Appeals found the “felony communication” statute facially overbroad and sentenced it to the grave because of its content-based regulations on speech.  When a statute is a content-based restriction on speech, it must pass a test called “strict scrutiny,” or it is presumptively unconstitutional.  That “strict scrutiny” test means the burden falls on the State to show a very specific rationale why certain forms of speech should lose First Amendment protections.

To satisfy strict scrutiny, the state must show the statute

(1) is justified by a compelling government interest and (2) is narrowly drawn to serve that interest.  The state must specifically identify an actual problem in need of solving, and the curtailment of free speech must be actually necessary to the solution.  In other words, there must be a direct causal link between the restriction imposed and the injury to be prevented…Under the narrowly tailored inquiry, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal (Emphasis added.)

And it was “arouse the sexual desire of any person” that doomed Minnesota’s “felony communication with a minor involving sexual conduct” law to unconstitutionality.  Even though the subdivision involving children was a noble goal, the “any person” language criminalized numerous forms of artistic expression, as recognized by the court of appeals.  According to Judge Reyes, Miley Cyrus and Robin Thicke’s performance of “Blurred Lines,” any episode of “Game of Thrones,” or a fifteen-year-old reading a copy of “Fifty Shades of Grey,” all constituted criminal conduct under Minnesota’s “felony sexual communication law.”  All of the above is protected under the First Amendment, so the Court had no recourse but to declare the law unconstitutional, unless they inclined to rewrite the law from the bench.

That’s exactly what Minnesota asked of the Appellate Court, and Judge Reyes declined, noting the State’s proposed conclusions would require the Court intrude into the “legislative domain and sharply diminish [the legislature’s] incentive to draft a narrowly tailored law in the first place.”

It was an excellent move by Reyes, and a stark reminder some of the judiciary remember their role under Marbury v. Madison and “say what the law is” rather than change statutes as they please to fit a given agenda.  It’s a commendable role, but only partially helps Muccio as she returns for trial on child pornography charges.

The partial victory achieved by Muccio in Minnesota could have impacts on the cases of teens in the future arrested for “sexting.”  If other courts accept this as persuasive authority, maybe our country can return to a world where dumb kids doing dumb things with cell phones get a parental slap on the wrist instead of felony charges and a life on the sex offender registry.

Regardless of the outcome, it’s a good day when a court recognizes a law violating the First Amendment as unconstitutional and pronounces its death sentence.  Hopefully other states will follow suit.

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  • Tom H
    23 June 2016 at 2:48 pm - Reply

    This would be a candidate for success of the week. If there was such a thing.