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Prosecuting Revenge Porn: Minnesota's Law May Be Unconstitutional

Several attorneys say Minnesota's criminal defamation statute is unconstitutional

Several attorneys say Minnesota's criminal defamation statute is unconstitutional

Minnesota's criminal defamation law is commonly used to prosecute "revenge porn" cases where jilted ex-lovers post embarrassing sex tapes online to shame their former partners.

A group of lawyers say the law, first enacted in 1963, needs to be updated because it's unconstitutional.

See also: Man Charged in St. Paul's Fifth "Revenge Porn" Case in Last Four Years

They argue the law leaves out a lot of the essential free speech protections that should be standard across America.

For instance, if what you said or wrote is true, that's not enough to get you cleared of a criminal defamation charge. The law states it has to be true and "communicated with good motives and for justifiable ends."

"It doesn't define truth as an absolute defense," says John Arechigo, a lawyer leading the charge trying to get the law ruled unconstitutional. "So in theory, the statute could be used to punish true speech."

There's also no provision protecting personal opinion or comment on public officials, and it contains no requirement of "actual malice," all critical and widely accepted First Amendment protections.

Two weeks ago Arechigo argued his case at the Minnesota Court of Appeals, with UCLA law professor and free speech law expert Eugene Volokh joining the appeal by authoring a supporting brief.

Arechigo's client is a man who posted his ex-girlfriend's and ex-girlfriend's daughter's phone numbers in the Craigslist personals section, hoping, as Arechigo puts it, "to attract a male response."

The man was charged under the criminal defamation statute, just like the creep who was charged in St. Paul last week for posting three secretly recorded videos of him having sex with his ex-wife.

When we pressed Interim St. Paul City Attorney Laura Pietan on whether she felt comfortable using the state's 52-year-old defamation law to prosecute something that happened on the internet, she said she wouldn't have filed the charges if she wasn't comfortable with the law. Later she followed up in an email:

"In the current case, the City of Saint Paul is using the tools that the legislature gave to us. We are aware of the challenge to the statute and await the Court of Appeals decision."

There are more local lawyers lining up in support of Arechigo's case. Burnsville lawyer Dennis Casey confirmed he supports Arechigo's position and has a client he's currently defending against a criminal defamation charge, although he wouldn't go on the record for this story.

"We're right with [Arechigo] and everything he's arguing," says Robert Ambrose, another local criminal defense lawyer. "It's an old law, enacted in 1963. Since then there's been a lot that's happened with First Amendment rights, but not a lot has changed with the law."

Wisconsin, which has a criminal defamation law, passed a separate revenge porn law last year. North Dakota is considering a revenge porn law this year.

"We certainly don't want people out there doing this stuff -- throwing out the sex tapes or posting photos of exes -- that type of stuff should be prohibited, but it can't necessarily be punished under this statute," says Arechigo. "I think we need something new that covers these revenge porn cases, especially with all the postings on social media. This is the only thing out there that's kind of close, so the state's trying to make it fit."

The downside of not passing a revenge porn law can be seen in the case of John Lind, coffee masturbater. He managed to escape felony charges after admitting he ejaculated into his co-worker's coffee on multiple occasions because the law didn't technically cover that bizarre crime.

Does Minnesota want to risk letting another creep walk?

Send news tips to Ben Johnson.