Illustration by Samantha Mash
Illustration of Woman Looking at Smartphone
A little over three years ago, a West St. Paul woman decided she’d had enough of the man she’d dated for the previous three months. The final straw, she later wrote in an application for a restraining order, was an incident in which he “put his hands down my pants in a bar full of people.”
But the breakup wasn’t the end of things. Over the following six months, the woman said her ex—a former convict living in St. Paul named Michael Anthony Casillas—harassed her continually with unwanted texts and calls. In June 2017, according to court records, he doubled down, texting out what looks like the dictionary definition of a revenge porn threat: “still have the video lol...can you SAY POST ONLINE lol.”
The woman responded with a sharp text of her own: “Can you say, posting sexual content online without written consent is a prosecutable offense.”
Despite the warning, Casillas proceeded to share an intimate video of the woman with 44 recipients. After the woman went to police, prosecutors in Dakota County charged Casillas with felony nonconsensual dissemination of private sexual images. The state’s 2016 criminal statute was designed to address one of the most distasteful outgrowths of the smartphone era: an epidemic of digital sex shaming. Since its enactment, 329 people have been charged under the statute, with prosecutors racking up 100 convictions.
While Casillas’s actions may have been stupid (and, obviously, appallingly cruel), his next move was a smart one. He hired John Arechigo, a soft-spoken 40-year-old criminal defense lawyer who is a partner at Arechigo & Stokka, a two-man shop in St. Paul.
While DWIs, assaults, and drug cases represent most of his working hours, Arechigo has been building a niche practice battling criminal charges related to online speech.
In 2015, he successfully defended a client, Timothy Turner, who had posted the phone number and names of his ex-girlfriend and her teenage daughter in sexually explicit advertisements on Craigslist. (This action elicited a torrent of vulgar propositions and intimate boudoir images shot from the waist down.) Prosecutors in Isanti County charged Turner with criminal defamation: one of the few laws available at the time to address such behavior. Viewed through the lens of modern First Amendment jurisprudence, that law, last modified in 1963, appeared badly outdated. It criminalized truthful speech as long as the statement was not made with “good motives and for justifiable ends.” Arechigo had little trouble persuading the appeals court to declare it unconstitutional.
As with the Turner case, Arechigo’s strategy with Casillas was straightforward. Rather than defend his client’s conduct, he attacked the law. Following a bench trial (that is, a trial with no jury), a judge convicted Casillas and sentenced him to 23 months in prison. But Casillas got a stay of that sentence while Arechigo took his legal arguments to the Minnesota Court of Appeals.
In December, a three-judge panel vacated the conviction on the grounds that the statute was, as Arechigo argued, unconstitutional. The court held its nose in delivering its opinion, labeling Casillas’s conduct as “abhorrent.”
Unsurprisingly, the criticisms came swiftly. Among those lambasting the decision was Mary Anne Franks, a legal scholar and activist from Florida who helped draft the model language for revenge porn laws in several states (including Minnesota). The court’s decision “denies justice to victims of nonconsensual pornography, misreads First Amendment doctrine, and endangers all privacy laws,” she tweeted.
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How did this happen?
At the heart of the ruling lay the determination that Minnesota’s revenge porn law had been so broadly written that it criminalized some speech that is constitutionally protected. In the main, the law applied what lawyers refer to as a “negligence mens rea” standard, meaning that prosecutors didn’t have to show that Casillas intended to cause harm.
“I knew they were on thin ice with this law,” says Arechigo. “We’re not saying revenge porn itself is protected free speech. We’re saying that the law is unconstitutional because it sweeps up people who don’t have any criminal intent, including people who accidentally disseminate images. But I’m not advocating for anyone’s right to disseminate explicit videos.”
In fact, Arechigo had been sounding the alarms over the law since attending the End Revenge Porn Working Group that helped draft the statute in the first place. State Representative John Lesch had brought Arechigo into the conversation in the wake of the Turner case. But Arechigo says his concerns—and the concerns of others, including the American Civil Liberties Union of Minnesota—went unheeded. In the end, the House of Representatives voted 128–0 in favor of the bill; in the Senate, there were just three dissenters.
“I watched the legislative process and thought, ‘They’ll be back here doing this all over again in three years,’” says Arechigo.
Representative Lesch, the chief author of the bill, isn’t so sure. For one, Dakota County and the Minnesota Attorney General have already petitioned the Minnesota Supreme Court to take another look at the appeals court ruling. As a practical matter, he notes, that means the legislature is unlikely to take up the matter this session. But Lesch says he’s unwilling to modify the statute in the manner suggested by the opinion, which would require the inclusion of a criminal-intent provision.
As it stands now, Lesch says, “A person has a right to post a sex video of their ex, unless the ex can prove it was done maliciously.”
“The court of appeals’ reasoning is that a person has a right to post a sex video of their ex, unless the ex can prove it was done maliciously. That’s a pretty onerous burden,” says Lesch. “You have to have a smoking gun text that says, ‘I’m gonna do this because I’m mad at your for breaking up with me.’”
But what if the Minnesota Supreme Court affirms the court of appeals?
In that event, Lesch says, he might pursue a state constitutional amendment establishing an explicit privacy right. That would set the stage for what he calls a “looming battle between First Amendment purists and privacy purists.”
Marshall Tanick, a veteran Twin Cities attorney who also questioned the constitutionality of Minnesota’s revenge porn law, is skeptical that a constitutional amendment would work. Sure, voters might approve it, but the legislature would still need to come up with language that would withstand First Amendment challenges. That said, Tanick thinks a law that includes an intent-to-do-harm provision probably could work.
But as legal challenges to revenge porn laws across the country produce conflicting rulings, Tanick expects the issue will ultimately wind up before the U.S. Supreme Court. “It may take a few years, but it’s too pervasive of a topic to say there’s nothing we can do,” Tanick ventures.
For the time being, however, prosecutors in Minnesota—and victims of revenge porn—will have few options to seek redress, outside of civil lawsuits.
In Arechigo’s view, maybe that’s for the best. “Obviously, this can be a harmful thing. But from a legal perspective, the Supreme Court has said where speech is causing harm, civil remedies are preferred,” he says. “You don’t necessarily criminalize someone for saying something bad about you.”
The same goes for hate-posting the most intimate images of an ex, or anyone else, for all the world to see. At least for now.
