More than a decade ago, states began enacting laws to prohibit so-called “revenge porn.” Some partners would voluntarily exchange sexual photographs, but after the relationship ended, one of the partners would share the intimate images as a form of revenge. Later, the term “non-consensual pornography” became more common, as the pictures were not always shared by former partners.
Many of the early bills imposed what was effectively a strict liability standard without any scienter requirement. Over time, these bills were modified to include a scienter requirement, and these guardrails were essential to survive strict scrutiny.
While I doubted the constitutionality of early revenge porn bills, I came to the conclusion that the scienter requirement, as well as other guard rails, saved the laws. For example, the Minnesota Supreme Court upheld the state’s revenge porn law in light of this narrow tailoring. That court observed in State v. Casillas (2020):
Second, a defendant must “intentionally” disseminate the image. Minn. Stat. § 617.261, subd. 1. This mens rea requirement means that a defendant must knowingly and voluntarily disseminate a private sexual image; negligent, accidental, or even reckless distributions are not proscribed. This specific intent requirement further narrows the statute and keeps it from “target[ing] broad categories of speech.” Muccio, 890 N.W.2d at 928.
This background helps explain why a new Minnesota law is unconstitutional. This statute is commonly called an AI “Nudification” Ban, but it sweeps far more broadly. It provides in part:
Subd. 2. Nudification prohibited.
(a) A person who owns or controls a website, application, software, program, or other service must not:
(1) allow a user to access, download, or use the website, application, software, program, or other service to nudify an image or video; or
(2) nudify an image or video on behalf of a user.
The statute defines “nudify,” in part, as “an image or video is altered or generated to depict an intimate part not depicted in an original unaltered image or video of an identifiable individual.” The only exemption is when the web site “requires the technical skill of a user to nudify an image or video.” The statute lacks any scienter requirement. The statute also lacks any exemption for images that have artistic, political, medical, or other educational value.
xAI, the maker of Grok, challenged the constitutionality of the ban. The district court denied the TRO and set the case for a preliminary injunction proceeding. That briefing has now completed.
xAI argues (correctly in my view) that the statute’s lack of a scienter requirement renders the law unconstitutional:
The Act then compounds the problem by omitting every limit that might have confined it to addressing the harm the Legislature described. It has no scienter requirement, so liability turns on what a user managed to do rather than on anything the provider knew or could have prevented. It never mentions consent, so a woman who edits a photograph of herself is treated exactly like a stranger who edits her picture.
Minnesota doesn’t really engage that argument, but instead contends that under intermediate scrutiny, there is no scienter requirement. I don’t think this argument works. This statute is content-based, as it triggers liability directly based on the content of the generated image. (This is an argument I have advanced for some time in the 3D-printed gun litigation.) An image generated with people fully-clothed would not be subject to liability. But a picture of a shirtless man wearing speedos could generate liability. The absence of a scienter requirement, in this case, means the statute lacks the requisite narrow tailing. xAI’s brief cites the Minnesota Supreme Court case mentioned above.
xAI recognizes how this tool can be abused, and the brief demonstrates numerous safeguards that Grock has put in place. The PI brief begins:
A state that seeks to guard its citizens against real harms nevertheless must also respect those same citizens’ fundamental rights in the effort. In enacting HF 1606, the trouble is not that Minnesota sought to advance a legitimate interest in prohibiting the dissemination of artificially generated nude images of real people without their consent. xAI does not contest that interest, and it strictly prohibits its users from generating nude or sexualized images of people without their consent. Indeed, xAI has filed suit against users who evade its extensive technological blockers to generate such images in violation of this strict prohibition. The problem is that HF 1606 stretches far beyond the Legislature’s claimed target to hit other, equally important rights protected by the Constitution.
The problem of overbreadth is something Minnesota should be familiar with. More than three decades ago, in R.A.V. v. City of St. Paul, the Supreme Court declared another well-intentioned law from the Land of 10,000 Lakes as a violation of the First Amendment. Justice Scalia observed:
Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.
Much the same can be said about the nudification law. The intentional use of AI for generating nude images of people is reprehensible. but Minnesota has the means to craft a carefully tailored statute to achieve this goal. In the First Amendment context, the court reviews the statute as drafted, and not the statute the lawyers present.
