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Minnesota's "Nudification" Ban Repeats Unconstitutional Errors of Early Revenge Porn Bills

The lack of a scienter requirement renders the content-based ban unconstitutional.

Josh Blackman | 8.18.2026 11:40 PM

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........

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