{"id":159082,"date":"2026-07-31T11:32:31","date_gmt":"2026-07-31T19:32:31","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/07\/31\/the-worst-person-you-know-just-filed-a-good-first-amendment-lawsuit-against-a-very-badly-drafted-nudify-app-ban\/"},"modified":"2026-07-31T11:32:31","modified_gmt":"2026-07-31T19:32:31","slug":"the-worst-person-you-know-just-filed-a-good-first-amendment-lawsuit-against-a-very-badly-drafted-nudify-app-ban","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/07\/31\/the-worst-person-you-know-just-filed-a-good-first-amendment-lawsuit-against-a-very-badly-drafted-nudify-app-ban\/","title":{"rendered":"The Worst Person You Know Just Filed A Good First Amendment Lawsuit Against A Very Badly Drafted Nudify App Ban"},"content":{"rendered":"

There\u2019s been\u00a0a bunch of news this week<\/a>\u00a0regarding\u00a0Minnesota\u2019s new law<\/a>\u00a0that purports to prohibit \u201cnudification\u201d technology, and the fact that xAI has\u00a0sued to have the law blocked<\/a>\u00a0as unconstitutional. A few things need to be said upfront, because it\u2019s very, very easy to just say the tech is terrible, that Elon Musk and Grok are terrible, and that of course Minnesota should ban it. But it\u2019s also possible that, in the rush to attack very problematic apps built by very problematic people, Minnesota drafted a bad law that is ridiculously overbroad and pretty clearly unconstitutional. And\u2026 that is exactly what appears to be the case.<\/p>\n

Let\u2019s start with the basics: apps (mostly powered by various AI tools) that are used to produce modified imagery, especially stripping people of their clothes are\u2026 bad. They should be socially shunned. People using them to objectify or sexualize others are doing bad things, and people should judge those who use those apps accordingly. This is not a defense of those apps. Similarly, Elon Musk\u2019s Grok and its widely promoted use of putting people (including children) in bathing suits definitely deserves social shunning as well. Norms take time to form, and the shunning here is still catching up to the technology.<\/p>\n

But passing a badly drafted, obviously unconstitutional law does not help form those norms. Nor does it punish Elon Musk. Instead, it allows him to act like a First Amendment martyr.<\/p>\n

It\u2019s also worth clearing something up early, because a lot of the coverage has gotten it wrong: this is not a law about child sexual abuse material. CSAM is already quite illegal under both state and federal law, and nothing in HF 1606 is limited to images of minors. Had Minnesota drafted a law narrowly targeting AI-generated CSAM, it might have survived a constitutional challenge. That\u2019s not what it did.<\/p>\n

And if you want to pass a law to ban technology like this, there are rules under the First Amendment. And, in Minnesota, we even know what some of those rules are. After all, a decade ago, the state also\u00a0passed a law<\/a>\u00a0criminalizing the dissemination of \u201cnonconsensual private sexual images.\u201d After some back and forth in the courts, the Minnesota Supreme Court\u00a0finally blessed the law as constitutional<\/a>\u00a0in late 2020, but made it quite clear that the law went right up to the First Amendment line. It first noted that while the state wanted to claim there\u2019s an entirely new category of unprotected speech (in this case, \u201csubstantial invasions of privacy\u201d), the court refused to do so, citing the famed\u00a0US v. Stevens<\/a>\u00a0case (about an attempt to outlaw animal \u201ccrush\u201d videos) in which the Supreme Court made it quite clear that it wasn\u2019t open to creating new categories of unprotected speech:<\/p>\n

\n

The United States Supreme Court has emphatically rejected \u201cfreewheeling\u201d attempts \u201cto declare new categories of speech outside the scope of the First Amendment.\u201d Stevens, 559 U.S. at 472; see also Jorgenson, 946 N.W.2d at 604 (\u201cThe United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech.\u201d). It is possible, however, there are \u201csome categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed.\u201d Stevens, 559 U.S. at 472.<\/em><\/p>\n

To successfully argue for a new unprotected category of speech, the proponent must present \u201cpersuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.\u201d Brown v. Ent. Merchs. Ass\u2019n, 564 U.S. 786, 792 (2011). This is a heavy burden to bear, and the Supreme Court has recently rejected creating new categories of unprotected speech for animal cruelty, Stevens, 559 U.S. at 472, depictions of excessive violence, Brown, 564 U.S. at 791\u201393, and false statements, Alvarez, 567 U.S. at 722\u201323.<\/em><\/p>\n

In this case, we conclude that the State has failed to carry the heavy burden required to provide a basis to establish a new category of unprotected speech.<\/em><\/p>\n<\/blockquote>\n

And yet, the law was still deemed constitutional, but not because it created a new category of unprotected speech, but rather because it passed strict scrutiny, in which the law is\u00a0narrowly tailored<\/em>\u00a0to use \u201cthe least restrictive means<\/em>\u201d of addressing a\u00a0compelling government interest<\/em>. That is the test by which a law can still be deemed viable under the First Amendment, despite suppressing speech. In the case of the nonconsensual imagery bill, the law passed strict scrutiny\u00a0because<\/strong>\u00a0it focused very narrowly on a category of speech that is very likely to cause harm, and put in place a law that was narrowly tailored to\u00a0only<\/em>\u00a0target that speech, and on top of that included clear exemptions for edge cases that likely wouldn\u2019t be harmful.<\/p>\n

Indeed, the court leaned hard on the fact that the law only reached images disseminated without consent, and only when the disseminator knew or reasonably should have known the subject expected privacy. Those two limits \u2014 consent and intent \u2014 are what kept the statute from sweeping in vast amounts of protected speech. Some quotes from the court which list out all the factors necessary to pass strict scrutiny.<\/p>\n

\n

First, the Legislature explicitly defined the type of image that is criminalized\u2026. Furthermore, the image has to be \u201cobtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.\u201d Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the scope of the statute.<\/em><\/p>\n

Second, a defendant must \u201cintentionally\u201d disseminate the image. \u2026 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 \u201ctarget[ing] broad categories of speech.\u201d<\/em><\/p>\n

Third, the statute has seven enumerated exemptions\u2026. The statute allows for private sexual images to be distributed \u201cin the course of seeking or receiving medical or mental health treatment.\u201d Id., subd. 5(3). Advertisers, booksellers, and artists are protected because images \u201cobtained in a commercial setting\u201d for legal purposes fall outside the statute\u2019s reach. Id., subd. 5(4). Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and \u201cexposure[s] in public.\u201d Id., subd. 5(4)\u2013(5).8 Educators and scientists are protected because there is an exemption for private sexual images disseminated for \u201clegitimate scientific research or educational purposes.\u201d Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.<\/em><\/p>\n

Fourth, to be prosecuted under the statute, a disseminator must act without consent\u2026. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute\u2019s scope.<\/em><\/p>\n

Finally, this statute only encompasses private speech\u2026. Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is \u201cat the core of protected First Amendment speech.\u201d<\/em><\/p>\n<\/blockquote>\n

It was all of that combined that allowed the law to pass strict scrutiny \u2014 something that is incredibly difficult to do. Most laws that have to clear strict scrutiny don\u2019t. Here, this law survived with a careful roadmap from the court of how to do so.<\/p>\n

One would think that Minnesota legislators would be aware of this ruling and the clear reasons why the law was deemed to pass strict scrutiny and then\u00a0write an equivalent law with the same elements<\/strong>\u00a0in trying to ban nudify apps.<\/p>\n

But for reasons known only to the Minnesota legislators, they basically ignored every single one of those points.<\/p>\n

Minnesota\u2019s\u00a0anti-nudification tech law<\/a>\u00a0is not limited to non-consensual content. This means, as legal commentator Kathryn Tewson noted, that if she uploaded a picture of herself and asked Grok to put her in a bikini, she could by her own hand, cause Grok to break this law. That\u2026 seems like a very problematic law.<\/p>\n

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And, again, the Minnesota Supreme Court has already told the state pretty much exactly how to make this law constitutional: focus on nonconsensual imagery, narrowly tailor it to just the deeply harmful content, include an intent requirement, and include clear delineated exemptions for things that should be allowed.<\/p>\n

Minnesota legislators did none of that. Indeed, even the definition of \u201cintimate parts\u201d in the law borrows its definition of \u2018intimate parts\u2019 from an earlier statute, covering: \u201cthe primary genital area, groin, inner thigh, buttocks, or breast of a human being\u201d \u2014 not much of which is inherently sexual, let alone harmful. Tewson offers another example: an edit of a Taylor Swift photo that changes the texture of her fishnet stockings to look more like skin. Whatever tool made that edit just violated Minnesota law.<\/p>\n

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This is, by definition, an overly broad, non-narrowly tailored law.<\/p>\n

Another example: last year the TV show South Park did a deepfake parody of Donald Trump, showing a photorealistic version of him wandering naked through the desert, including his \u201cintimate parts.\u201d<\/p>\n

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Under this law, that video could violate HF 1606. That\u2019s not narrowly tailored. That\u2019s not dealing with intent or focused just on truly harmful content.<\/p>\n

One lawyer I spoke to, after reading through the statute, wondered out loud whether the Minnesota legislature had deliberately drafted it in the dumbest way possible just to guarantee a successful challenge. That\u2019s how poorly the law was drafted.<\/p>\n

Of course, no one wants to hear that the law is badly drafted. Lots of people want to ban nudify apps and to yell about how ridiculous it is that Elon Musk has gone to court to challenge this law.<\/p>\n

But\u2026 it\u2019s the sort of thing he should be doing. Otherwise anyone can have Grok put\u00a0themselves\u00a0<\/em>in a bikini and\u2026 Minnesota\u2019s Attorney General can demand $500,000 for each such image created, even when the image was created deliberately, by the person in it, of themselves.<\/p>\n

xAI (now a division of SpaceX) is right to challenge the law, not because nudify apps are a good thing, but because the law is terribly drafted and pretty clearly exceeds what\u2019s allowed under the First Amendment. The complaint itself\u00a0is worth a read<\/a>. For one thing, it explains why xAI last week\u00a0sued one of its own users<\/a>\u00a0for producing CSAM with Grok (which I had found perplexing at the time). It reads a lot like the company wanted a concrete example to put in this filing of how it fights back against those who use Grok in such ways (leaving out, of course, that Elon himself used the app to put himself in a bikini, thereby encouraging others to do the same).<\/p>\n

It also explains why that complaint was focused on triggering the indemnity clause in X\u2019s terms of service, which makes the user liable for any legal costs associated with their use of the product. What Musk is really signalling with that lawsuit is if Minnesota\u2019s AG sues us under this law for your usage of the product, we\u2019re going to sue you to cover our costs (which could include the $500,000 fine for any images created).<\/p>\n

As the lawsuit notes, the law is just terribly written:<\/p>\n

\n

HF 1606 punishes AI platforms that allow users to alter images of real people to depict an \u201cintimate part.\u201d But the statute contains no knowledge, intent, or purpose requirement. It is a strict-liability statute keyed solely to whether a user succeeded in creating a covered image using the AI provider\u2019s platform\u2014regardless of whether the provider prohibits users from using its tool for such a purpose, regardless of how many mitigations the provider has in place, and regardless of how diligently the provider polices such conduct using its tool. There is no safe harbor for good-faith efforts of the provider of general-purpose AI creative tools to avoid harms. Liability attaches even if the depicted persons consented\u2014or created the image themselves\u2014and even if the image is never shared. Liability also attaches even if the image has artistic, scientific, political, satirical, educational, medical, or religious value, and (again) even if the company has deployed near-perfect, state-of-the-art technical controls to prevent the generation of nude images.<\/em><\/p>\n

Additionally, the law\u2019s definition of \u201cintimate part\u201d is exceptionally broad. Although the federal government and various states have enacted statutes that clearly define nudity for the specific context of AI-generated images, Minnesota rejected such a precise definition. Instead, it borrowed the definition of \u201cintimate part\u201d from a criminal sexual-contact statute. That definition was drafted for nonconsensual touching and thus covers the inner thigh, buttocks, or breast of a man or woman, as well as the groin and primary genital area. HF 1606 accordingly bans ordinary depictions of men without shirts, people in shorts or swimsuits, and other body parts routinely displayed in public\u2014far beyond what an ordinary person would consider \u201cnudification.\u201d<\/em><\/p>\n<\/blockquote>\n

Even worse, as the lawsuit states, the bill\u2019s \u201cprincipal sponsor\u201d admitted that the law was designed to apply to\u00a0consensual<\/em>\u00a0imagery:<\/p>\n

\n

A service used by an adult to edit a photograph of him or herself or a consenting individual is covered on the same terms as a service used to create an image of an unwilling stranger. The statute\u2019s text draws no distinction among them. And this was by design. When a staff member of the Senate Judiciary and Public Safety Committee pointed out that the Act\u2019s \u201cprohibition applies to consensual images,\u201d Senator Maye Quade (the bill\u2019s principal sponsor) explained \u201cthat is intentional.\u201d<\/em><\/p>\n<\/blockquote>\n

That is the bill\u2019s main sponsor stating, on the record, that she deliberately chose to leave out one of the very features Minnesota\u2019s own Supreme Court had identified as necessary for a law like this to survive constitutional scrutiny.<\/p>\n

That is legislative malpractice.<\/p>\n

Since the lawsuit was filed, Maye Quade and other legislators have publicly defended the bill:<\/p>\n

\n

\u201cI don\u2019t see this as a free speech issue. This does not regulate content; it does not regulate art. It regulates conduct,\u201d Maye Quade said. \u201cPrompts are not art, and we protect art specifically in this law. It\u2019s pretty audacious to sue to prevent a law that protects children from being turned into child sexual abuse material.\u201d<\/em><\/p>\n<\/blockquote>\n

She\u2019s describing a law she could have written, but didn\u2019t.<\/p>\n

Notice what\u2019s missing from that defense: any explanation of why the consent and intent elements the Minnesota Supreme Court specifically identified as saving the 2016 law were left out of this one. Also, she\u2019s just simply incorrect that the law does not regulate speech. Again, if she simply read what the Minnesota Supreme Court said about the nonconsensual intimate imagery law, it spent pages analyzing the nonconsensual imagery statute \u2014 a law covering\u00a0narrower<\/em>\u00a0material than this one \u2014 as a content-based restriction on speech that had to pass strict scrutiny to survive.<\/p>\n

Similarly, the law does not actually \u201cprotect art.\u201d Its one and only exemption is if the work \u201crequires the technical skill of a user to nudify an image or video.\u201d That\u00a0could<\/em>\u00a0protect\u00a0some<\/em>\u00a0art, but not all. And it defines art only in a case where a level of skill is needed, which itself potentially creates First Amendment issues in defining what is, and what is not art. There is plenty of modern art that people regularly complain takes no \u201ctechnical skill\u201d to create.<\/p>\n

The complaint itself includes some other examples of what would violate the law, including this (gross) AI-generated image that Trump posted of a slimmed down version of himself, some of his cabinet members, and a randomly generated woman in a bikini sitting in a gleaming blue reflecting pool. Under the law, whatever tool was used to generate that image pretty clearly violated Minnesota\u2019s law:<\/p>\n

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In this viral snapshot\u2014which President Trump posted publicly\u2014 President Trump, Vice President J.D. Vance, Secretary of State Marco Rubio, and Secretary of the Interior Doug Burgum all are portrayed shirtless in the Washington Mall\u2019s reflecting pool, along with an unknown (possibly fictitious) woman.19 An \u201cintimate part\u201d (the breast) of at least the President, Vice President, Secretary of the Interior, and the woman are \u201cdepict[ed],\u201d with the Secretary of State also at least arguably included as well. The President posted this image on his personal account, presumably to make light of the public controversy surrounding repairs to the reflecting pool on the National Mall.<\/em><\/p>\n<\/blockquote>\n

Nudify apps are gross. Musk\u2019s encouragement of people to use Grok to de-clothe people is gross. People who use AI tools to \u201cnudify\u201d people are gross. But that doesn\u2019t mean all laws targeting such things are good laws or constitutional.<\/p>\n

In this case, despite having clear instructions from its own Supreme Court on how to write a constitutional law, Minnesota\u2019s legislature deliberately chose to write an unconstitutional one. And thus, this lawsuit is the proper thing for SpaceX\/xAI\/Musk to do.<\/p>\n

Supporting the lawsuit is not supporting Elon or Grok or nudify apps. It\u2019s telling every legislature in the country the same thing: if you want the law to survive, learn to draft it in ways that aren\u2019t unconstitutional.<\/p>\n

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The Worst Person You Know Just Filed A Good First Amendment Lawsuit Against A Very Badly Drafted Nudify App Ban<\/a><\/p>\n

More Law-Related Stories From Techdirt<\/strong>:<\/p>\n

John Oliver Dares Buc-ee\u2019s To Sue Him Over Trademark Infringement<\/a>
Axon Insists Its AI Makes Police Reports Easier. Nothing Suggests It Makes Them Any *Better*<\/a>
Trump Republicans Are Destroying Decades Of Policy Progress On Affordable Broadband<\/a><\/p>\n

The post The Worst Person You Know Just Filed A Good First Amendment Lawsuit Against A Very Badly Drafted Nudify App Ban<\/a> appeared first on Above the Law<\/a>.<\/p>\n

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\n\t\t\t\t\t\t\t(Photo by Apu Gomes\/Getty Images)\t\t\t\t\t\t<\/figcaption><\/figure>\n

There\u2019s been\u00a0a bunch of news this week<\/a>\u00a0regarding\u00a0Minnesota\u2019s new law<\/a>\u00a0that purports to prohibit \u201cnudification\u201d technology, and the fact that xAI has\u00a0sued to have the law blocked<\/a>\u00a0as unconstitutional. A few things need to be said upfront, because it\u2019s very, very easy to just say the tech is terrible, that Elon Musk and Grok are terrible, and that of course Minnesota should ban it. But it\u2019s also possible that, in the rush to attack very problematic apps built by very problematic people, Minnesota drafted a bad law that is ridiculously overbroad and pretty clearly unconstitutional. And\u2026 that is exactly what appears to be the case.<\/p>\n

Let\u2019s start with the basics: apps (mostly powered by various AI tools) that are used to produce modified imagery, especially stripping people of their clothes are\u2026 bad. They should be socially shunned. People using them to objectify or sexualize others are doing bad things, and people should judge those who use those apps accordingly. This is not a defense of those apps. Similarly, Elon Musk\u2019s Grok and its widely promoted use of putting people (including children) in bathing suits definitely deserves social shunning as well. Norms take time to form, and the shunning here is still catching up to the technology.<\/p>\n

But passing a badly drafted, obviously unconstitutional law does not help form those norms. Nor does it punish Elon Musk. Instead, it allows him to act like a First Amendment martyr.<\/p>\n

It\u2019s also worth clearing something up early, because a lot of the coverage has gotten it wrong: this is not a law about child sexual abuse material. CSAM is already quite illegal under both state and federal law, and nothing in HF 1606 is limited to images of minors. Had Minnesota drafted a law narrowly targeting AI-generated CSAM, it might have survived a constitutional challenge. That\u2019s not what it did.<\/p>\n

And if you want to pass a law to ban technology like this, there are rules under the First Amendment. And, in Minnesota, we even know what some of those rules are. After all, a decade ago, the state also\u00a0passed a law<\/a>\u00a0criminalizing the dissemination of \u201cnonconsensual private sexual images.\u201d After some back and forth in the courts, the Minnesota Supreme Court\u00a0finally blessed the law as constitutional<\/a>\u00a0in late 2020, but made it quite clear that the law went right up to the First Amendment line. It first noted that while the state wanted to claim there\u2019s an entirely new category of unprotected speech (in this case, \u201csubstantial invasions of privacy\u201d), the court refused to do so, citing the famed\u00a0US v. Stevens<\/a>\u00a0case (about an attempt to outlaw animal \u201ccrush\u201d videos) in which the Supreme Court made it quite clear that it wasn\u2019t open to creating new categories of unprotected speech:<\/p>\n

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The United States Supreme Court has emphatically rejected \u201cfreewheeling\u201d attempts \u201cto declare new categories of speech outside the scope of the First Amendment.\u201d Stevens, 559 U.S. at 472; see also Jorgenson, 946 N.W.2d at 604 (\u201cThe United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech.\u201d). It is possible, however, there are \u201csome categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed.\u201d Stevens, 559 U.S. at 472.<\/em><\/p>\n

To successfully argue for a new unprotected category of speech, the proponent must present \u201cpersuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.\u201d Brown v. Ent. Merchs. Ass\u2019n, 564 U.S. 786, 792 (2011). This is a heavy burden to bear, and the Supreme Court has recently rejected creating new categories of unprotected speech for animal cruelty, Stevens, 559 U.S. at 472, depictions of excessive violence, Brown, 564 U.S. at 791\u201393, and false statements, Alvarez, 567 U.S. at 722\u201323.<\/em><\/p>\n

In this case, we conclude that the State has failed to carry the heavy burden required to provide a basis to establish a new category of unprotected speech.<\/em><\/p>\n<\/blockquote>\n

And yet, the law was still deemed constitutional, but not because it created a new category of unprotected speech, but rather because it passed strict scrutiny, in which the law is\u00a0narrowly tailored<\/em>\u00a0to use \u201cthe least restrictive means<\/em>\u201d of addressing a\u00a0compelling government interest<\/em>. That is the test by which a law can still be deemed viable under the First Amendment, despite suppressing speech. In the case of the nonconsensual imagery bill, the law passed strict scrutiny\u00a0because<\/strong>\u00a0it focused very narrowly on a category of speech that is very likely to cause harm, and put in place a law that was narrowly tailored to\u00a0only<\/em>\u00a0target that speech, and on top of that included clear exemptions for edge cases that likely wouldn\u2019t be harmful.<\/p>\n

Indeed, the court leaned hard on the fact that the law only reached images disseminated without consent, and only when the disseminator knew or reasonably should have known the subject expected privacy. Those two limits \u2014 consent and intent \u2014 are what kept the statute from sweeping in vast amounts of protected speech. Some quotes from the court which list out all the factors necessary to pass strict scrutiny.<\/p>\n

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First, the Legislature explicitly defined the type of image that is criminalized\u2026. Furthermore, the image has to be \u201cobtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.\u201d Id., subd. 1(3). Images that do not clear each of these hurdles fall outside the scope of the statute.<\/em><\/p>\n

Second, a defendant must \u201cintentionally\u201d disseminate the image. \u2026 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 \u201ctarget[ing] broad categories of speech.\u201d<\/em><\/p>\n

Third, the statute has seven enumerated exemptions\u2026. The statute allows for private sexual images to be distributed \u201cin the course of seeking or receiving medical or mental health treatment.\u201d Id., subd. 5(3). Advertisers, booksellers, and artists are protected because images \u201cobtained in a commercial setting\u201d for legal purposes fall outside the statute\u2019s reach. Id., subd. 5(4). Journalists cannot be prosecuted because there are exemptions for the dissemination of private sexual images that involve matters of public interest and \u201cexposure[s] in public.\u201d Id., subd. 5(4)\u2013(5).8 Educators and scientists are protected because there is an exemption for private sexual images disseminated for \u201clegitimate scientific research or educational purposes.\u201d Id., subd. 5(6). Accordingly, even if protected speech falls within the ambit of subdivision one and a disseminator acted with the requisite mens rea, that person may still be exempt from prosecution under these precise exceptions.<\/em><\/p>\n

Fourth, to be prosecuted under the statute, a disseminator must act without consent\u2026. This provision provides additional protection for commercial advertisements, certain adult films, artistic works, and other creative expression outside the statute\u2019s scope.<\/em><\/p>\n

Finally, this statute only encompasses private speech\u2026. Unlike the overly broad statutes at issue in our recent decisions in In re Welfare of A.J.B. and Jorgenson, this statute covers only private sexual images and does not prohibit speech that is \u201cat the core of protected First Amendment speech.\u201d<\/em><\/p>\n<\/blockquote>\n

It was all of that combined that allowed the law to pass strict scrutiny \u2014 something that is incredibly difficult to do. Most laws that have to clear strict scrutiny don\u2019t. Here, this law survived with a careful roadmap from the court of how to do so.<\/p>\n

One would think that Minnesota legislators would be aware of this ruling and the clear reasons why the law was deemed to pass strict scrutiny and then\u00a0write an equivalent law with the same elements<\/strong>\u00a0in trying to ban nudify apps.<\/p>\n

But for reasons known only to the Minnesota legislators, they basically ignored every single one of those points.<\/p>\n

Minnesota\u2019s\u00a0anti-nudification tech law<\/a>\u00a0is not limited to non-consensual content. This means, as legal commentator Kathryn Tewson noted, that if she uploaded a picture of herself and asked Grok to put her in a bikini, she could by her own hand, cause Grok to break this law. That\u2026 seems like a very problematic law.<\/p>\n

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And, again, the Minnesota Supreme Court has already told the state pretty much exactly how to make this law constitutional: focus on nonconsensual imagery, narrowly tailor it to just the deeply harmful content, include an intent requirement, and include clear delineated exemptions for things that should be allowed.<\/p>\n

Minnesota legislators did none of that. Indeed, even the definition of \u201cintimate parts\u201d in the law borrows its definition of \u2018intimate parts\u2019 from an earlier statute, covering: \u201cthe primary genital area, groin, inner thigh, buttocks, or breast of a human being\u201d \u2014 not much of which is inherently sexual, let alone harmful. Tewson offers another example: an edit of a Taylor Swift photo that changes the texture of her fishnet stockings to look more like skin. Whatever tool made that edit just violated Minnesota law.<\/p>\n

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This is, by definition, an overly broad, non-narrowly tailored law.<\/p>\n

Another example: last year the TV show South Park did a deepfake parody of Donald Trump, showing a photorealistic version of him wandering naked through the desert, including his \u201cintimate parts.\u201d<\/p>\n