When his relationship with a girlfriend ended, Minnesota resident Michael Anthony Casillas used the woman’s cellphone password to access explicit videos of her. He then threatened her, saying he would distribute the images online.

Later, the ex-girlfriend received a message from Casillas that he had sent the content to numerous recipients.

Illegal?

We believe it most certainly is, but the Minnesota Court of Appeals has declared otherwise, setting up yet another debate about a growing and disturbing trend called “revenge porn.”

The phenomenon has grown exponentially in recent years, and usually comes after a relationship goes bad. A spurned partner seeks revenge on the other by posting explicit images on the internet. Although the images may originally have been taken with consent, the posting of those images for all to see is usually done without permission and in a way that embarrasses, degrades or threatens the people in the photos.

Most cases involve images of women.

As reported last month by Minnesota Public Radio, Casillas was sentenced to 23 months in prison after he originally was found guilty of felony non-consensual dissemination of private sexual images; he later appealed, saying his own First Amendment rights had been violated.

MPR reported that the three-judge appeals panel condemned Casillas’ actions, but declared a Minnesota’s statute that relates to revenge porn is too broadly written. According to the judges, the statute lacks a requirement that prosecutors prove an intent to cause harm. Without that, Minnesota’s law violates the U.S. Constitution, the judges ruled.

Minnesota’s law that bans revenge porn was enacted in 2016, making it illegal to disseminate photos depicting sexual content without a person’s consent.

One problem: The First Amendment protects people – newspapers, for instance – who publish photos without a subject’s consent. We, naturally, agree with that constitutional right, since it allows us to provide unfettered coverage of news happenings. But there is a big difference between legitimate news photos in the media – ranging from sports events to fires and floods – and sexually explicit photos published with the intent to harm a person or as part of a blackmail scheme.

Forty-six states have passed laws concerning revenge porn, including North Dakota, but appeals are regularly popping up. Recently in Illinois, an appeal was successfully shot down, since that state’s law focuses on the harm of victims caused by the distribution of material when a person knows, or should have known, that the person in the image does not consent.

Minnesota should appeal the Casillas case via the state Supreme Court. And in lieu of an appeal – or in case it is unsuccessful – the Legislature should reconsider the law and rewrite it in a way that will stand up against any future appeals from the scoundrels who post these lewd, hurtful and life-changing images.