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Judge strikes 'secret sex image' law

A Cass County judge has ruled that a state law barring the secret creation of sexually expressive images is unconstitutional because it's overly broad, outlawing material protected by free-speech rights.

In an opinion released Tuesday, Judge Steven McCullough ruled that the law, passed in 2009 by the North Dakota Legislature, criminalizes nude images that aren't obscene without giving any regard to their potential literary, artistic, political or scientific value.

McCullough also said the statute didn't account for whether the subject of the image had any expectation of privacy. He offered examples: It would be illegal for private investigators to hide while taking photos of a cheating spouse having sex in public or to take photos from around a corner of a person streaking at a public event.

While the state may bar secretly placed recording devices, McCullough said, "the statute, as written, sweeps so broadly as to criminalize a substantial amount of conduct outside of this realm and outside of the legislative intent."

Anoop Singh, a senior at North Dakota State University, challenged the law after he was charged with the misdemeanor, accused of using his cell phone to record multiple videos of a temporary roommate while she was showering naked.

Defense attorney William Kirschner said Singh was pleased by the opinion, which granted his motion to dismiss the case.

"Glad to see the First Amendment still lives," Kirschner said.

Singh, a native of India, plans to return home after graduating with an NDSU computer science degree in the spring, Kirschner said.

Prosecutors are still reviewing the decision and are not yet sure what their next step will be, said Tristan Van de Streek, an assistant Cass County state's attorney.

State's attorneys could appeal, asking the North Dakota Supreme Court to weigh in, or they could file a different criminal charge, Van de Streek said.


The Forum and the Echo Press are Forum Communications Company newspapers.