Minnesota’s Nudification Law Raises Serious First Amendment Concerns

A Minnesota law risks pushing AI image generation out of the state.

On Saturday, Minnesota will impose penalties on companies that provide technology for artificial intelligence-generated images of an individual’s “intimate parts.” Although legislators might have intended the law, HF 1606, to crack down on nonconsensual AI-generated intimate deepfakes, the law has serious First Amendment problems.

Elon Musk’s xAI filed a lawsuit challenging its constitutionality. While it is impossible to predict the outcome of such challenges with certainty, xAI has raised strong objections that likely will give the court good reason to carefully scrutinize HF 1606.

The law prohibits companies from allowing their technology to be used for “nudification,” which it defines 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” and “the altered or generated image or video is so realistic that a reasonable person would believe that the intimate part belongs to the identifiable individual.” If a technology is used for nudification, the company faces an action from the state Attorney General seeking up to $500,000 per image, as well as a lawsuit from the subject of the image. HF 1606 has five primary First Amendment problems.

First, the law broadly applies even to images created with the subject’s consent. Minnesota’s law would not be the first to address intimate images, including those generated by artificial intelligence. All states have passed nonconsensual pornography laws, and last year Congress passed the TAKE IT DOWN Act, which requires service providers to remove nonconsensual pornography within 48 hours of a request. But those laws are limited to nonconsensual publication. Minnesota’s law, in contrast, applies regardless of whether the subject of the image consented. “Liability does not depend on whether the person depicted objected to the image, welcomed it, or even made it personally,” xAI wrote in its complaint. “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’s text draws no distinction among them.”

Second, HF 1606 penalizes companies even if they attempt to prevent nudification. The law is “strict liability,” meaning that it applies regardless of the technology company’s state of mind or the steps that the company took to try to prevent people from using the technology to generate intimate images. So even if a company had a rigorous program designed to block the creation of the images and a user circumvented it, that company would face a $500,000 fine per image.

Third, the law applies to a broad range of images. It defines “intimate part” as “the primary genital area, groin, inner thigh, buttocks, or breast of a human being.” As xAI wrote in its brief, the law “bans ordinary depictions of men without shirts, people in shorts or swimsuits, and other body parts routinely displayed in public—far beyond what an ordinary person would consider ‘nudification.’”

Fourth, unlike other state attempts at regulating deepfakes, this law does not have an exception for satire. The Supreme Court has long held that the First Amendment protects satirical expression. It is not difficult to imagine a politician seeking to use the law as revenge for a viral image that was clear satire.

Fifth, the law’s proponents fail to justify why they are going after the technology companies rather than the individuals who generate nonconsensual intimate images. Minnesota, like every state, has a law that addresses nonconsensual distribution of intimate images, or “revenge porn.” Most of those laws, including Minnesota’s, include AI-generated deepfakes. And last year’s federal TAKE IT DOWN Act creates a criminal prohibition on nonconsensual images and a 48-hour takedown system (though, as Jess Miers has aptly demonstrated, that law suffers from its own constitutional problems).

For these reasons, xAI has a strong First Amendment case and a reasonable chance of convincing a judge to strike down the law. If xAI does not succeed, Minnesota’s law and others like it would likely discourage companies entirely from offering image generation in those states. Companies would fear that they could not guarantee with absolute certainty that users would not misuse their services, and it is unlikely that they would risk a half-million-dollar fine each time a user circumvented their controls.

---

Jeff Kosseff is a Non-Resident Senior Fellow at The Future of Free Speech and the co-author (with Jacob Mchangama) of the new book The Future of Free Speech: Reversing the Global Decline of Democracy’s Most Essential Freedom (Johns Hopkins University Press, 2026).