The first Europeans to reach Minnesota were driven by the spirit of exploration. Four hundred years later, the state's leaders labor to inhibit their constituents' exploration.

Minnesota's outright ban on prediction markets got blocked in court before it took effect this month, raising doubts about neighboring Wisconsin's threats to disenfranchise and prosecute voters who make election guesses in prediction markets.

An appeals court refused to block its ban on election "deepfakes," however, reading an unwritten parody exception into the law to find it comports with the First Amendment, at odds with federal courts that invalidated similar laws in California and Hawaii.

The Land of 10,000 Lakes is trying its luck again with a ban on AI "nudification" that doesn't stop at creation and distribution of artificially generated nonconsensual nudity or credit good-faith efforts to stop it, drawing concerns beyond the AI industry.

The Liberty Justice Center filed a friend-of-the-court brief Friday in support of Elon Musk's xAI, which sued to block the law less than two weeks ago, arguing that HF 1606 "prohibits vast quantities of expressive speech that has nothing to do with protecting privacy."

It requires "neither intent, knowledge, nor evidence that an image or video was created or shared with the public in order to trigger strict liability for xAI" — up to $500,000 in fines for every violation, wrote the libertarian public interest law firm, best known for its Supreme Court victory against public sector unions collecting mandatory fees from non-members.

An adult who uses xAI to "change a photograph of themselves or another adult who freely gave consent" triggers the same liability on xAI "as though the service was used to create a naked or sexualized picture of a nonconsenting adult or child," the filing says. 

By contrast, President Trump signed bipartisan legislation last year that criminalizes users for creating "revenge porn," including altered images, rather than holding platforms liable for the misuse of their tools, simply requiring them to remove content from a potential victim within 48 hours of a valid request.

AI-made sunbathing photos cost xAI $500,000 each?

U.S. District Judge Donovan Frank gave the state an early if limited victory in refusing to grant an emergency temporary restraining order before HF 1606 took effect Aug. 1, blaming xAI for waiting nearly three months after Democratic Gov. Tim Walz signed the law and "only three days before the law is set to take effect," which implies "harm is not immediate."

The President Clinton nominee, who manages a reduced caseload because of senior status, scheduled an Aug. 19 emergency hearing on xAI's motion for a preliminary injunction.

Frank ignored Attorney General Keith Ellison's merits arguments in his opposition to an emergency TRO, which conspicuously omit the law's sweeping definition of "intimate part" and its lack of a safe harbor for good-faith efforts to remove nonconsensual nudes.

Minnesota's law doesn't even require conventionally understood nudity to trigger liability, xAI's  complaint emphasized. Its ban on depicting an "inner thigh, buttocks, or breast" would ensnare the company for "benign images depicting individuals in shorts (inner thigh), men without shirts (breast), and competitive swimmers in speedos (buttocks and breast)."

The memorandum accompanying xAI's motion summarizes the law's overinclusivity, treating anyone "who edits a photograph of herself" no different than "a stranger who edits her picture," punishing xAI for "an image seen by no one and deleted at once," and lacking an exception for "genuine artistic, political, satirical, journalistic, scientific, educational, medical, or religious value," while duplicating "narrower statutes that address the same harm."

Ellison quoted xAI's admission that Minnesota has an interest in "curbing the nonconsensual dissemination of artificially generated nude images," but ignored the company's argument that by importing the definition of "intimate part" from a criminal statute on "sexual contact," the law prohibits depictions of "shirtless men, swimsuits, and shorts."

The memorandum includes an AI-generated image that President Trump shared on social media, depicting himself, Vice President J.D. Vance, Secretary of State Marco Rubio, Interior Secretary Doug Burgum and an unidentified, possibly fictional woman lounging in the Reflecting Pool, all wearing sex-specific swimwear.

This is "political satire of a familiar kind," with the president responding to critics of his Reflecting Pool makeover, yet under HF 1606 the image "unlawfully 'nudifies' identifiable individuals because each man’s breast is 'depict[ed]' where it was not depicted before," xAI wrote.

Like Ellison, mainstream media including NPR and its Minnesota affiliate went out of their way to omit the law's sweeping definition of "intimate part," simply highlighting its potential application to satirical images like Trump's Reflecting Pool alteration.

It's not clear why xAI waited so long to challenge the law, but its legal arguments appear to depend in part on June 26 changes to its Acceptable Use Policy, which add to its Jan. 2, 2025 policy's prohibition on "[d]epicting likenesses of persons in a pornographic manner." 

The revised policy also prohibits "[u]ndressing or nudifying real persons, or otherwise altering a real person’s image or likeness to depict them in an intimate or sexual context." 

In its memorandum, xAI said it "strictly prohibits its users from generating nude or sexualized images of people without their consent" — language only present in the Acceptable Use Policy for a month. The company didn't answer queries.

Worse than 'sloppy' federal ban on 'crush videos' struck down by SCOTUS

The Liberty Justice Center has participated in challenges to AI regulation in the name of protecting the public prior to Minnesota's. It supported the Christian satire website The Babylon Bee in its successful challenge to California's ban on "materially deceptive" memes and parodies of elected officials. 

"Regardless of its motivations, Minnesota’s heavy-handed attempt to restrict speech imperils the protected right of millions of Americans to use AI technology to express themselves," its friend-of-the-court brief says.

By targeting AI-created expression, Minnesota is ignoring decades of First Amendment precedents that protect "speech in many different mediums and forms," from outdoor signs and paintings to engravings and even "female buttocks and bare breasts" in R-rated movies shown at a drive-in theater but "visible from a public area," LJC said.

The most pertinent precedent may be the Supreme Court's invalidation of a congressional ban purportedly limited to "crush videos," which depict women "slowly crushing animals to death," that actually prohibited depictions of "animal cruelty," defined so broadly it could ban videos of people fishing, according to the filing.

The Minnesota Legislature was just as "sloppy" as Congress, but the state law is actually "far more egregious" than the federal law, which was limited to depicted conduct that was illegal "where the creation, sale, or possession of the image occurred," LJC said. The AI nudification ban is also enforceable by private litigants, with lucrative financial incentives.

The law is so broad as to be "irrational," exposing xAI to a $500,000 fine if someone depicts themselves as a partially clothed superhero like "Wonder Woman or the Incredible Hulk" and doesn't share it beyond their own computer, the filing said.

It notes the law's sponsor Senator Maye Quade, who also sponsored the election deepfake law, said she "intentional[ly]" left out an exemption for consensual images. The law ignores the "actual reasons why a 'nudified' image or video is so offensive to privacy in the first place."