It is believed to have been the first time the state’s high court addressed the constitutionality of the state law passed in 2019.

According to court records, in 2022, in the midst of divorce proceedings, William Zitterkopf sent his ex-wife a screenshot of another woman taken from a sexually explicit video.

Prosecutors said that in doing so, Zitterkopf had violated a Nebraska law that makes it illegal to share or threaten to share sexual images of another person without their expressed consent.

A jury ultimately agreed, finding him guilty of the unlawful distribution of an intimate image.

Last year, after Scotts Bluff District Judge Leo Dobrovolny sentenced Zitterkopf to three years of probation and 45 days in jail, Zitterkopf appealed.

His attorney, Michael Wilson, argued that the district court had erred by rejecting Zitterkopf’s constitutional challenge of the law on the grounds that it was overbroad on its face and violated constitutional guarantees of free speech.

The Nebraska Attorney General’s Office, on the other side, argued defendants couldn’t even challenge a statute for being overbroad, despite precedent where the court said otherwise.

In Friday’s decision, the Supreme Court said they found no reason to overrule their prior case law.

Justice Lindsey Miller-Lerman said the court, like some other state courts, recognizes that there may be reasonable arguments that the speech prohibited by Nebraska’s law and similar laws in other states should be unprotected.

“However, we do not find it to be within an established category, and we decline to recognize a new category of unprotected speech when the US Supreme Court has not done so,” she wrote.

The court went on to analyze whether the restriction furthered a compelling interest and was narrowly tailored to achieve it, finding that it did.

Miller-Lerman said the state has a compelling interest in protecting the personal privacy of its residents, and the conduct criminalized under the state law constitutes a “significant invasion of privacy and presents the potential of significant harm to the victims of such conduct.”

While Wilson had argued that the statute should have required an intent to intimidate, threaten or harass the victim, the court said the harm was the same regardless.

Wilson also argued that the “revenge porn” law sweeps in several legitimate communications, from images and videos taken or discovered by journalists to innocent photos and videos of nude or underwear-clad babies and toddlers, shared with family members.

Miller-Lerman said the court rejected that argument, too. First Amendment concerns in those cases could be addressed through later challenges if the state prosecutes such a case, she said.