{"slug": "judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to", "title": "Judge: Losing Your First Amendment Rights Is No Longer “Irreparable” If You Take Almost Three Months To Sue", "summary": "A federal judge ruled that Elon Musk's xAI waited too long to challenge Minnesota's anti-nudify law, saying the delay of nearly three months undermines claims of irreparable harm to First Amendment rights. The law, which criminalizes AI-generated nude images without requiring non-consent, has been criticized by legal experts for being overly broad and likely unconstitutional, but the ruling focuses on procedural timing rather than the law's merits.", "body_md": "# Judge: Losing Your First Amendment Rights Is No Longer “Irreparable” If You Take Almost Three Months To Sue\n\n### from the *the-first-amendment-has-a-statute-of-limitations-now?* dept\n\nHere we go again: another case where it’s easy to cheer a court ruling against Elon Musk, and unfortunately easy to miss the much more important underlying point — which the judge clearly did. In July, we wrote about how even as awful as Elon Musk is, and as awful as it was that (with Elon’s encouragement), people were using his Grok AI to undress people (including children), there were real problems with Minnesota’s [anti-nudify law](https://www.revisor.mn.gov/bills/94/2025/0/HF/1606/versions/2/). Legal expert Kathryn Tewson (who is no fan of either AI tools or of Elon Musk) wrote a compelling thread [breaking down all the reasons](https://bsky.app/profile/kathryntewson.bsky.social/post/3mrsnbllmrs2r) that the law was pretty clearly unconstitutional, including just how broadly the law is written. The statute borrows its definition of “intimate parts” straight from Minnesota’s criminal sexual conduct code, meaning it covers the genital area, groin, buttocks, breast… and the inner thigh. While obviously that can include problematic parts, it also is way too broad in covering images that may not be that problematic, especially when combined with the fact that the law does not require the image to be non-consensual.\n\nYes, there is a reasonable argument that the government has a legitimate interest in trying to stop the non-consensual nudification of people. In getting the law passed, the state legislature detailed how these tools are being used to abuse mostly women in ways that are clearly harassing and harmful. But that’s a reason to make sure any law that tries to deal with the problem is written in a manner that will survive First Amendment scrutiny.\n\nIn [my own write-up of Elon’s lawsuit](https://www.techdirt.com/2026/07/30/the-worst-person-you-know-just-filed-a-good-first-amendment-lawsuit-against-a-very-badly-drafted-nudify-app-ban/), I noted that the Minnesota Supreme Court had already given a very clear roadmap to the state legislature on how to write a law that would pass strict scrutiny. That’s because a decade ago, Minnesota tried to pass a similar law regarding the sharing of non-consensual intimate imagery. That law was challenged, and eventually was found to be constitutional, but only after the Minnesota Supreme Court [did a detailed breakdown](https://www.courthousenews.com/wp-content/uploads/2020/12/mn-revenge.pdf) of why it passed strict scrutiny, highlighting that it was carefully bounded, required intentionality by the sharer, required that the sharing be non-consensual, included many clear exemptions for obviously protected speech like journalism, and only focused on “private speech.”\n\nThe Minnesota legislature appeared to ignore *basically every one* of those conditions with this new law. It doesn’t even require the image to be non-consensual, leading Tewson to point out that she could make Elon violate the law by creating an image of *herself* in a bathing suit.\n\nAnd I know, based on the last few times I wrote about this, that some people will say “so what, these apps are bad, Elon’s bad, this law punishes him, so it must be good.” But that is incredibly short-sighted. This case is going to wind its way through higher courts, and eventually someone will remember how the First Amendment works, and find the law unconstitutional, handing Elon a massive win, and leading a bunch of people to (incorrectly and dangerously) think that these apps are fine and approved by the courts.\n\nThat would be really bad.\n\nAs xAI itself explained in a filing in support of its motion, [the law has so many problems](https://storage.courtlistener.com/recap/gov.uscourts.mnd.235231/gov.uscourts.mnd.235231.39.0_1.pdf) which should be addressed, pointing to the Minnesota Supreme Court case I mentioned above:\n\n*The statute also omits every element that would narrowly tailor the regulation to the asserted harm: consent, scienter, dissemination, a safe harbor for providers that police misuse, and any exemption for images of artistic, political, medical, scientific, religious, or educational value. Mot. 15-19. The State cannot disown those omissions: indeed, it successfully defended its revenge-porn statute as narrowly tailored precisely because it contained many of those safeguards. See State v. Casillas, 952 N.W.2d 629, 643 (Minn. 2020) (adopting the State’s argument). Because it lacks such safeguards, HF 1606 reaches shirtless men, images made with consent (including images of the user himself), medical and religious illustrations, political parody, and images never disseminated.*\n\nFor now, though, the district court hasn’t even reached the merits of Elon’s case. It’s fixated on one thing instead: that xAI didn’t challenge the law until shortly before it was scheduled to take effect. I mentioned that when the court [denied the temporary restraining order](https://www.techdirt.com/2026/08/03/judge-to-xai-if-this-law-is-so-urgent-why-did-you-wait-three-months-to-sue/) (TRO), saying that the company shouldn’t have waited so long to file. I figured that during the more thorough preliminary injunction process, the judge would actually engage with the problems in the law.\n\nInstead, the judge, Donovan Frank, [again rejected the preliminary injunction](https://storage.courtlistener.com/recap/gov.uscourts.mnd.235231/gov.uscourts.mnd.235231.54.0_1.pdf)… but again seemed to be really ticked off that xAI waited so long to file the lawsuit. The “discussion” part of the ruling is only a few pages long and leads with the judge complaining about the fact that Elon waited:\n\n*As a threshold matter, the State argues that xAI’s motion for preliminary injunction should be denied for lack of diligence and irreparable harm. “[A] party requesting a preliminary injunction must generally show reasonable diligence.” Benisek v. Lamone, 585 U.S. 155, 159 (2018) (per curiam). The issue of delay is related to the issue of irreparable harm as “it has long been recognized that delay in seeking relief vitiates much of the force of allegations of irreparable harm.”*\n\nBut… that’s misapplying what Benisek actually was about. That was a case regarding gerrymandering, involving a new voting map that was approved in 2011, but which the plaintiffs in the case didn’t challenge until 2017, at a time when changing the map would have thrown the 2018 election into chaos.\n\nThat’s… not this case here. In this case, the law was signed by the Governor on May 7th, and was scheduled to go into effect on August 1st, less than three months later. Yes, xAI didn’t sue until the end of July, but that’s under three months after the law was signed — and still before the law took effect. Three months is a perfectly ordinary amount of time to draft a constitutional challenge to a brand new statute — especially in [a post-Moody world](https://www.techdirt.com/2024/07/01/in-content-moderation-cases-supreme-court-says-try-again-but-makes-it-clear-moderation-deserves-first-amendment-protections/) where challenging statutes is much more complicated. The judge cites another case (Kohl’s) where someone waited sixteen months to sue, but again here it was less than three months.\n\nBy my reading, the judge here is saying that in order to challenge a law, you need to file your complaint almost immediately after a bill was signed into law. There’s basically no limiting principle to the ruling here. If a judge thinks you waited an undefined amount of time that is “too long,” you no longer can get relief.\n\nAlso, there’s a huge difference between the kind of chaos that pulling maps that everyone had been living with for six years right before an election would cause, as compared to just holding off enabling this law to go into effect while the law was reviewed for First Amendment infirmities.\n\nThe judge shrugs off the claims of irreparable harm as well, noting that the fines and technical work that xAI had to do in response to this law are all recoverable. Indeed, the judge treats xAI’s decision to disable the feature in Minnesota — i.e., its compliance with the law — as proof that there’s no ongoing harm. But the main part is the First Amendment bit. Violating First Amendment rights is supposed to be irreparable harm. The judge suggests that anyone losing their First Amendment rights can be somehow balanced against the delay (again under three months) in bringing the suit:\n\n*Importantly, even in the First Amendment context, a court may independently deny a motion for a preliminary injunction when a moving party acts with unreasonable delay.*\n\nBut, uh, the Supreme Court [held exactly the opposite](https://supreme.justia.com/cases/federal/us/427/347/), in a line lawyers cite in basically every First Amendment injunction motion ever filed. Back in 1976 it said:\n\n*The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury*\n\nBut here, the court says here’s some sort of balancing test… and it’s based on how quickly those challenging the law rushed to the courthouse. That’s wrong.\n\nAnd it gets worse, because the delay isn’t the only worrisome point that the court makes here. The judge also suggests that *the state* faces an “irreparable harm” in not getting its duly passed laws enacted (even if they’re unconstitutional, which the judge doesn’t even want to look at here). It points out that the law was “democratically and nearly unanimously” enacted, as if legislatures don’t democratically and nearly unanimously enact unconstitutional laws all the time.\n\nIf the way that any legislature can get to enact a law is doing so “nearly unanimously” why do we even need the courts to review whether or not they’re constitutional in the first place? Lots of nearly unanimously approved laws are eventually tossed out as unconstitutional. Yet, here, the court suggests doing so somehow creates an “irreparable harm” to the state of Minnesota itself.\n\nI want to repeat here, because it’s important, none of this suggests that Elon Musk is doing the right thing at all. It’s just pointing out that Minnesota’s law is way too broad and that will have vastly negative consequences for the First Amendment. But rather than recognizing that and saying “let’s review the First Amendment issues on the merits, while halting the enforcement of this law,” the court basically makes up — out of thin air — that waiting two and a half months to challenge the law means that stifling First Amendment rights is no longer an “irreparable harm.”\n\nThat can’t be right.\n\nxAI has already [appealed to the Eighth Circuit](https://storage.courtlistener.com/recap/gov.uscourts.mnd.235231/gov.uscourts.mnd.235231.55.0.pdf), and has [asked the court for a new injunction](https://storage.courtlistener.com/recap/gov.uscourts.mnd.235231/gov.uscourts.mnd.235231.61.0.pdf) while the appeal is pending, though you can kinda tell that it doesn’t expect to get it, and is basically doing this on a pro forma basis because it has to:\n\n*xAI plans to ask the Eighth Circuit to stay section 325E.91 pending appeal. Pursuant to Federal Rule of Appellate Procedure 8(a)(1)(C)—which requires that a request for an injunction pending appeal be made first in the district court—xAI now respectfully seeks an injunction pending that appeal.*\n\nAs always, it’s easy to want to see Elon Musk lose. But there are plenty of actual things he’s doing wrong. We don’t need to cheer for him to lose on a poorly drafted law that will do real damage to everyone else’s First Amendment rights. Let Minnesota go back and rewrite the law following the roadmap laid out regarding the NCII law, and get Musk on the many other potential legal violations he’s engaged in elsewhere.\n\n\tFiled Under: [1st amendment](https://www.techdirt.com/tag/1st-amendment/), [donovan frank](https://www.techdirt.com/tag/donovan-frank/), [elon musk](https://www.techdirt.com/tag/elon-musk/), [grok](https://www.techdirt.com/tag/grok/), [minnesota](https://www.techdirt.com/tag/minnesota/), [nudification](https://www.techdirt.com/tag/nudification/), [nudify](https://www.techdirt.com/tag/nudify/), [strict scrutiny](https://www.techdirt.com/tag/strict-scrutiny/)\n\n\tCompanies: [x](https://www.techdirt.com/company/x/), [xai](https://www.techdirt.com/company/xai/)", "url": "https://wpnews.pro/news/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to", "canonical_source": "https://www.techdirt.com/2026/09/09/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-almost-three-months-to-sue/", "published_at": "2026-09-09 18:12:15+00:00", "updated_at": "2026-09-09 18:42:09.097065+00:00", "lang": "en", "topics": ["ai-policy", "ai-ethics", "generative-ai"], "entities": ["Elon Musk", "xAI", "Minnesota", "Kathryn Tewson", "Grok"], "alternates": {"html": "https://wpnews.pro/news/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to", "markdown": "https://wpnews.pro/news/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to.md", "text": "https://wpnews.pro/news/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to.txt", "jsonld": "https://wpnews.pro/news/judge-losing-your-first-amendment-rights-is-no-longer-irreparable-if-you-take-to.jsonld"}}