State v. Zitterkopf

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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ZITTERKOPF
Cite as 317 Neb. 312
State of Nebraska, appellee, v.
William Zitterkopf, appellant.
___ N.W.3d ___
Filed August 9, 2024. 	No. S-23-513.
1. Judgments: Pleadings: Plea in Abatement: Appeal and Error.
Regarding questions of law presented by a motion to quash or plea in
abatement, an appellate court is obligated to reach a conclusion indepen-
dent of the determinations reached by the trial court.
2. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim
of ineffective assistance of trial counsel on direct appeal, an appellate
court determines as a matter of law whether the record conclusively
shows that (1) a defense counsel’s performance was deficient or (2)
a defendant was or was not prejudiced by a defense counsel’s alleged
deficient performance.
5. Constitutional Law: Statutes. Generally, a facial challenge seeks to
void the statute in all contexts for all parties. In contrast, an as-applied
challenge often concedes the statute is constitutional in some of its
applications, but contends it is unconstitutional as applied to the particu-
lar facts of the case.
6. ____: ____. An as-applied challenge does not seek to void the statute
for all purposes, but seeks only to prevent the statute’s application to the
facts before the court.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:31 AM CDT

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
7. ____: ____. In order to prevail upon a First Amendment facial attack to
the constitutionality of a statute, the challenger must show either that
every application of the statute creates an impermissible risk of sup-
pression of ideas or that the statute is “substantially” overbroad, which
requires the court to find a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections of
parties not before the court.
8. Constitutional Law: Statutes: Standing. A party has standing to chal-
lenge a statute as overbroad, even if unaffected by the part that punishes
protected speech, when the party claims that the statute will significantly
compromise the free speech rights of others not before the court.
9. ____: ____: ____. Standing to challenge the constitutionality of a statute
under the federal or state Constitution depends upon whether one is, or
is about to be, adversely affected by the language in question.
10. Constitutional Law: Criminal Law. The parameters of the constitu-
tional right to freedom of speech are the same under both the federal and
the state Constitutions and both mean that government has no power to
restrict expression because of its message, its ideas, its subject matter,
or its content and limit the State’s ability to prosecute certain criminal
offenses when such prosecution entails content control involving pro-
tected speech.
11. Constitutional Law. The free speech protection of the First Amendment
is not limited to the spoken or written word but extends to other expres-
sive conduct, including videos and photographs.
12. ____. The broad protections afforded by the federal and state
Constitutions are not absolute.
13. ____. The general rule against government control over the content of
speech does not apply to certain well-defined and narrowly limited cat-
egories of expression that are unprotected.
14. Constitutional Law: Criminal Law: Libel and Slander: Obscenity.
Categories of content that can be proscribed include libel, obscenity,
incitements to imminent lawlessness, true threats, and fighting words.
15. Constitutional Law: Presumptions. A content-based restriction on
speech is presumptively invalid and subject to strict scrutiny.
16. Constitutional Law. A restriction that is content neutral is subject to an
intermediate level of scrutiny.
17. ____. Government regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or mes-
sage expressed.
18. Constitutional Law: Presumptions: Proof. A content-based restriction
on protected speech is presumptively invalid and subject to strict scru-
tiny, and the State bears the burden to rebut that presumption.

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
19. Constitutional Law: Proof. Strict scrutiny requires the government to
prove that the restriction furthers a compelling interest and is narrowly
tailored to achieve that interest.
20. Constitutional Law: Statutes: Proof. When a party does not claim
that a challenged law has no valid application, a facial challenge must
establish that a substantial number of the law’s applications are uncon-
stitutional in relation to its legitimate sweep. If shown, this substantial
overbreadth invalidates all enforcement of the law. Conversely, the
attack fails if the challenger fails to meet this burden.
21. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
22. ____: ____: ____: ____. An ineffective assistance of counsel claim is
raised on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a determi-
nation of whether the claim can be decided upon the trial record and
(2) a district court later reviewing a petition for postconviction relief to
recognize whether the claim was brought before the appellate court.
23. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel is raised in a direct appeal, the appel-
lant is not required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel.
24. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. The record
is sufficient if it establishes either that trial counsel’s performance was
not deficient, that the appellant will not be able to establish prejudice as
a matter of law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy.
25. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense.
26. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
27. ____: ____. To show prejudice from counsel’s deficient performance,
the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have
been different.
Appeal from the District Court for Scotts Bluff County, Leo
P. Dobrovolny, Judge. Affirmed.
Michael J. Wilson, of Berry Law Firm, for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
William Zitterkopf appeals his conviction in the district
court for Scotts Bluff County for unlawful distribution of an
intimate image in violation of Neb. Rev. Stat. § 28-311.08(3)
(Cum. Supp. 2022). Zitterkopf claims that the district court
erred when it overruled his motion to quash in which he chal-
lenged the constitutionality of § 28-311.08(3) on the basis
that it was overbroad on its face and violated constitutional
guarantees of free speech. Zitterkopf also asserts two claims of
ineffective assistance of trial counsel. Although our reasoning
differs from that of the district court, we affirm Zitterkopf’s
conviction.
II. STATEMENT OF FACTS
In April 2022, the State charged Zitterkopf with one count
of unlawful distribution of an intimate image in violation of
§ 28-311.08(3), which provides, “It shall be unlawful for any
person to knowingly and intentionally distribute or otherwise
make public an image or video of another person recorded in
violation of subsection (2) of this section without that person’s
consent.” Section 28-311.08(2) provides in part,

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
It shall be unlawful for any person to knowingly and
intentionally photograph, film, or otherwise record an
image or video of the intimate area of any other person
without his or her knowledge and consent when his or her
intimate area would not be generally visible to the public
regardless of whether such other person is located in a
public or private place.
The original information also charged one count of tampering
with a witness, but that charge was dismissed prior to trial.
The charges against Zitterkopf arose from allegations that
in June 2021, he had video recorded a sexual encounter with
the victim, L.E., without her knowledge and consent, and
in March 2022, he sent to his ex-wife a screenshot from
the video recording that showed L.E. nude from the waist
down. L.E. and Zitterkopf’s ex-wife were friends, and in the
Zitterkopfs’ divorce proceedings, L.E. had provided an affi-
davit in support of Zitterkopf’s ex-wife. Zitterkopf appealed
the divorce decree in March 2022. When Zitterkopf sent the
screenshot to his ex-wife, he also sent a copy to L.E. with a
message stating that she should confess to the judge that she
lied in her affidavit.
Prior to trial, Zitterkopf filed a motion to withdraw his
plea of not guilty because he “plan[ned] to file a Motion to
Quash on 1 st amendment grounds.” After the court granted
withdrawal of the plea, Zitterkopf filed a motion to quash the
charge under § 28-311.08(3) because, he asserted, the statute
“is unconstitutional on its face and violates the defendant’s
right to Due Process under the United States Constitution.”
After a hearing, the district court overruled Zitterkopf’s
motion to quash. In its order, the court stated that Zitterkopf’s
primary argument was that § 28-311.08(3) “is overbroad,
as it arguably prohibits other protected speech.” The court
characterized Zitterkopf’s challenge as a facial challenge
and stated that Zitterkopf did not claim that the statute had
no valid application but claimed that the statute was over-
broad because, in addition to forbidding speech that is not

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
constitutionally protected, the statute prohibited the exercise
of constitutionally protected speech.
The district court stated that it could invalidate the statute
on its face only if the statute’s overbreadth was substantial,
meaning that it was unconstitutional in a substantial por-
tion of the cases to which it applied. The court found that
§ 28-311.08(3) was not unconstitutional in a substantial por-
tion of the cases to which the statute applied, and it stated
that the “examples given . . . in the defense brief are largely
inapplicable to the factual situation of this statute.” The court
stated that § 28-311.08(3) required a lack of consent both
when the image was created and again when it was distrib-
uted or made public. The court reasoned that the prohibitions
of the statute were not content based because the focus of
the law was to prohibit the making of private images public
without consent. The court stated that the statute did not tar-
get any message or idea that was being conveyed and that it
instead targeted the nonconsensual nature of the disclosure of
the image.
The court stated that as a content-neutral law, § 28-311.08(3)
was subject to an intermediate level of scrutiny, meaning it
“must serve an important or substantial governmental inter-
est unrelated to the suppression of free speech and must not
burden substantially more speech than necessary to further
that interest.” The court further found that the specific speech
in this case was unprotected speech because it was alleged
that Zitterkopf was “seek[ing] to blackmail [the victim] or
influence future testimony given to a court in a divorce pro-
ceeding.” The court concluded that Zitterkopf’s challenge
to § 28-311.08(3) failed whether the challenge was based
on “strict scrutiny, intermediate scrutiny, or simply not pro-
tected speech.”
Zitterkopf thereafter entered a plea of not guilty, and the
matter went to trial in April 2023. Witnesses presented by the
State included L.E., Zitterkopf’s ex-wife, and Andrew Soucie,
a police officer who investigated this matter. L.E. generally

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
testified that she did not know that Zitterkopf was video record-
ing their sexual encounter and that she did not consent to the
recording. She testified that Zitterkopf texted her a screenshot
from the recording, which depicted her undressing, and that
thereafter, Zitterkopf’s ex-wife also texted her the same screen-
shot. Zitterkopf’s ex-wife testified that Zitterkopf sent the
screenshot to her and that she then sent it to L.E. Zitterkopf’s
ex-wife testified that a few days after Zitterkopf sent her the
screenshot, he called her on “FaceTime” and showed her a
video recording that included the screenshot.
Soucie testified regarding his investigation of the inci-
dent. He testified that he took a report from L.E. and that
she reported that she had received a photograph of herself
undressing and that she “was unaware of” the photograph
and that she “was not aware that it was completed” and “did
not give [her] consent.” Soucie was shown the image L.E.
received from Zitterkopf, and he testified that it was the
photograph that L.E. had shown to him when she reported
the incident. Soucie was also shown the image L.E. received
from Zitterkopf’s ex-wife, which displayed a name that was
the same as Zitterkopf’s ex-wife’s first name. Soucie testified
that he was able to identify the person named as Zitterkopf’s
ex-wife. Zitterkopf’s counsel did not object to these portions
of Soucie’s testimony.
The jury found Zitterkopf guilty of unlawful distribution
of an intimate image. The court accepted the verdict and
entered judgment against Zitterkopf. The court later sentenced
Zitterkopf to probation for 3 years.
Zitterkopf appeals his conviction.
III. ASSIGNMENTS OF ERROR
Zitterkopf claims that the district court erred when it over-
ruled his motion to quash and rejected his constitutional chal-
lenge to § 28-311.08(3). He also claims that his trial counsel
provided ineffective assistance when counsel (1) failed to
make a hearsay objection to Soucie’s testimony regarding

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
out-of-court statements made by L.E. to the effect that she
did not consent to the video recording or distribution of the
images and (2) failed to present testimony by Zitterkopf and
by Zitterkopf’s cousin, which testimony Zitterkopf alleges
would have supported a finding that L.E. consented to the
recording.
IV. STANDARDS OF REVIEW
[1,2] Regarding questions of law presented by a motion to
quash or plea in abatement, an appellate court is obligated to
reach a conclusion independent of the determinations reached
by the trial court. State v. Jedlicka, 305 Neb. 52, 938 N.W.2d
854 (2020). The constitutionality of a statute presents a ques-
tion of law, which an appellate court independently reviews.
State v. Garcia, 315 Neb. 74, 994 N.W.2d 610 (2023).
[3,4] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a ques-
tion of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement. State v. Warner, 312 Neb. 116,
977 N.W.2d 904 (2022). In reviewing a claim of ineffective
assistance of trial counsel on direct appeal, an appellate court
determines as a matter of law whether the record conclusively
shows that (1) a defense counsel’s performance was deficient
or (2) a defendant was or was not prejudiced by a defense
counsel’s alleged deficient performance. Id.
V. ANALYSIS
1. District Court Did Not Err When It Rejected
Zitterkopf’s Constitutional Challenge
to § 28-311.08(3) and Overruled
His Motion to Quash
Zitterkopf first claims that the district court erred when it
overruled his motion to quash and rejected his constitutional
challenge to § 28-311.08(3). In our analysis that follows, we

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
look preliminarily at overbreadth and Zitterkopf’s standing, the
applicability of the First Amendment to the expression at issue,
and the conventional First Amendment merits analysis address-
ing protected speech, content, and level of scrutiny—the latter
of which implicates consideration of compelling interest and
narrow tailoring. We conclude that the district court did not
err when it rejected Zitterkopf’s constitutional challenge and
therefore overruled his motion to quash.
[5,6] We have recognized that a constitutional challenge
may be made either as a facial challenge to the statute or as a
challenge to the application of the statute to a specific person
in a specific case. We have described a facial challenge as a
challenge to a statute, asserting that no valid application of the
statute exists because it is unconstitutional on its face. State
v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017). Generally, a
facial challenge seeks to void the statute in all contexts for
all parties. Id. In contrast, an as-applied challenge often con-
cedes the statute is constitutional in some of its applications,
but contends it is unconstitutional as applied to the particular
facts of the case. Id. An as-applied challenge does not seek to
void the statute for all purposes, but seeks only to prevent the
statute’s application to the facts before the court. Id.
[7] In describing a facial challenge based on First Amendment
grounds, we have stated that
in order to prevail upon a First Amendment facial attack
to the constitutionality of a statute, the challenger must
show either that every application of the statute creates
an impermissible risk of suppression of ideas or that the
statute is “substantially” overbroad, which requires the
court to find a realistic danger that the statute itself will
significantly compromise recognized First Amendment
protections of parties not before the court.
State v. Scott, 284 Neb. 703, 715, 824 N.W.2d 668, 682 (2012).
In the present case, Zitterkopf asserted a facial challenge
to § 28-311.08(3). He did not raise an as-applied challenge
and does not argue that § 28-311.08(3) is unconstitutional as

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STATE v. ZITTERKOPF
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applied to his case. In his facial challenge, he does not argue
that every application of § 28-311.08(3) is unconstitutional;
instead, Zitterkopf’s facial challenge to § 28-311.08(3) relies
on an argument that the statute is substantially overbroad.
(a) Overbreadth Challenge and Standing
[8] 	Before 	reviewing 	the 	merits 	of 	Zitterkopf’s 	First
Amendment challenge, we address the State’s argument that
a defendant does not have standing to challenge a statute
based on overbreadth. The State acknowledges that in State
v. Kass, 281 Neb. 892, 900-01, 799 N.W.2d 680, 689 (2011),
we recognized that “a party has standing to challenge a stat-
ute as overbroad, even if unaffected by the part that punishes
protected speech, when the party claims that the statute will
significantly compromise the free speech rights of others not
before the court.” But the State argues that such precedent
was based on federal law and that this court is not required
to interpret standing under state law in the same way that it is
interpreted in federal law. The State urges us to overrule State
v. Kass and related precedent and reject standing to challenge
a statute based on overbreadth.
[9] We have stated as a general matter of standing in crimi-
nal cases that “[s]tanding to challenge the constitutionality
of a statute under the federal or state Constitution depends
upon whether one is, or is about to be, adversely affected by
the language in question” and that a criminal defendant “has
standing to challenge only the statute that was relevant to
the prosecution of his case.” State v. Hibler, 302 Neb. 325,
339, 923 N.W.2d 398, 412 (2019). Zitterkopf was criminally
charged under § 28-311.08(3), which makes the statute clearly
relevant to the prosecution of his case, and therefore, he had
standing to challenge the constitutionality of the statute. The
State’s argument, however, focuses specifically on a First
Amendment overbreadth argument that relies on the applica-
tion of the statute to other persons, rather than its application
to a specific person in a particular case. The State argues that

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STATE v. ZITTERKOPF
Cite as 317 Neb. 312
Zitterkopf and other criminal defendants should be allowed to
challenge a statute only when the challenge is based on the
specific facts of their cases.
As noted above, this court has recognized standing based on
overbreadth. In State v. Kass, we recognized that the rule of
standing based on overbreadth “exists out of ‘concern that the
threat of enforcement of an overbroad law may deter or “chill”
constitutionally protected speech—especially when the over-
broad statute imposes criminal sanctions.’” 281 Neb. at 901,
799 N.W.2d at 689 (quoting Virginia v. Hicks, 539 U.S. 113,
123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003)). Even before State
v. Kass, we described the concerns underlying overbreadth by
stating that
an individual whose own speech or conduct may be pro-
hibited is permitted to challenge an enactment on its face
because it also threatens others not before the court who
desire to engage in legally protected expression but who
may refrain from doing so rather than risk prosecution or
undertake to have the law declared partially invalid
and that the “doctrine is predicated on the sensitive nature of
protected expression and the fear that ‘“persons whose expres-
sion is constitutionally protected may well refrain from exer-
cising their rights for fear of criminal sanctions by a statute
susceptible of application to protected expression.”’” State v.
Hookstra, 263 Neb. 116, 122, 638 N.W.2d 829, 835 (2002)
(quoting New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348,
73 L. Ed. 2d 1113 (1982), quoting Schaumburg v. Citizens for
Better Environ., 444 U.S. 620, 100 S. Ct. 826, 63 L. Ed. 2d
73 (1980)).
The State notes this court’s reliance on federal law in
recognizing overbreadth standing and argues that this court
may depart from federal law regarding standing and refuse
to recognize standing based on overbreadth. However, we
recognize the merit of the reasoning as set forth in our prior
cases, and we conclude that the State’s argument in this case
provides no basis to overrule State v. Kass, 281 Neb. 892, 799

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N.W.2d 680 (2011), and other cases in which we have recog-
nized overbreadth standing.
For completeness, we note that we have recognized that
the issue of standing in an overbreadth challenge is inter-
twined with consideration of the merits of the challenge. We
have stated that “although our prior case law has sometimes
referred to ‘substantial overbreadth’ as an aspect of standing,
it is more properly characterized as a test for determining the
merits of a facial overbreadth claim.” State v. Hookstra, 263
Neb. at 124, 638 N.W.2d at 836. Therefore, we more fully
consider Zitterkopf’s arguments regarding substantial over-
breadth in our review of the merits of Zitterkopf’s challenge
to § 28-311.08(3).
(b) Applicability of First Amendment
[10] The 1st Amendment to the U.S. Constitution, appli-
cable to the states via the 14th Amendment, provides, in
relevant part, that “Congress shall make no law . . . abridg-
ing the freedom of speech . . . .” Similarly, article I, § 5, of
the Nebraska Constitution provides that “[e]very person may
freely speak . . . on all subjects . . . .” We have recognized
that the parameters of the constitutional right to freedom
of speech are the same under both the federal and the state
Constitutions and that both mean that government has no
power to restrict expression because of its message, its ideas,
its subject matter, or its content. See State v. Grant, 310 Neb.
700, 968 N.W.2d 837 (2022). In effect, both limit the State’s
ability to prosecute certain criminal offenses when such pros-
ecution entails content control involving protected speech.
See id.
[11] We note that § 28-311.08(3) targets distributing or
otherwise making public “an image or video,” and it does
not explicitly operate on speech, per se. However, the U.S.
Supreme Court has established that the free speech protection
of the First Amendment “is not limited to ‘the spoken or writ-
ten word,’ but extends to other expressive conduct including

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videos and photographs.” State v. Casillas, 952 N.W.2d 629,
636 (Minn. 2020) (quoting Texas v. Johnson, 491 U.S. 397,
109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)). We therefore
determine that constitutional free speech protections apply to
the distribution of images and videos.
(c) Protected Speech or Unprotected Speech
[12-14] The broad protections afforded by the federal and
state Constitutions, however, are not absolute. State v. Grant,
supra. The general rule against government control over the
content of speech does not apply to certain well-defined and
narrowly limited categories of expression that are unprotected.
See id. Categories of content that can be proscribed include
libel, obscenity, incitements to imminent lawlessness, true
threats, and fighting words. Id.
Courts in other states that have considered First Amendment
challenges to statutes that, like § 28-311.08(3), seek to restrict
nonconsensual dissemination of intimate images have gen-
erally determined that such statutes are not within one of
the established categories of unprotected speech. See, State
v. Casillas, supra (rejecting argument that statute covered
unprotected obscene speech only); State v. VanBuren, 210
Vt. 293, 214 A.3d 791 (2019) (rejecting contention that stat-
ute categorically regulates obscenity). Furthermore, courts in
other states have been reluctant to recognize a new category
of unprotected speech related to nonconsensual distribution
of private sexual or intimate images, absent a determination
by the U.S. Supreme Court that such speech is unprotected
by the First Amendment. See, State v. Katz, 179 N.E.3d 431
(Ind. 2022); State v. Casillas, 952 N.W.2d at 638 (“although
we recognize that developments in both law and society may
merit a reevaluation of privacy interests within the context
of the First Amendment, there is not enough evidence or
established guidance to categorically remove constitutional
protection for speech that constitutes a substantial invasion
of privacy”); People v. Austin, 2019 IL 123910, ¶ 36, 155

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N.E.3d 439, 455, 440 Ill. Dec. 669, 685 (2019) (“we decline
to identify a new categorical first amendment exception when
the United States Supreme Court has not yet addressed the
question”); State v. VanBuren, 210 Vt. at 309, 214 A.3d at
801-02 (“we decline to identify a new categorical exclusion
from the full protections of the First Amendment when the
Supreme Court has not yet addressed the question”).
In the present case, we, like the other state courts cited
above, recognize that there may be reasonable arguments that
the speech prohibited by § 28-311.08(3) should be unpro-
tected. However, we do not find it to be within an estab-
lished category, and we decline to recognize a new category
of unprotected speech when the U.S. Supreme Court has not
done so. To the extent the district court found the speech at
issue to be unprotected, we do not endorse that finding. Given
our analysis recited above, we assume the speech at issue to
be protected by the First Amendment and proceed to analyze
whether § 28-311.08(3) violates constitutional free speech
protections.
(d) Content Based or Content Neutral
[15-17] We have noted that while certain speech is unpro-
tected and therefore may be proscribed without violating the
First Amendment, “it does not follow that speech which is not
proscribable by one of these enumerated categories cannot be
restricted” and that “even a content-based restriction can be
upheld if it satisfies the requisite standard of scrutiny.” State
v. Grant, 310 Neb. 700, 710, 968 N.W.2d 837, 848 (2022).
The level of scrutiny applied to a statute that proscribes
protected speech depends on whether the restriction is based
on the content of the speech. A content-based restriction on
speech is presumptively invalid and subject to strict scru-
tiny. State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). A
restriction that is content neutral is subject to an intermediate
level of scrutiny. See Village of Winslow v. Sheets, 261 Neb.
203, 622 N.W.2d 595 (2001) (citing United States v. O’Brien,

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391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)).
Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed. State v. Grant, supra.
Courts in other states that have considered challenges to
statutes that, like § 28-311.08(3), criminalize distribution of
nonconsensual intimate images have made different determi-
nations regarding whether such statutes are content based. In
State v. Katz, 179 N.E.3d 431, 455 (Ind. 2022), the Supreme
Court of Indiana determined that the statute at issue was
“plainly a content-based restriction” because it “criminalize[d]
the distribution of an ‘intimate image’ without a person’s con-
sent” and defined “intimate image” as depictions of sexual
conduct or of specific body parts including “buttocks, geni-
tals, or the female breast.” The court stated that the statute
made a “facial distinction based on the message because it
define[d] regulated speech by subject matter—sexual activity
and nudity,” and the statute did not “penalize all disclosure of
visual material without another person’s consent, it penalize[d]
only th[at] subset of disclosed images.” Id.
In State v. VanBuren, 210 Vt. 293, 214 A.3d 791 (2019),
the majority applied strict scrutiny but did not explicitly
state that the statute was content based. However, a dissent-
ing judge in State v. VanBuren specifically stated that it was
“clear that the statute criminalizes the distribution of images
based on their content—‘a visual image of an identifiable
person who is nude or who is engaged in sexual conduct,
without his or her consent.’” 210 Vt. at 329, 214 A.3d at 816
(Skoglund, J., dissenting).
By contrast, in People v. Austin, 2019 IL 123910, 155
N.E.3d 439, 440 Ill. Dec. 669 (2019), the Supreme Court of
Illinois determined that the statute at issue was content neu-
tral. The court reasoned that the statute “distinguishe[d] the
dissemination of a sexual image not based on the content of
the image itself but, rather, based on” the consent or lack of
consent of the person depicted in the image, and the court

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noted that the statute did not criminalize “the dissemination of
the very same image obtained and distributed with consent.”
Id. at ¶ 49, 155 N.E.3d at 457, 440 Ill. Dec. at 687.
The Supreme Court of Minnesota in State v. Casillas, 952
N.W.2d 629, 641 (Minn. 2020), stated that it “need not deter-
mine whether [the statute at issue] is content-based or content-
neutral because [it found] that the State ha[d] met its burden
under the more searching strict scrutiny analysis.” The court
therefore assumed the statute was content based, applied strict
scrutiny, and concluded the statute was constitutional.
In the present case, the district court found that § 28-311.08(3)
was content neutral because it focused on the lack of consent,
rather than the content of the image. The district court’s rea-
soning finds support in People v. Austin, supra. We note,
however, that § 28-311.08(3), like the statutes at issue in State
v. Katz, supra, and State v. Vanburen, supra, applies only to
images that depict specifically defined content.
But like the Minnesota court in State v. Casillas, supra, we
determine that we need not decide whether § 28-311.08(3) is
content based, because, as we discuss below, we determine
that the statute survives strict scrutiny. To the extent the dis-
trict court found the speech at issue to be content neutral, we
do not endorse that finding. Given our analysis recited above,
we assume for purposes of this analysis that the speech crimi-
nalized under § 28-311.08(3) is protected speech, as noted
above, and that the statute is content based.
(e) Strict Scrutiny
[18,19] A content-based restriction on protected speech is
presumptively invalid and subject to strict scrutiny, and the
State bears the burden to rebut that presumption. See State v.
Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). Strict scrutiny
requires the government to prove that the restriction furthers
a compelling interest and is narrowly tailored to achieve that
interest. See State ex rel. Bruning v. Gale, 284 Neb. 257, 817
N.W.2d 768 (2012).

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(i) Compelling Interest
The State in this case does not explicitly articulate the com-
pelling interest addressed by § 28-311.08(3) but instead cites
to decisions by courts in other states that found a compelling
interest in statutes prohibiting the nonconsensual dissemina-
tion of private intimate images. See, State v. Katz, 179 N.E.3d
431, 458 (Ind. 2022) (finding compelling interest based on
“potential serious harms that accompany” prohibited conduct
and “substantial invasion of privacy” exhibited by such con-
duct, and State’s “well-recognized authority to safeguard its
citizens’ health and safety”); State v. Casillas, 952 N.W.2d
629, 642 (Minn. 2020) (finding compelling interest based on
“broad and direct threat to [the State’s] citizens’ health and
safety” resulting from conduct criminalized by statute); State
v. VanBuren, 210 Vt. 293, 318, 214 A.3d 791, 808 (2019)
(finding compelling interest based on “relatively low con-
stitutional significance of speech relating to purely private
matters, evidence of potentially severe harm to individuals
arising from nonconsensual publication of intimate depictions
of them, and a litany of analogous restrictions on speech that
are generally viewed as uncontroversial and fully consistent
with the First Amendment”).
We agree with the reasoning of these courts and adopt it
here. As set forth in greater depth by those courts, the State
has a compelling interest in protecting the personal privacy of
its citizens, and the conduct criminalized under § 28-311.08(3)
constitutes a significant invasion of privacy and presents the
potential of significant harm to the victims of such conduct.
Furthermore, speech regarding purely private matters does not
present the level of free speech concern as speech regarding
public matters. We determine that the interest sought to be
addressed by § 28-311.08(3) is compelling.
(ii) Narrowly Tailored
We next consider whether § 28-311.08(3) is narrowly tai-
lored to achieve the compelling interest. The State asserts

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that § 28-311.08(3) is narrowly tailored because the statute
requires a lack of the victim’s consent, both when the image or
video is created and when it is distributed; the statute applies
only to a clearly defined set of images that implicate privacy
concerns; and the statute requires that distribution be done
knowingly and intentionally.
Courts in other states applying a strict scrutiny analysis to
statutes that, like § 28-311.08(3), criminalize nonconsensual
distribution of images have found the statutes to be narrowly
tailored to achieve a compelling interest. See, State v. Katz,
179 N.E.3d at 459 (finding statute narrowly tailored based
on “its many limiting definitions and exceptions,” including
requiring defendant’s knowledge of lack of consent); State v.
Casillas, 952 N.W.2d at 643, 644 (finding statute narrowly
tailored and noting that statute “explicitly defined” the “type
of image that is criminalized,” requirement that defendant
intentionally disseminate image, several enumerated excep-
tions, requirement that defendant act without consent, and that
“statute only encompasses private speech”); State v. VanBuren,
210 Vt. at 323, 214 A.3d at 812 (finding statute narrowly tai-
lored based in part on “limiting [statute] to a confined class of
content” and “a rigorous intent element that encompasses the
nonconsent requirement”).
We note, as Zitterkopf contends, that there are differences
between § 28-311.08(3) and the statutes at issue in other
states. For example, some statutes in other states require an
intent to threaten or to harm the victim, and some statutes pro-
vide specific exclusions to protect free speech concerns, such
as matters of public interest. We also note that some statutes
in other states require a lack of consent to distribution only
and do not necessarily require that an image be created with-
out consent. Nonetheless, we recognize that narrow tailoring
can be achieved in different ways, and we therefore consider
whether § 28-311.08(3) is narrowly tailored based on the ele-
ments that are included in the statute, rather than on elements
that might have been but were not included.

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We determine that § 28-311.08(3) is narrowly tailored to the
compelling interest of protecting individual privacy. The stat-
ute limits its reach to images that show the intimate area of a
person. For purposes of § 28-311.08, the term “intimate area”
is defined in subsection (8)(a) as “the naked or undergarment-
clad genitalia, pubic area, buttocks, or female breast of an
individual.” Section 28-311.08(3) is also narrowly tailored
because it requires a lack of consent by the victim at two lev-
els—when the image or video is created and again when the
image or video is distributed or otherwise made public. Section
28-311.08(3) requires proof that the defendant knew of the
lack of consent to both the creation and the distribution of the
image or video, and it requires proof that the defendant inten-
tionally distributed the image knowing of the victim’s lack of
consent to both the creation and the distribution of the image
or video.
Zitterkopf argues regarding intent that the statute is not
narrowly tailored because it does not require a specific intent
to intimidate, threaten, or harass the victim. But we do not
think that the lack of such an intent element is fatal. The com-
pelling interest behind the statute—protection of individual
privacy interests—does not invariably require an intent to
intimidate, threaten, or harass, and the Legislature could have
determined that the harm of distribution of intimate images is
the same regardless of the defendant’s reason for distribution.
We determine that the statutory provisions that the defendant
intentionally distributed the image knowing the victim did not
consent to either the creation or the distribution of the image
is sufficient for narrow tailoring.
[20] Because Zitterkopf does not argue that § 28-311.08(3)
is unconstitutional in every application and instead asserts
an 	overbreadth 	challenge, 	we 	must 	consider 	whether
§ 28-311.08(3) is substantially overbroad and threatens sig-
nificant protected speech. When a party does not claim that a
challenged law has no valid application, a facial challenge must
establish that a substantial number of the law’s applications

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are unconstitutional in relation to its legitimate sweep. State
v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011). If shown, this
substantial overbreadth invalidates all enforcement of the law.
Id. Conversely, the attack fails if the challenger fails to meet
this burden. Id.
Overbreadth analysis is inherently closely related to the
determination of whether the statute is narrowly tailored to
achieve the State’s compelling interest. The factors noted
above show that § 28-311.08(3) is narrowly tailored to achieve
a compelling interest and that therefore, the legitimate sweep
of the statute survives strict scrutiny.
Zitterkopf argues, however, that § 28-311.08(3) is substan-
tially overbroad because it applies to a substantial number of
fact patterns that are not within the legitimate sweep of the
statute. Zitterkopf contends that § 28-311.08(3) “sweeps in
several legitimate communications, including artistic photogra-
phy, images and video taken or discovered by journalists, and
any number of innocent images and videos taken of nude or
underwear-clad babies and toddlers, which are then shared with
family members.” Brief for appellant at 11.
Without addressing the specifics of all of Zitterkopf’s exam-
ples, we note that it is not entirely clear that all examples meet
the statutory requirements. The examples may present issues
of statutory interpretation, such as how consent requirements
apply to babies and toddlers; whether the knowledge require-
ment applies when an image or video is “discovered,” and
it may or may not be clear whether the image or video was
created with consent; and whether specific images or videos
of intimate areas are matters of public concern. Furthermore,
it is not clear that each of the examples given by Zitterkopf
involves images or videos that are not legitimately within the
scope of the State’s compelling interest in protecting privacy
of the individuals depicted, including individuals under a
certain age or individuals who find themselves involved in a
news story.

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“Invalidation for overbreadth is ‘strong medicine’ that has
been employed ‘sparingly and only as a last resort.’” State v.
Katz, 179 N.E.3d 431, 460 (Ind. 2022) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830
(1973)). The “‘mere fact that one can conceive of some imper-
missible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.’” Id. (quoting City
Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct.
2118, 80 L. Ed. 2d 772 (1984)).
We reject Zitterkopf’s argument that § 28-311.08(3) is sub-
stantially overbroad based on the examples given. To the extent
that some examples provided by Zitterkopf might implicate
First Amendment concerns, such concerns may be addressed
through challenges to the statute as applied in the event the
State prosecutes a case involving such circumstances. But we
do not think that the potential of some questionable applica-
tions of the statute establishes that, at this time, “a substantial
number of the law’s applications are unconstitutional in rela-
tion to its legitimate sweep.” See State v. Kass, 281 Neb. at
900, 799 N.W.2d at 689.
We determine that § 28-311.08(3) is narrowly tailored to
achieve a compelling interest and that therefore, it survives
strict scrutiny under First Amendment analysis. Although our
reasoning differs from that of the district court, we conclude
that the district court did not err when it rejected Zitterkopf’s
constitutional challenge and overruled his motion to quash.
2. Ineffective Assistance of Trial Counsel
Raised by New Counsel on Appeal
[21] Zitterkopf makes two claims of ineffective assistance
of trial counsel. On direct appeal, Zitterkopf has new counsel
who was not his trial counsel. When a defendant’s trial coun-
sel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial coun-
sel’s ineffective performance which is known to the defendant

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or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceed-
ing. State v. Dap, 315 Neb. 466, 997 N.W.2d 363 (2023).
[22,23] An ineffective assistance of counsel claim is raised
on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make
a determination of whether the claim can be decided upon
the trial record and (2) a district court later reviewing a peti-
tion for postconviction relief to recognize whether the claim
was brought before the appellate court. Id. When a claim of
ineffective assistance of counsel is raised in a direct appeal,
the appellant is not required to allege prejudice; however, an
appellant must make specific allegations of the conduct that
he or she claims constitutes deficient performance by trial
counsel. Id.
[24] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. The record is sufficient if it
establishes either that trial counsel’s performance was not defi-
cient, that the appellant will not be able to establish prejudice
as a matter of law, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Id.
[25-27] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that counsel’s performance was deficient and that this defi-
cient performance actually prejudiced the defendant’s defense.
State v. Dap, supra. To show that counsel’s performance was
deficient, the defendant must show counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. Id. To show prejudice from counsel’s deficient
performance, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. Id.

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(a) Claim Of Ineffective Assistance of Counsel
Related to Soucie’s Testimony
is Without Merit
Zitterkopf first claims that his trial counsel’s performance
was deficient because counsel failed to object based on hear-
say to Soucie’s testimony regarding out-of-court statements
made by L.E. to the effect that she did not consent to the video
recording or the distribution of the images. We conclude that
the record on direct appeal shows that Zitterkopf would not be
able to show prejudice as a matter of law in connection with
this claim of ineffective assistance of counsel.
Applying the standards we have recited above to Zitterkopf’s
claim that his trial counsel was ineffective for failing to make
a hearsay objection to Soucie’s testimony, we determine that
the record on direct appeal shows that Zitterkopf would not
be able to establish prejudice as a matter of law. Zitterkopf
would not be able to demonstrate a reasonable probability
that but for counsel’s failure to object to portions of Soucie’s
testimony, the result of the proceeding would have been dif-
ferent. First, it was likely that any such objection would have
been overruled because Soucie’s testimony regarding L.E.’s
statements was offered to explain steps taken in the investiga-
tion of Zitterkopf. See State v. Anthony, 316 Neb. 308, 330,
4 N.W.3d 393, 411 (2024) (“statements made to law enforce-
ment to explain the steps taken in an investigation of a defend-
ant, rather than to prove the truth of the matter asserted, are
generally admissible as nonhearsay so long as the probative
value of the evidence’s nonhearsay purpose is not substantially
outweighed by the danger of unfair prejudice caused by an
impermissible hearsay use of the statements”). Second, L.E.
testified at trial, her testimony was consistent with Soucie’s
testimony regarding her statements to him, her testimony was
subjected to cross-examination, and her testimony supported
elements necessary to convict Zitterkopf.
The record on direct appeal is sufficient for us to deter-
mine that Zitterkopf would not be able to establish that trial

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counsel’s failure to object to Soucie’s testimony would have
prejudiced Zitterkopf as a matter of law, and, therefore, we
reject Zitterkopf’s claim of ineffective assistance of trial
counsel related to Soucie’s testimony.
(b) Claim That Trial Counsel Provided Ineffective
Assistance When Counsel Failed to Present
Testimony Cannot be Reviewed
on Direct Appeal
Zitterkopf’s second claim of ineffective assistance of coun-
sel is that his trial counsel provided ineffective assistance
when counsel failed to present testimony by Zitterkopf and
by Zitterkopf’s cousin, which testimony Zitterkopf alleges
would have supported a finding that L.E. consented to the
video recording. Applying the standards set forth above in
connection with Zitterkopf’s claims of ineffective assistance
of trial counsel, we conclude that the record on direct appeal
is not sufficient to review this claim.
The claim relies on purported testimony by Zitterkopf and
by his cousin that allegedly would have disputed L.E.’s testi-
mony that she did not consent to the video recording. The sub-
stance of the purported testimony is not in the record on direct
appeal, and resolution of this claim could require consideration
of issues such as the substance of the potential testimony, the
effect such testimony might have had on the result of the trial,
and whether counsel’s failure to present such testimony was
part of a reasonable trial strategy.
We determine that the record on direct appeal is not suf-
ficient to review Zitterkopf’s claim of ineffective assistance of
trial counsel related to alleged potential testimony by himself
and by his cousin.
VI. CONCLUSION
Although our reasoning differs, we conclude that the dis-
trict court did not err when it rejected Zitterkopf’s First
Amendment challenge to § 28-311.08(3) and when it there-
fore overruled Zitterkopf’s motion to quash. We further reject

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Zitterkopf’s claim of ineffective assistance of trial counsel
relating to Soucie’s testimony, and we determine that the record
on direct appeal is not sufficient to consider Zitterkopf’s claim
of ineffective assistance of trial counsel regarding potential
testimony by Zitterkopf and by his cousin. We therefore affirm
Zitterkopf’s conviction.
Affirmed.