State v. Zitterkopf, 317 Neb. 312

William Zitterkopf was convicted of unlawful distribution of an intimate image under Neb. Rev. Stat. § 28-311.08(3) after sharing a nonconsensual nude image of the victim, L.E., recorded without her knowledge, with his ex-wife.
Zitterkopf challenged the statute’s constitutionality, arguing it was overbroad and violated free speech rights under the First Amendment.
The district court rejected his constitutional arguments, ruling the statute was not substantially overbroad nor content-based, and entered a conviction after jury trial.
On appeal, Zitterkopf also claimed his trial counsel was ineffective for failing to object to certain testimony and for not calling certain witnesses.
The Nebraska Supreme Court independently reviewed the constitutional claims, the sufficiency of the record regarding ineffective assistance, and affirmed the conviction.

Issue	Zitterkopf's Argument	State's Argument	Held
Constitutionality of § 28-311.08(3) as overbroad under First Amendment	Statute is substantially overbroad and suppresses protected speech beyond its purpose	Statute is narrowly tailored, protects privacy, and is not overbroad	Statute survives strict scrutiny; not substantially overbroad
Standing to challenge statute for facial overbreadth	Defendant has standing to challenge even if unaffected, based on impact on others' speech rights	Defendant only has standing for as-applied challenges	Defendant has standing to bring facial overbreadth challenge
Statute as content-based restriction	Statute criminalizes specific content (intimate images), so requires strict scrutiny	Statute is content-neutral, focuses on lack of consent, not subject matter	Court assumes strict scrutiny applies, but statute still passes
Ineffective assistance for failure to object to testimony	Counsel was deficient for not objecting to hearsay statements by officer	No prejudice; testimony merely explained investigation; victim testified directly	No prejudice; claim rejected on record
Ineffective assistance for not calling defense witnesses	Counsel failed to present Zitterkopf and cousin to dispute lack of consent	N/A (argument focused on record sufficiency)	Record insufficient to review; claim not resolved on direct appeal

State v. Jedlicka, 305 Neb. 52 (scope of review on motions to quash)
State v. Garcia, 315 Neb. 74 (review of statute constitutionality is legal question)
State v. Kass, 281 Neb. 892 (standing for First Amendment overbreadth challenges)
State v. Hookstra, 263 Neb. 116 (First Amendment overbreadth analysis and standing)
State v. Grant, 310 Neb. 700 (distinction between content-based and content-neutral restrictions)
Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)