Supreme Court Overturns Court of Appeals Decision That "Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.S.Ct., 3/8/2017.  Just a couple of weeks ago the court was unable to say whether an adult who has sex with a child has engaged in the “sexual abuse of a minor” under the immigration statutes.  This reluctance seemed to be both to protect defense attorneys from malpractice claims, and to prevent the defendant, who is not a citizen, from being able to take back his guilty plea and perhaps avoid deportation.

This week, the court has no difficulty whatsoever in determining that a much more opaque and complex statute did not violate free speech protections of the First Amendment. In doing so, Chief Justice Gildea reverses the court of appeals which had said that the "grooming" statute was facially unconstitutional.

Ms. Muccio sent a close-up of a female's genitals, a close-up of a female's buttocks covered by a thong, and a female naked from the waist to the neck to a fifteen year old.  Ms. Muccio and the fifteen year old also had sexually explicit conversations and exchanged sexually explicit photographs.  The state charged Ms. Muccio with communication with a minor describing sexual conduct in violation of Minn.Stat. 609.352, subd. 2a(2).  She moved to declare this statute unconstitutional and the trial court granted that motion.  The state brought this appeal.

Here's what the statute says:

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony . . . : engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct. 

The court does conclude that this statute is overbroad because it does regulate some protected speech.  So, the justices reign in just who and what the statute covers.  First, the adult's "engaging" behavior must be directed at a child:

we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.

Non-targeted mass internet communications do not come within the ambit of the statute.  The statute's intent requirement, "with intent to arouse the sexual desire of any person," means just that:  any person and not just the adult or child who are engaging in the communication.  The court more or less just jumps to the conclusion that mass internet communications won't meet that intent requirement.  Whatever protected speech gets swept up in the statute is not substantial enough to invalidate the statue.