Disturbing A Meeting Section of Disorderly Conduct Statute Is Facially Unconstitutional Under First Amentment

State v. Hensel, Minn.S.Ct., 9/13/2017.  So far September has been David Stras month up at the Judicial Center.  Elsewhere too, for that matter and a rather destructive one at that.  Last week the Justice delivered a near-fatal blow to the "rule of lenity;" here, the Justice throws out a portion of the disorderly conduct statute, saying that it is facially unconstitutional under the First Amendment.  In doing so the court reverses the court of appeals and draws a dissent from two of three dissenters from the previous week:  Justice G. Barry Anderson and the Chief Justice. 

At the first of two meetings of the Little Falls City Council Ms. Hensel, sitting in the front row, held up signs which displayed dead and deformed children.  The signs, one of which was on her head, obstructed the view of those seated behind her.  Eventually, even though those whose view was obstructed were invited to sit in some chairs that were normally not used during council meetings, the council adjourned prematurely.  At the next meeting Ms. Hensel moved a chair into a sort of DMZ between the public seating area and the dais where the council sat.  She refused multiple requests to return to the general seating area, during which she had words with the city attorney among others.  When she persisted in not moving back to the general seating area an officer escorted her out of the room.

Whereupon the state charged Ms. Hensel under a section of the disorderly conduct statute that says:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

. . .

(2) disturbs an assembly or meeting, not unlawful in its character . . . .

Justice Stras concluded that this statute is "broad and unambiguous, prohibiting any conduct or speech that 'disturbs an assembly or meeting,' whether expressive or not."  Raising one's voice would be enough to violate the statute (as in, say, a heated cross examination or an argument around the dinner table with an unruly child).  After hauling out the dictionaries to define various words in the statute the Justice sums up: 

Combining its component parts, the statute prohibits any activity, whether expressive or not, that “interferes with” or destroys the “tranquility” of any lawful “gathering of people” who share a common purpose or reason for gathering, so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others. Minn. Stat. § 609.72, subd. 1(2). This statute presents us with a “criminal prohibition of alarming breadth.” Stevens, 559 U.S. at 474. It criminalizes a public speech that “criticize[s] various political and racial groups . . . as inimical to the nation’s welfare.” Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). It prohibits an individual from wearing a jacket containing an offensive inscription to a meeting. See Cohen v. California, 403 U.S. 15, 16 (1971). And certainly, it would forbid someone from burning the American flag on a public street. See Texas v. Johnson, 491 U.S. 397, 399 (1989). 

The statute thus facially violates the First Amendment overbreadth doctrine.  The Justice was unwilling to narrow the statute to survive this facial infirmity and so the court wipes it off the books.  Justice B. Barry Anderson, joined by the Chief Justice, wrote in dissent that the statute could be saved by a narrowing construction that only punished conduct and not speech.  

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.

Assisted Suicide Statute is Neither Facially Nor As Applied Unconstitutional

State v. Final Exit Network, Inc., Minn.Ct.App., 12/19/2016.  The Minnesota Supreme Court has construed the assisted suicide statute to permit prosecution for assisting suicide, but not for advising and encouraging suicide.  State v. Melchert-Dinkel.  Someone who wishes to partake of the services that Final Exit Network provide must first survive, so to speak, a vetting process in order to become a "member." The guys at Final Exit will then assign a member an "exit guide" to do such things as direct the member where to purchase the gear that will be needed to effectuate the suicide.  The exit guide rehearses the procedure with the member, attends the procedure and then secrets away the gear.  The exit guide never physically assist the member in ending his or her life.

Melchert-Dinkel said that the state can prosecute someone for speech or conduct that provides another person with what is needed for the person to commit suicide.  The trial court instructed the jury that:

To “assist” means that [Defendant] enabled [D.D.] through either physical conduct or words that were specifically directed at [D.D.] and that the conduct or words enabled [D.D.] to take her own life. One has not “assisted” where one has only expressed a moral viewpoint on suicide or provided mere comfort or support. 

Relying upon Melchert-Dinkel the court of appeals upholds Final Exit's conviction, rejecting both facial and as applied First Amendment challenges to the statute.  

Stalking Statute Prohibiting Repeated Telephone Calls Not Unconstitutional

State v. Hall, Minn.Ct.App., 12/5/2016.  Upset over his water bill, Mr. Hall placed five calls to a town employee in the middle of night.  Upon discovering that the town office wasn't open, and apparently being "old school", Mr. Hall left five voicemail messages, each more vociferous, obscene and hostile.

The state charged Mr. Hall with stalking for "repeatedly making telephone calls, knowing that the conduct would cause the victim to feel frightened, threatened, persecuted, oppressed, or intimidated and, in fact, causes this reaction. See Minn. Stat. § 609.749, subds. 1, 2(4) (2014)."  Mr. Hall said that his voicemails were protected speech under the First Amendment.  Here's how the court described the first call:

Hall’s first voicemail began with complaints about the mistreatment of neighborhood dogs. As the voicemail continues, his tone became increasingly hostile. He says that “this bullsh-t is going to come to an end.” He tells B.R. that she is “done” and that the locals are waiting for someone like him to “step up to the plate and swing the bat.” He adds, “Your bullsh-t is about to end.” He then described rumors about how B.R. was kicked out of her house for being immoral and how her family had killed a man. He says that “things are going to happen around here real quick, real quick, all done.” He ends the voicemail by insulting B.R.’s husband as a “fat mother f-cker.” The first voicemail is 3 minutes and 25 seconds long and includes more than 20 expletives. 

You get the picture.

The court concludes that the stalking statute includes not just making repeated calls but also the content of those calls.  The court then concludes that the statute is neither overbroad on its face nor as applied.  Because the statute includes a knowledge requirement by the actor, and a harm requirement to the victim, "it is highly unlikely that the statute would sweep a substantial number of constitutionally protected communications within its purview."   And, because Mr. Hall's rant included threats his voicemails were not protected speech, but, rather, were "fighting words."

Supreme Court Rejects First Amendment Facial Challenge to Solicitation Statute

State v. Washington-Davis, Minn.S.Ct., 6/29/2016.  Mr. Washington-Davis challenges the statute that criminalizes the promotion of prostitution and the solicitation of individuals to practice prostitution, Minn.Stat. 609.322, subd. 1a(1)-(2) as facially overbroad in violation of the First Amendment.  He also challenged the accomplice liability jury instructions and the sufficiency of the evidence.  The court of appeals had already upheld the convictions, thereby rejecting the constitutional and other claims.  Read about that here.  Chief Justice Gildea also rejects all of these challenges. Here's how the court described the scheme:

The actions forming the basis for Washington-Davis’s convictions occurred between September 2010 and July 2012. During this period, Washington-Davis was involved in a family-operated prostitution scheme that was run out of his uncle’s house in St. Paul. Washington-Davis, his brother, Otis,2 and his uncles were all involved. The men solicited women into prostitution first by pursuing romantic relationships with them. Once each relationship was established, the men would typically tell each woman that she could make a lot of money through prostitution. After luring them into the prostitution scheme, Washington-Davis or one of his family members would take photos of the women and post advertisements depicting the women online, arrange for the women to engage in sex acts for hire at the St. Paul house, drive the women to meet customers on “out-calls” away from the St. Paul house, and keep most, if not all, of the money the women made. Although each woman reported primarily to one family member, the other family members assisted with placing ads and transporting the women to out-calls. This case involves Washington-Davis’s conduct with respect to five women: J.M., B.R., S.A., C.B., and T.B. Four of them (J.M., B.R., S.A., and C.B.) testified at trial.

As he did in the trial court and court of appeals Mr. Washington-Davis said that the statute applies to people who promote or solicit consenting adults to participate in constitutionally protected films or photographs involving sexual contact.  The state countered that the statute does not reach protected First Amendment speech unless there is a showing that such a film or photograph is produced for the purpose of satisfying the actor's sexual impulses.  The Chief concludes that the hiring of adults to perform or pose in a sexually explicit film or photograph is done for the purpose of making a film or photograph and "will not usually violate the statute."  Such hiring - speech - falls under the statute only if the state can show that the purpose in hiring was to sexually gratify the performers. The court leaves to another day just how to make this differentiation.  

More troubling is that the court doesn't really answer the question whether such hiring is or is not protected speech.  That's because after listing the arguments pro and con the court then assumes that the statute does restrict some protected speech and then moves on to the question whether such restrictions are substantially overbroad "in relation to the statute's plainly legitimate sweep."  Not just substantial but "real."  The court can find no evidence in the record that any protected speech is, in fact, being chilled or likely to be chilled as a result of the promotion and solicitation statute. Whether any film producer is in fact being prevented from soliciting performers for pornographic films is purely speculative on this record.  

On the accomplice liability jury instruction the state conceded that the instruction that the trial court gave was wrong under State v. Milton, 821 N.W.2d 789 (Minn.2012).  The problem was, though, the instruction actually given went beyond what Milton requires because it told the jury that the state had to prove that Mr. Washing-Davis, himself, acted with the specific purpose of either soliciting a specific victim to practice prostitution or promoting the prostitution of a specific individual.  The actual burden is to prove that Mr. Washington-Davis knew that a codefendant planned to commit a crime and intended his actions to further it.

Finally, the court had no difficulty concluding that the state's evidence had been sufficient to uphold the convictions.

"Grooming" Statute is Facially Unconstitutional

State v. Muccio, Minn.Ct.App., 6/20/2016.  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 objective of the statute is to criminalize "grooming," the process "whereby sexual predators engage in sexually explicit conversations with a child and expose the child to pornographic material in an attempt to lower the child's inhibitions and acclimate the child toward a sexual encounter."

The court of appeals agrees with the trial court that this statute is facially overbroad in violation of the First Amendment because it prohibits a substantial amount of protected speech.  The court adopts these examples from the trial court as acts that would violate the statute:

A music video producer creates a video with sexually explicit depictions or lyrics, with the intent to arouse the sexual desire of some person who views or listens to the video, places that video on social media, and a child age 15 or younger sees or hears it. A film producer produces a movie with sex scenes, with the intent to arouse the sexual desire of some person who views the film, makes that movie available on an Internet streaming service, and a child age 15 or younger sees it. A writer of young-adult fiction electronically publishes a book describing a sex scene, with the intent to arouse the sexual desire of any one of the book’s readers, and a child age 15 or younger reads it.

Here's the conclusion of the court of appeals:

Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech and is facially overbroad in violation of the First Amendment. Further, because any attempt to construe the statute constitutionally would require that we rewrite the statute, which would constitute an invasion of the legislative domain and discourage the legislature from drafting a narrowly tailored law, we decline to do so. Finally, the statute is not narrowly drawn to serve the state’s compelling interest in protecting children from sexual abuse and exploitation on the Internet and therefore is an unconstitutional content-based regulation of speech. 

Disorderly Conduct Statute For Disturbing Public Meeting Survives First Amendment Challenge

State v. Hensel, Minn.Ct.App., 1/25/2016.  Ms. Hensel went down to the Little Falls city council meeting.  She kept moving her chair into a kind of DMZ between the front of chairs and the dais where the council members sat.  The first time she did it the public works director moved it back, telling Ms. Hensel that her chair had to stay where it was.  The second time she moved her chair into the DMZ she and the police chief exchanged words, which soon included the city attorney and city council members.  Ms. Hensel offered to compromise by moving her chair part way back from the dais but still in the DMZ.  At that point the police chief removed her from the meeting.

The state charged Ms. Hensel with disorderly conduct for disturbing a public meeting, which is apparently a misdemeanor. She launched a First Amendment facial challenge to the statute, which required her to prove that there were no set of circumstances under which the statute would be valid, that the statute lacks any plainly legitimate sweep, or that a substantial number of its applications are unconstitutional.  The court concluded that Ms. Hensel wasn't able to do that.  The court construes the statute to proscribe only the disturbance of lawful meetings, and only reaches conduct (including speech) that would both be expected to interfere with the ability to conduct a meeting and intended to interfere with that ability.

Promoting Prostitution Crime Survives First Amendment and Over-Breath Challenges

State v. Washington-Davis, Minn.Ct.App., 7/13/2015.  A jury convicted Mr. Washington-Davis of multiple counts of prostitution-related offenses. On appeal, Mr. Washington-Davis said that the statute that criminalizes the solicitation and promotion of prostitution violates the First Amendment and the state constitution counterpart; and that the statute is facially overbroad because it criminalizes protected activity and speech.

On the First Amendment claim, the court of appeals does agree with Mr. Washington-Davis that the statute, Minn.Stat. 609.332, subd. 1a(1)-(2), is content-based regulation of speech.  For instance, the statute prohibits soliciting or inducing an individual to practice prostitution.  The court hauls out the dictionary to see what "solicit" and "induce" mean and decide that the definitions "implicate speech."  Same thing for another prohibited act, "promoting the prostitution of an individual."  Not all content-based regulation of speech if protected by the First Amendment, however. Yelling "Fire!" in a crowded room for instance.  Another is "speech integral to criminal conduct."  The solicitation and inducing going on here is for the criminal enterprise of prostitution so it's outside the protection of the First Amendment.

Mr. Washington-Davis also said that the statute was facially overbroad. He said that the statute criminalizes protected activities like "non-obscene films and photographs that depict sexual penetration or sexual conduct by consenting adults."  The court said, no, that making a film in which actors act out a sex act is for the purpose of making a film and not for the immediate purpose of satisfying sexual impulses which is the kind of act that the statute prohibits. Mr. Washington-Davis also said that the statute criminalized otherwise protected lap dancing.  The court, though, again said, no, that lap dancing as Mr. Washington-Davis defined it, was "lewd" and "lascivious" that is therefore "obscene" conduct that is not protected by the First Amendment.  And, even if lap dancing were not obscene there is no "substantial overbreadth."

Mr. Washington-Davis challenged the sufficiency of the evidence that he intentionally aided his brother and codefendant, Otis Washington.  The court goes through the circumstantial evidence drill required under State v. Ortega, 813 N.W.2d 86 (Minn. 2012) and State v. Silvernail, 831 N.W.2d 594 (Minn. 2013), and concludes that the evidence was sufficient after all.  

The trial court did mess up the accomplice liability instruction by failing to include the Milton language that the jury must find both a defendant's knowledge and  intent in aiding the commission of the offense. However, because there was no objection to this omission review is under plain error. Mr. Washington-Davis could not persuade the court of appeals that the error affected his substantial rights.

The court of appeals affirmed the trial court's ruling on several "prior bad acts" pieces of evidence. The court also vacates a conspiracy count because the other counts of conviction and sentence all took place with the same time frame stated for the conspiracy.  And, the conspiracy and the other counts within the same time period were motivated by the same objective and thus were part of a single behavioral incident.   

Criminal Defamation Statute Is Declared Unconstitutional

State v. Turner, Minn.Ct.App., 5/26/2015.  In a pique of anger at his former girlfriend, C.M., Mr. Turner posted ads on Craigslist which purported to be from C.M. and her minor daughter S.M.  As a result of the contents of these ads, about which the court modestly declines elaboration, a bunch of guys called C.M. and S.M. seeking to have sex with them.  The state charged Mr. Turner with criminal defamation, Minn.Stat. 609.765, subd. 2:

Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.

Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Mr. Turner said that this statute, which dates back to the 1890’s, is overbroad and thus violates the First Amendment and the state constitution’s counterpart.  The state conceded that the statute was overbroad but thought that it could by saved by a narrowing construction.  The court concludes that the statute is overbroad because it does not exempt truthful statements from prosecutions and as applied to matters of public concern does not require the state to prove “actual malice” before imposing liability.  The court also declines the state’s invitation to narrowly construe the statute because to do so would require that the court either write in an “actual malice” mental state or construe the statute to include this mental state.  Such a rewrite, the court said, “would constitute a serious invasion of the legislative domain.”

OFP For Fifty Years For Benefit of Adult Survives Multiple Challenges

In the Matter of:  Vanessa Yolanda Rew, and o/b/o T.C.B. and D.S.B., Minn.S.Ct., 4/30/2014.  Although not a criminal case, this opinion, on review from the court of appeals,  can impact criminal prosecutions simply from the outcome.  The central question presented here was whether a court can issue a fifty (50) year order for protection for the benefit of an adult and her two minor children.  There’s a statute for that, Minn.Stat. 518B.01, subd. 6a.  Justice Stras rejects a number of statutory and constitutional challenges to that fifty year OFP.  As to extending an OFP that long for the benefit of minor children, the court caps its run at age eighteen, when a parent’s authority to act on behalf of a minor child expires.

Court Rejects Establishment Clause Challenge to “Clergy Sexual Conduct” Statute

State v. Wenthe, Minn.S.Ct., 11/6/2013.  This is the “clergy sexual conduct” case in which Mr. Wenthe made both a facial and an as applied constitutional challenge to the statute.  The court of appeals had reversed the conviction, read here for a factual summary and that court’s assessment.  They had done so because the state, despite promises not to do so, had introduced a lot of evidence regarding church doctrine.  The court of appeals concluded that all this evidence invited the jury to convict Mr. Wenthe on the basis of his violation of church doctrine rather than violation of the criminal law.  This amounted to an “as applied” violation of the Establishment Clause.

Chief Justice Gildea reverses the court of appeals, rejecting both facial and as applied challenges.  The court returns the case back to the court of appeals to take up various other trial errors that the court of appeals had not addressed. 

Justices Dietzen and Wright took no part.  Justice G. Barry Anderson concurred in the opinion in order to write about the state’s apparent violation of the agreement not to introduce a bunch of evidence – indeed, the parties had agreed to “stay totally away from” – about church doctrine.  Justice Page dissented, reminding everyone that in the previous Opinion on this subject, State v. Bussmann, 741 N.W.2d 79 (Minn. 2007) he had concluded that the statute was unconstitutional on its face and as applied.  And he still thought so.

Noise Ordinance is Constitutional

State v. McElroy, Minn.Ct.App., 4/8/2013.  Mr. McElroy drives some nice wheels:  a 1984 Monte Carlo cream-soda pop colored low rider with brown anodized rims.  And a nice sound system that you could hear if not a mile away then at least fifty feet.  At 4:00 in the afternoon an officer was directing traffic when Mr. McElroy rolled by; the cop asked Mr. McElroy to turn down the volume, but He kept rolling.  He eventually turned down the volume but not before the cop cited him for violating a Minneapolis noise ordinance.  Mr. McElroy claimed that the ordinance was unconstitutionally vague and overbroad, that the state failed to prove the element of amplification, and that the judge should not have told the jury that it had to reach a verdict.  The court of appeals rejects each of these claims.

The ordinance prohibits blasting your car stereo so loudly that “any person from a distance of fifty (50) feet or more from the vehicle” can hear it.  The court of appeals concludes that this ordinance is neither vague nor overbroad.  It applies to all music and entertainment amplified from a vehicle and is thus content neutral.  And, the state has a legitimate interest in controlling the noise level on streets. 

The court also rejected Mr. McElroy’s evidence sufficiency claim.  It also rejected the jury instruction error under a plain error standard of review.

No Published Supreme Court Criminal Opinions

11/28/2012:  The Supreme Court issued no published criminal opinions today.  The Court did grant further review in one criminal case, State v. Latham, and stayed proceedings pending disposition of Rew v. Bergstrom.

Constitutionality of Statute Which Criminalizes Advising, Encouraging, or Assisting Another to Commit Suicide Under Review by Supreme Court

State v. Melchert-Dinkel, Minn.Ct.App., 7/17/2012, Review Granted, 10/24/2012.  This is the challenge to the statute, Minn.Stat. 609.215.1, which criminalizes advising, encouraging, or assisting another to commit suicide.  This slipped past me back in the Summer but the Minnesota Supreme Court granted review today.  Amicus are also lining up so it’s shaping up to be a big decision.  Here’s how the court of appeals described  the facts:

Mark Drybrough hanged himself in England in 2005, and Nadia Kajouji drowned herself in Canada three years later, both shortly after 46-year-old William Melchert-Dinkel, who knew that Drybrough and Kajouji were contemplating suicide, sent each a series of Internet messages from his home in Faribault, prodding them to kill themselves.  Melchert-Dinkel instructed Drybrough and Kajouji how to commit suicide by hanging, tried to persuade them to hang themselves, and convinced them that he was a distraught young woman who would commit suicide simultaneously with them or shortly afterward.

Mr. Melchert-Dinkel said that the First Amendment protected his internet messages and so the statute was unconstitutional, facially and as-applied.  The court of appeals concluded that the facial challenge failed because the speech here is speech integral to criminal conduct.  In harsh language, the court also rejects the as-applied challenge:

If the First Amendment does not protect a genuine conspiracy to steal someone else’s
property, how can it protect a fraudulent conspiracy to end someone else’s life? We are
confident that the Constitution does not immunize Melchert-Dinkel’s morbid, predatory
behavior simply because it appears in the form of written words.

Court Limits Falsely Reporting Police Misconduct Statute to Defamatory Statements

State v. Crawley, Minn.S.Ct., 8/8/2012.  This comes up from the court of appeals, read here.  Here’s how that post described what happened:

Ms. Crawley filed a report of police misconduct, asserting that an officer forged her signature on a medical release to obtain her medical records.  When a nurse said that she had seen Ms. Crawley sign the release, the state charged her with falsely reporting police misconduct and falsely reporting a crime.  Falsely reporting misconduct is:

Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime . . . .

Ms. Crawley argued that this statute was “viewpoint discrimination” because it only criminalized false statements that criticize police.  The appellate court points out that making a false statement that attempts to absolve a police officer of misconduct would not be punishable under this statute.  That makes prosecution turn on content, which you can’t do.  R.A.V. v. City of St. Paul, 505 U.S. 377, (1992)

The court of appeals concluded that the statute was unconstitutional.  In a 4-3 Opinion, Justice G. Barry Anderson reverses the court of appeals and construes the statute, Minn.Stat. 609.505, subd. 2 narrowly to criminalize defamation, a category of speech not protected by the First Amendment.  The statute is a content-based regulation of speech because prosecution under it depends entirely on what the person says.  The statute punishes “a substantial amount of protected speech in addition to unprotected speech.  The statute is thus facially unconstitutional.  The majority then saves the statute by limiting it to speech that is defamatory:

Under our narrowing construction, we conclude that the only speech reached by section 609.505, subdivision 2, is defamation.14 Because under our limiting construction we require the State to prove that a person, in order to be convicted under the statute, has informed a peace officer of an act of police misconduct by another officer, the first element of defamation―communication to a third party―is fulfilled. The statute also requires the communicator of the information to know that it is false, fulfilling the second element. Because an act of misconduct is an allegation that affects a peace officer “in his business, trade, profession, office or calling” the requirement for defamation per se is satisfied. See Bahr, 766 N.W.2d at 920 (citation omitted) (internal quotation marks omitted). Finally, requiring the State to prove that the officer receiving the information reasonably understands the information to refer to a specific individual satisfies the fourth element.

Justice Stras, joined by Justices Paul H. Anderson and Meyer, dissented, saying that the statute punishes statements critical of government officials, statements at the “very center” of the First Amendment.

50 Year Extension of OFP Survives Constitutional Challenges in Court of Appeals But Under Review in Supreme Court

In the Matter of:  Vanessa Yoland Rew vs. Bergstrom, Minn.Ct.App., 12/27/2011, review granted, 3/12/12.  Ms. Rew obtained several orders for protection against Mr. Bergstrom as a result of his rather continuous –when he wasn’t in jail or prison – acts against her.  In July 2010, Ms. Rew asked that the current OFP be extended for 50 years, based on Mr. Bergstrom’s chronic bad behavior going back some thirteen years.  Up to this point Mr. Bergstrom had more or less agreed to the issuance and (sometimes) the modest extension of previous OFP’s, but he thought this went too far.  The trial court, however, granted the request and prohibited him from:

(1) committing acts of domestic abuse against respondent or the children; (2) having contact, either direct or indirect, with respondent or the children, “whether in person, with or through other persons, by telephone, letter, electronic means, or in any other way,” except according to the conditions for establishing parenting time; (3) coming within 120 yards of respondent’s residence, place of work, or church; (4) coming within 120 yards of the children’s school or childcare location; (5) coming within 50 yards of respondent or the children in public places; or (6) possessing, shipping, or transporting any firearm.

The Minnesota Supreme Court has accepted review of the case so for now here are the questions that the court of appeals addressed along the path of upholding the fifty year OFP:

1. Was the issuance of a 50-year OFP extension a violation of appellant’s First Amendment right to free speech?

2. Was the issuance of a 50-year OFP extension a violation of appellant’s due process rights?

3. Does the issuance of a 50-year OFP extension based on appellant’s prior OFP violations constitute double jeopardy?

4. Is Minn. Stat. § 518B.01, subd. 6a(b), an unconstitutional ex post facto law when the extension is based on OFP violations that predated enactment of the 50-year extension provision?

5. Did the district court err in ruling that Minn. Stat. § 518B.01, subd. 6a(b), does not require a showing of abuse?