Justia.com Opinion Summary: A jury found Defendant guilty of falsely reporting an act of police misconduct under Minn. Stat. 609.505, subd. 2 (the statute) based on the fact that Defendant informed a police officer that another officer forged her signature, knowing that the information conveyed was false. The court of appeals reversed, concluding that the statute was unconstitutional because it criminalizes false speech critical of the police but not false speech that favors the police. The Supreme Court reversed, holding (1) the court of appeals erred in finding the statute unconstitutional because it criminalizes only defamatory speech not protected by the First Amendment and because it was within two of the exceptions to the constitutional prohibition against content discrimination in an unprotected category of speech; but (2) because Defendant's conviction under the statute preceded the Court's narrow construction of the statute, due process considerations entitled her to a new trial. Remanded.
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STATE OF MINNESOTA
IN SUPREME COURT
A09-1795
Court of Appeals
Anderson, G. Barry, J.
Dissenting, Stras, Anderson, Paul H.
and Meyer, JJ.
State of Minnesota,
Appellant,
vs.
Filed: August 8, 2012
Office of Appellate Courts
Melissa Jean Crawley,
Respondent.
________________________
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Karin L. Sonneman, Winona County Attorney, Stephanie E. Nuttall, Assistant Winona
County Attorney, Winona, Minnesota, for appellant.
John M. Stuart, Minnesota State Public Defender, St. Paul, Minnesota; and
Scott M. Flaherty, Briggs and Morgan, P.A., Minneapolis, Minnesota, for respondent.
Lori Swanson, Attorney General, John S. Garry, Assistant Attorney General, St. Paul,
Minnesota, for amicus curiae Minnesota Attorney General.
Cort C. Holten, Jeffrey D. Bores, Chestnut Cambronne PA, Minneapolis, Minnesota, for
amicus curiae Minnesota Police and Peace Officers Association.
Teresa Nelson, American Civil Liberties Union of Minnesota, St. Paul, Minnesota; and
Sarah Riskin, Nadege J. Souvenir, Rachel Bowe, Maslon Edelman Borman & Brand,
LLP, Minneapolis, Minnesota, for amicus curiae American Civil Liberties Union.
________________________
1
SYLLABUS
1.
Minnesota Statutes § 609.505, subd. 2 (2010), narrowly construed, makes it
a crime for a person to inform a peace officer, whose responsibilities include
investigating or reporting police misconduct, that another peace officer committed an act
of police misconduct, knowing that the information is false.
2.
Under our narrowing construction, Minn. Stat. § 609.505, subd. 2,
criminalizes defamation, a category of speech not protected by the First Amendment.
3.
Because Crawley was convicted under section 609.505, subdivsion 2,
before our narrowing construction of the statute, due process considerations entitle her to
a new trial.
4.
Minnesota Statutes § 609.505, subd. 2, falls within two of the exceptions to
the constitutional prohibition against content discrimination set forth in R.A.V. v. City of
St. Paul, 505 U.S. 377 (1992).
5.
Under our narrowing construction, Minn. Stat. § 609.505, subd. 2, is
constitutional.
Reversed and remanded.
OPINION
ANDERSON, G. Barry, Justice.
The question presented here is whether a Minnesota statute that prohibits
knowingly false reports of police misconduct violates the First Amendment because it
allows the State to punish some people, but not others, depending on the viewpoint
expressed about the police. A jury found Melissa Jean Crawley guilty of violating the
2
challenged law, Minn. Stat. § 609.505, subd. 2 (2010), based on the fact that she
informed a police officer that another officer forged her signature, knowing that the
information conveyed was false. The court of appeals reversed her conviction after
concluding that section 609.505, subdivision 2, is unconstitutional because it criminalizes
false speech “critical” of the police but not false speech that favors the police. State v.
Crawley, 789 N.W.2d 899, 910 (Minn. App. 2010). Because we narrowly construe
section 609.505, subdivision 2, to criminalize only defamatory speech not protected by
the First Amendment, and because the statute falls within two of the exceptions to the
constitutional prohibition against content discrimination in an unprotected category of
speech, we reverse the court of appeals’ judgment that the statute is unconstitutional.
Because Crawley’s conviction under section 609.505, subdivision 2, preceded our narrow
construction of the statute, due process considerations entitle her to a new trial. We
therefore reverse her conviction and remand for a new trial based on our narrowing
construction of the statute.
On April 17, 2008, Melissa Jean Crawley went to the Winona County Law
Enforcement Center, met with Winona Police Department Sergeant Christopher Nelson,
and informed Nelson that a police officer had forged her signature on a medical release
form at a Winona hospital. Nelson asked Crawley who she thought had forged her
signature. Crawley noted that the form was signed “Melissa Crawley at 0600 hours,” and
informed Nelson that “it has to be a police officer that did that. I don’t sign things and
date them 0600 hours.” The release related to treatment Crawley received at the hospital
for injuries sustained in an assault that Winona police were investigating, and Crawley
3
informed Nelson she thought her signature was forged by “the police officer who
requested the records, whoever was doing the investigation.”
Nelson investigated Crawley’s report. During his investigation, Nelson spoke to a
nurse who told Nelson that she saw Crawley sign the release while Crawley was at the
hospital. The State charged Crawley on April 30, 2008, with falsely reporting an act of
police misconduct, Minn. Stat. § 609.505, subd. 2(a)(2), and falsely reporting a crime,
Minn. Stat. § 609.505, subd. 1 (2010).1 Subdivision 2, the statutory provision at issue in
this appeal, provides:
(a) Whoever informs, or causes information to be communicated to, a peace
officer, whose responsibilities include investigating or reporting police
misconduct, that a peace officer, as defined in section 626.84, subdivision
1, paragraph (c), has committed an act of police misconduct, knowing that
the information is false, is guilty of a crime and may be sentenced as
follows:
(1) up to the maximum provided for a misdemeanor if the false
information does not allege a criminal act; or
(2) up to the maximum provided for a gross misdemeanor if the false
information alleges a criminal act.
(b) The court shall order any person convicted of a violation of this
subdivision to make full restitution of all reasonable expenses incurred in
the investigation of the false allegation unless the court makes a specific
1
Minnesota Statutes § 609.505, subd. 1, provides:
Whoever informs a law enforcement officer that a crime has been
committed or otherwise provides information to an on-duty peace officer,
knowing that the person is a peace officer, regarding the conduct of others,
knowing that it is false and intending that the officer shall act in reliance
upon it, is guilty of a misdemeanor. A person who is convicted a second or
subsequent time under this section is guilty of a gross misdemeanor.
4
written finding that restitution would be inappropriate under the
circumstances. A restitution award may not exceed $3,000.
Crawley moved to dismiss the charge under subdivision 2(a)(2). In her motion to
dismiss, Crawley relied wholly on Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005). In
Chaker, the United States Court of Appeals for the Ninth Circuit held that a California
statute, Cal. Penal. Code § 148.6, criminalizing knowingly false reports of police
misconduct violated the First Amendment for targeting “only knowingly false speech
critical of peace officer conduct during the course of a complaint investigation,” but not
“[k]nowingly false speech supportive of peace officer conduct.” 428 F.3d at 1228. The
Winona County District Court denied the motion to dismiss and, after a trial, a jury found
Crawley guilty of both counts. The district court concluded subdivision 1 was a lesser
included offense of subdivision 2(a)(2), convicted Crawley of subdivision 2(a)(2), and
sentenced her to 15 days in jail.
Crawley appealed her conviction to the Minnesota Court of Appeals. In a divided
decision, the court of appeals reversed Crawley’s conviction and remanded the case for
sentencing on the subdivision 1 verdict. Crawley, 789 N.W.2d at 910. The majority of
the court categorized the speech at issue as an “intentional lie” that was not protected by
the First Amendment. Id. at 903 (emphasis omitted). The majority stated that “even
though intentional falsehoods are subject to regulation, the government cannot pick and
choose which falsehoods to prohibit so as to criminalize certain false statements but not
others based on the content of the speech or viewpoint of the speaker.” Id. at 904. The
majority concluded that subdivision 2 violates the First Amendment because it
5
criminalizes “false critical information” but not “false exonerating information,” contrary
to the prohibition on viewpoint discrimination announced in R.A.V. v. City of St. Paul,
505 U.S. 377, 395 (1992). Crawley, 789 N.W.2d at 910. The court of appeals dissent, on
the other hand, concluded that the statute targeted speech within the unprotected category
of defamation, not simple “lies.” Id. (Harten, J., dissenting) (emphasis omitted). The
dissent reasoned that, when viewed as a regulation of defamation, section 609.505,
subdivision 2, comes within the exceptions to the R.A.V. prohibition on content
discrimination. Crawley, 789 N.W.2d at 911-12 (Harten J., dissenting). The State sought
further review,2 which we granted.3
2
Crawley does not challenge the constitutionality of Minn. Stat. § 609.505, subd. 1.
Our review is therefore limited to section 609.505, subdivision 2.
3
The State and amicus curiae Minnesota Attorney General ask us to limit our
review to section 609.505, subdivision 2(a)(2), the subparagraph that addresses
knowingly false reports of police misconduct that allege the officer committed a crime,
rather than review subdivision 2 as a whole. (Subdivision 2 also includes subparagraph
(a)(1), which applies to false reports of police misconduct in which the alleged act of
misconduct is not a crime.) Crawley and amicus curiae American Civil Liberties Union
of Minnesota oppose a limited review, arguing that the statutory text implicating the First
Amendment—“[w]hoever informs, or causes information to be communicated, to a peace
officer . . . knowing that the information is false, is guilty of a crime”—is within
paragraph 2(a), which is antecedent to and applies to both subparagraphs (a)(1) and
(a)(2).
We will not limit our review as requested by the State and amicus Minnesota
Attorney General. In the statement of the case Crawley filed in the court of appeals, she
identified the legal issue in her appeal as whether the district court erred “in failing to
conclude that Minnesota Statutes section 609.505, subdivision 2, constitutes a viewpointand content-based restriction that violates the First Amendment.” In its brief to the court
of appeals, the State argued that review should be limited to subdivision 2(a)(2), a limit
that Crawley opposed as she does here. The court of appeals addressed the entirety of
subdivision 2 in its decision. Crawley, 789 N.W.2d at 902, 910. When the State sought
(Footnote continued on next page.)
6
We begin by noting certain principles of First Amendment law that will frame our
discussion of this case. Content-based restrictions of speech4 are presumptively invalid,
R.A.V., 505 U.S. at 382, and ordinarily subject to strict scrutiny, United States v. Playboy
Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).
But the Supreme Court “ha[s] long
recognized that the government may regulate certain categories of expression consistent
with the Constitution.” Virginia v. Black, 538 U.S. 343, 358 (2003). As explained
recently by the Supreme Court in United States v. Stevens:
From 1791 to the present, . . . the First Amendment has permitted
restrictions upon the content of speech in a few limited areas, and has never
(Footnote continued from previous page.)
our review, it identified in its petition that the legal issue here was whether “subdivision
2” violates the First Amendment. Moreover, the Legislature added subdivision 2 in its
entirety to section 609.505 in the same law, see Act of June 2, 2005, ch. 136, § 30, 2005
Minn. Laws 901, 1138, making its whole text relevant to our review. See generally
Christensen v. Dep’t of Conservation, Game & Fish, 285 Minn. 493, 499-500, 175
N.W.2d 433, 437 (1970) (construing statutory language in context of act that contains it).
Finally, we note that the court of appeals has since relied on its decision in Crawley to
reverse at least one conviction in an order opinion that addresses only subdivision 2.
State v. Farkarlun, No. A09-2092, Order at 2 (Minn. App. filed Dec. 13, 2010), rev.
stayed (Minn. Feb. 15, 2011).
Given the record on appeal, the decision of the court of appeals holding
subdivision 2 unconstitutional, and the fact that the constitutionality of subdivision 2 is an
important question with statewide impact that is likely to recur until we resolve it, see
Minn. R. Civ. App. P. 117, subd. 2(a), (b), (d), we address the entirety of section 609.505,
subdivision 2, in this opinion.
4
Content-neutral time, place, and manner restrictions, on the other hand, are subject
to a less exacting standard of review: “[Reasonable time, place, or manner restrictions]
are valid provided that they are justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of the information.”
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
7
included a freedom to disregard these traditional limitations. These historic
and traditional categories long familiar to the bar . . . include[d] obscenity,
defamation, fraud, incitement, and speech integral to criminal conduct . . . .
__ U.S. __, 130 S. Ct. 1577, 1584 (2010) (citations omitted) (internal quotation marks
and alterations omitted). Categories of speech such as obscenity and defamation that may
be restricted without violating the First Amendment are often called “unprotected
speech,” R.A.V., 505 U.S. at 406, and can, “consistently with the First Amendment, be
regulated because of their constitutionally proscribable content.” Id. at 383 (emphasis
omitted). But these unprotected categories of speech are not “entirely invisible to the
Constitution, so that they may be made the vehicles for content discrimination unrelated
to their distinctively proscribable content.” Id. at 383-84. Thus, the government is
prohibited from discriminating on the basis of content within unprotected categories of
speech unless one of the exceptions set forth in R.A.V. apply. Id. at 388-90
Following this framework, in Part I of this opinion, we conclude that section
609.505, subdivision 2, is a content-based regulation of speech. In Part II, we construe
section 609.505, subdivision 2, narrowly and conclude that the statute punishes only
speech that meets the Minnesota definition of defamation, an unprotected category of
speech. In Part III, we evaluate the statute under the constitutional rule that prohibits the
State from drawing distinctions based on content within an unprotected category of
speech. Finally, in Part IV, we conclude that under our narrowing construction, section
609.505, subdivision 2, is constitutional.
8
I.
The constitutionality of a statute presents a question of law, which we review de
novo. State v. Cox, 798 N.W.2d 517, 519 (Minn. 2011); State v. Melde, 725 N.W.2d 99,
102 (Minn. 2006).
In this case, the court of appeals held that section 609.505,
subdivision 2, criminalizes the “intentional lie.” State v. Crawley, 789 N.W.2d 899, 903
(Minn. App. 2010) (emphasis omitted).
The court of appeals determined that the
intentional lie is one type of expression that is subject to regulation, since it “fails to
‘materially advance[] society’s interest in uninhibited, robust, and wide-open debate on
public issues.’ ” Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)).
Nevertheless, the court of appeals concluded that the statute is facially unconstitutional
because it exposes some speakers but not others to criminal sanction based on the
speaker’s expressed viewpoint regarding the police.
Id. at 905 (“The provision
challenged in this case punishes only those known falsehoods that are critical of police
conduct.”).
Crawley asks us to affirm, arguing that the statute impermissibly
discriminates against “a certain class of anti-government speech” while permitting an
otherwise “similarly situated class of pro-government speech” to go unpunished. To
address Crawley’s argument, we must first determine whether section 609.505 is a
content-based regulation of speech.
Section 609.505, subdivision 2, criminalizes knowingly false reports of police
misconduct. Neither party disputes that the statute regulates speech. But while Crawley
contends that the statute impermissibly discriminates on the basis of content, and even
9
viewpoint,5 the State argues that the statute is a content-neutral time, place, and manner
restriction.
We conclude that section 609.505, subdivision 2, is a content-based
regulation of speech because whether a person may be prosecuted under the statute
depends entirely on what the person says. See Holder v. Humanitarian Law Project, __
U.S. __, 130 S. Ct. 2705, 2712, 2723-74 (2010) (concluding a law that made it a crime to
“knowingly provid[e] material support or resources to a foreign terrorist organization”
regulated speech based on its content because whether plaintiffs could speak without
sanction “depends on what they say”).
II.
Because section 609.505, subdivision 2, is a content-based regulation of speech,
we must determine if the statute, as written, criminalizes only unprotected speech.6 See
5
Crawley argues that subdivision 2 discriminates on the basis of viewpoint because
it criminalizes false critical information but not false exonerating information. In Morse
v. Frederick, 551 U.S. 393, 436 (2007) (Stevens, J., dissenting), Justice Stevens noted
that “censorship that depends on the viewpoint of the speaker” is “subject to the most
rigorous burden of justification”:
Discrimination against speech because of its message is presumed to be
unconstitutional. . . . When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation of the First
Amendment is all the more blatant. Viewpoint discrimination is thus an
egregious form of content discrimination. The government must abstain
from regulating speech when the specific motivating ideology or the
opinion or perspective of the speaker is the rationale for the restriction.
(citation omitted) (internal quotation marks omitted). We address whether section
609.505, subdivision discriminates on the basis of viewpoint in Part III.
6
The court of appeals held that section 609.505, subdivision 2, criminalizes the
“intentional lie.” State v. Crawley, 789 N.W.2d 899, 903 (Minn. App. 2010) (emphasis
(Footnote continued on next page.)
10
United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1584 (2010) (traditional categories
of unprotected speech “long familiar to the bar” include obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct).
If the statute, as written,
criminalizes a substantial amount of protected speech in addition to unprotected speech,
we must then determine if we can uphold the statute’s constitutionality by construing it
narrowly to reach only unprotected speech.
To be a constitutional exercise of the police power of a state, a statute that
punishes speech must not be overly broad.7 See Broadrick v. Oklahoma, 413 U.S. 601,
612 (1973). In general, a statute can be said to be overly broad if it prohibits or chills a
substantial amount of protected speech along with unprotected speech. See Ashcroft v.
Free Speech Coal. 535 U.S. 234, 244 (2002). But when possible, we uphold a law’s
(Footnote continued from previous page.)
omitted). The court of appeals further concluded that the intentional lie is subject to
regulation because it “is one type of expressive action that fails to ‘materially advance[]
society’s interest in uninhibited, robust, and wide-open debate on public issues.’ ” Id.
(quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). We disagree. Recent
decisions by federal appellate courts have cast serious doubt on the intentional lie or
knowingly false speech as a category of unprotected speech. See United States v.
Alvarez, __ U.S. __, 132 S. Ct. 2537, 2545 (2012) (plurality opinion) (“[F]alsity alone
may not suffice to bring the speech outside the First Amendment.”); 281 Care Comm. v.
Arneson, 638 F.3d 621, 633-34 (8th Cir. 2011) (declining to recognize “knowingly false
campaign speech” as categorically unprotected). We thus decline to recognize the
intentional lie or knowingly false speech as a category of unprotected speech.
7
The Supreme Court has held that although as applied to a particular defendant an
ordinance might be neither vague nor overbroad or otherwise invalid, the defendant could
raise its vagueness or unconstitutional overbreadth as applied to others, and an ordinance
which was facially unconstitutional could not be applied to the defendant unless a
satisfactory limiting construction was placed on the ordinance by state courts. See
Plummer v. City of Columbus, 414 U.S. 2, 3 (1973) (per curiam).
11
constitutionality by narrowly construing the law so as to limit its scope to conduct that
falls outside First Amendment protection while clearly prohibiting its application to
constitutionally protected expression. See In re Welfare of S.L.J., 263 N.W.2d 412, 419
(Minn. 1978) (disorderly conduct statute limited to “fighting words” to preserve
constitutionality); see also New York v. Ferber, 458 U.S. 747, 769, n.24 (1982) (“If the
invalid reach of the law is cured [by narrow judicial construction], there is no longer
reason for proscribing the statute’s application to unprotected conduct.”).
We construe statutes de novo. Krummenacher v. City of Minnetonka, 783 N.W.2d
721, 726 (Minn. 2010). Our primary objective is to ascertain and give effect to the
legislature’s intent. Minn. Stat. § 645.16 (2010). We follow the directive that “[w]hen
the words of a law in their application to an existing situation are clear and free from all
ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the
spirit.” Id. Ambiguity exists only where statutory language is subject to more than one
reasonable interpretation. In re Welfare of J.B., 782 N.W.2d 535, 540 (Minn. 2010).
A.
We begin with the language of the statute.
Section 609.505, subdivision 2,
provides in relevant part:
(a) Whoever informs, or causes information to be communicated to, a
peace officer, whose responsibilities include investigating or reporting
police misconduct, that a peace officer, as defined in section 626.84,
subdivision 1, paragraph (c), has committed an act of police misconduct,
knowing that the information is false, is guilty of a crime and may be
sentenced as follows:
(1) up to the maximum provided for a misdemeanor if the false
information does not allege a criminal act; or
12
(2) up to the maximum provided for a gross misdemeanor if the false
information alleges a criminal act.
Under the statute, in order for a person to be subject to criminal sanctions, he or she must
“know[]” that the information he or she communicates to a peace officer is false. And
the statute specifies the “information” that is actionable: “that a peace officer . . . has
committed an act of police misconduct.”
“[A]ct of police misconduct” has a clear, technical meaning when we turn to other
statutes on the same subject, and to applicable rules. See Minn. Stat. § 645.08(1) (2010)
(requiring that, when Minnesota statutes are construed, “technical words and phrases and
such others as have acquired a special meaning . . . are construed according to such
special meaning or their definition”). First, Minnesota Rules 6700.2000–.2600 (2011)
create procedures and guidelines for the investigation, processing, and resolution of
misconduct allegations against licensed peace officers. The rules define “[m]isconduct”
as “an act or omission by an employee or appointee of an agency licensed by the board
which may result in disciplinary action by the agency or appointing authority.” Minn. R.
6700.2000, subp. 3. The model state professional conduct policy, developed by the state
Board of Police Officer Standards and Training pursuant to Minn. Stat. § 626.8457, subd.
1, 2, (2010), outlines 35 rules of conduct, including a prohibition against committing a
crime while on or off duty.
See Board of Police Officer Standards and Training,
Professional Conduct of Peace Officers Model Policy (2011). Considering these
provisions, we construe “act of police misconduct” in Minn. Stat. § 609.505, subd. 2, to
13
mean a specific act or omission that violates a policy or rule of professional conduct,
adopted by a law enforcement agency, which would expose a peace officer to discipline.
The use of the identical phrase “a peace officer” in section 609.505, subdivision 2,
can apply to situations in which the officer who is the subject of the false report is the
same officer who is informed about the report. The statute can also apply to situations
where the officer who is the subject of the false report is not the same officer who is
informed about the report. A peace officer is identified generally by the reference to the
statutory definition of “peace officer” at Minn. Stat. § 626.84, subd. 1(c)(1)(2010).8
Although the two instances of the phrase “a peace officer” are followed by different
descriptive clauses―“whose responsibilities include investigating or reporting police
misconduct” and “has committed an act of police misconduct”―there is no requirement
that a peace officer being informed of the misconduct must be a different person than the
peace officer who is accused of committing misconduct in order for the speech to be
criminal.
8
“Peace officer” means . . . an employee or an elected or appointed official
of a political subdivision or law enforcement agency who is licensed by the
[Board of Peace Officer Standards and Training], charged with the
prevention and detection of crime and the enforcement of the general
criminal laws of the state and who has the full power of arrest, and shall
also include the Minnesota State Patrol, agents of the Division of Alcohol
and Gambling Enforcement, state conservation officers, Metropolitan
Transit police officers, Department of Corrections Fugitive Apprehension
Unit officers, and Department of Commerce Insurance Fraud Unit officers,
and the statewide coordinator of the Violent Crime Coordinating Council
....
Minn. Stat. § 626.84, subd. 1(c) (2010).
14
We thus conclude that section 609.505, subdivision 2, as written, makes it a crime
for a person to inform a peace officer, whose responsibilities include investigating or
reporting police misconduct, that a peace officer, who may or may not be the same peace
officer being so informed, committed an act of police misconduct, knowing that the
information conveyed is false.
B.
It is clear that, as written, section 609.505, subdivision 2, is overly broad because
it punishes a substantial amount of protected speech in addition to unprotected speech.9
As explained below, while the statute, as written, criminalizes defamatory speech, which
is unprotected under the First Amendment, it also criminalizes a substantial amount of
speech that is not defamatory and thus protected speech.
To establish a defamation claim in Minnesota, a plaintiff must prove four
elements: he or she must show that the defamatory statement is “communicated to
someone other than the plaintiff;” that “the statement is false;” that the statement tends to
“harm the plaintiff’s reputation” and to lower the plaintiff “in the estimation of the
9
A statute may be declared facially unconstitutional as overly broad if it prohibits
or chills a substantial amount of protected speech along with unprotected speech. See
Ashcroft, 535 U.S. at 244. The categories of speech that have been held unprotected by
the First Amendment include obscenity, defamation, fraud, incitement, and speech
integral to criminal conduct. See Stevens, 130 S. Ct. at 1584. Since section 609.505,
subdivision 2, does not criminalize words “which by their very utterance inflict injury or
tend to incite an immediate breach of the peace,” the prohibited speech cannot be
categorized as “fighting words.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942). We also conclude that the speech prohibited by section 609.505, subdivision 2,
cannot be categorized as obscenity, fraud, incitement, or speech integral to criminal
conduct. But a large portion of the speech prohibited by section 609.505, subdivision 2,
can be categorized as defamation, and our analysis proceeds on this basis.
15
community,” Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919-20 (Minn. 2009); and
that the recipient of the false statement reasonably understands it to refer to a specific
individual, see Glenn v. Daddy Rocks, Inc., 171 F. Supp. 2d 943, 948 (D. Minn. 2001)
(stating, under Minnesota law, that the “of and concerning” element requires the plaintiff
in a defamation lawsuit to prove that the statement at issue either explicitly referred to the
plaintiff or that a reader “by fair implication” would understand that the statement
referred to the plaintiff). “If the defamation affects the plaintiff in his business, trade,
profession, office or calling, it is defamation per se and thus actionable without any proof
of actual damages.” Bahr, 766 N.W.2d at 920 (citation omitted) (internal quotation
marks and alteration omitted).
Because the statute, as written, does not require knowingly false accusations of
police misconduct to be communicated to someone other than the plaintiff in order for the
speech to be criminal, the statute fails to fulfill the first element of defamation:
publication to a third person. The statute also fails to fulfill the fourth element because it
does not require the statement to be “of and concerning” a specific individual. Because
the statute does not satisfy all of the elements of defamation, it punishes a substantial
amount of protected speech and is therefore facially unconstitutional.
The United States Supreme Court has recognized that the overbreadth doctrine as
“strong medicine” that has been employed “sparingly.” Broadrick, 413 U.S. at 613.
“Because of the wide-reaching effects of striking down a statute on its face,” the Supreme
Court has employed the overbreadth doctrine “with hesitation, and then ‘only as a last
resort.’ ”
Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613).
16
“Facial
overbreadth has not been invoked when a limiting construction has been or could be
placed on the challenged statute.” Broadrick, 413 U.S. at 613. In In re Welfare of
R.A.V., we stated
[T]he complete invalidation of legislatively adopted laws [the overbreadth
doctrine] permits is “strong medicine” that this court does not hastily
prescribe. Where the overbreadth of the challenged law is both “real” and
“substantial,” and where “the words of the [law] simply leave no room for a
narrowing construction,” “so that in all its applications the [law] creates an
unnecessary risk of chilling free speech,” this court will completely
invalidate it. When possible, however, this court narrowly construes a law
subject to facial overbreadth attack so as to limit its scope to conduct that
falls outside first amendment protection while clearly prohibiting its
application to constitutionally protected expression.
464 N.W.2d 507, 509 (Minn. 1991) (citations omitted) (rev’d sub nom. R.A.V. v. City of
St. Paul, 505 U.S. 377 (1992)).
Although the statute does not satisfy all of the elements of defamation, we can
uphold its constitutionality by construing it narrowly to refer only to defamation. The
United States Supreme Court generally allows, and even encourages, state supreme
courts to sustain the constitutionality of state statutes regulating speech by construing
them narrowly to punish only unprotected speech. For example, in Chaplinsky, the
Supreme Court upheld a New Hampshire statute as constitutional because the highest
court of New Hampshire authoritatively construed the statute to reach only “fighting
words.” 315 U.S. at 573. The statute at issue in Chaplinsky provided: “No person shall
address any offensive, derisive or annoying word to any other person who is lawfully in
any street or other public place, nor call him by any offensive or derisive name . . . .” Id.
at 569 (internal quotation marks omitted). The state court limited the statute’s reach to
17
“fighting words” by holding that the statute only prohibited words that “have a direct
tendency to cause acts of violence by the persons to whom, individually, the remark is
addressed.” Id. at 573 (citation omitted). In upholding the constitutionality of the statute,
the Supreme Court stated:
We are unable to say that the limited scope of the statute as thus construed
contravenes the Constitutional right of free expression. It is a statute
narrowly drawn and limited to define and punish specific conduct lying
within the domain of state power, the use in a public place of words likely
to cause a breach of the peace.
Id.
The Supreme Court has also deferred to our authoritative construction of statutes
regulating speech. In S.L.J., we examined the constitutionality of the disorderly conduct
statute, Minn. Stat. § 609.72, subd. 1(3) (1976).10 263 N.W.2d 412. We stated that, as
written, section 609.72, subdivision 1(3), was both “overly broad and vague” because it
did not satisfy the definition of “fighting words”:
10
Minnesota Statutes § 609.72, subd. 1 (1976), provided:
Whoever does any of the following in a public or private place, 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:
(1)
Engages in brawling or fighting; or
(2)
Disturbs an assembly or meeting, not unlawful in its character; or
(3)
Engages in offensive, obscene, or abusive language or in boisterous
and noisy conduct tending reasonably to arouse alarm, anger, or
resentment in others.
See S.L.J., 263 N.W.2d at 415.
18
Since the statute punishes words alone—“offensive, obscene, or abusive
language”—it must be declared unconstitutional as a violation of the First
and Fourteenth Amendments unless it only proscribes the use of “fighting
words.” Section 609.72, subd. 1(3), however, punishes words that merely
tend to “arouse alarm, anger, or resentment in others” rather than only
words “which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” Since the statute does not satisfy the
definition of “fighting words,” it is unconstitutional on its face.
S.L.J., 263 N.W.2d at 418-19. But we went on to hold that although section 609.72,
subdivision 1(3) “clearly contemplates punishment for speech that is protected under the
First and Fourteenth Amendments, we can uphold its constitutionality by construing it
narrowly to refer only to ‘fighting words.’ ” S.L.J., 263 N.W.2d at 419. We noted that
the Supreme Court has, in fact, “encouraged state supreme courts to sustain the
constitutionality of their offensive-speech statutes by construing them narrowly” to
punish only unprotected speech. Id. at 419 n.5 (collecting cases).
Then in In re R.A.V., 464 N.W.2d at 510, we relied on our previous construction in
S.L.J. to limit the application of the statute at issue to “fighting words.” In In re R.A.V.,
prior to Supreme Court review, we considered a St. Paul ordinance that made it a
misdemeanor to display a symbol, “including but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or
resentment in others on the basis of race, color, creed, religion, or gender.” 464 N.W.2d
at 508 (citation omitted). Applying our previous construction in S.L.J., we limited the
phrase “arouses anger, alarm, or resentment in others” to punish only unprotected
“fighting words,” defined as “conduct that itself inflicts injury or tends to incite
immediate violence.” In re R.A.V., 464 N.W.2d at 510. Although as written, the statute
19
did not satisfy the elements of “fighting words,” we narrowly construed it to refer only to
“fighting words.”
Id.
On appeal, the Supreme Court deferred to our authoritative
construction of the ordinance: “In construing the St. Paul ordinance, we are bound by the
construction given to it by the Minnesota court. Accordingly, we accept the Minnesota
Supreme Court’s authoritative statement that the ordinance reaches only those
expressions that constitute fighting words, within the meaning of Chaplinsky.” R.A.V.,
505 U.S. at 381 (internal citations omitted).11
Based on prior decisions, including Chaplinsky, S.L.J., and R.A.V., we uphold the
constitutionality of section 609.505, subdivision 2, by narrowly construing it to punish
only “defamation.”12 Accordingly, we hold that to subject a person to criminal sanctions
11
As discussed later in our opinion, although the Supreme Court deferred to our
authoritative construction of the St. Paul ordinance to punish only “fighting words,” it
concluded that the ordinance was facially unconstitutional because the ordinance
impermissibly discriminated on the basis of content within the category of “fighting
words.” R.A.V., 505 U.S. at 391.
12
Unlike the resolution at issue in Board of Airport Commissioners of the City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), and the statute at issue in Secretary
of State of Maryland v. Joseph H. Munson Company, Inc., 467 U.S. 947 (1984), section
609.505, subdivision 2 is susceptible to a narrowing construction. In Board of Airport
Commissioners, the Supreme Court held that a resolution banning all “First Amendment
activities” at Los Angeles International Airport was unconstitutional because it was
“substantially overbroad” and “not fairly subject to a limiting construction.” 482 U.S. at
570, 577.
In Secretary of State of Maryland, the Supreme Court struck down a statute
regulating fundraising activities because there was “no core of easily identifiable and
constitutionally proscribable conduct that the statute prohibit[ed].” 467 U.S. at 965-66.
The Maryland statute at issue prohibited a charitable organization, in connection with any
fundraising activity, from paying expenses of more than 25% of the amount raised, but
authorized a waiver of this limitation where it would effectively prevent the organization
(Footnote continued on next page.)
20
under section 609.505, subdivision 2, the State must prove that the person informed a
police officer, whose responsibilities include investigating or reporting police
misconduct, that another officer has committed an act of police misconduct, knowing that
the information is false. In addition, in order to satisfy the “of and concerning” element
of defamation, the State must prove that the officer receiving the information reasonably
understands the information to refer to a specific individual.13
(Footnote continued from previous page.)
from raising contributions. Id. at 950-51 & n.2.
unconstitutional, the Supreme Court stated:
In holding that the statute was
Here there is no core of easily identifiable and constitutionally proscribable
conduct that the statute prohibits. . . . The flaw in the statute is not simply
that it includes within its sweep some impermissible applications, but that
in all its applications it operates on a fundamentally mistaken premise that
high solicitation costs are an accurate measure of fraud.
Id. at 965-66.
Unlike the resolution in Board of Airport Commissioners and the statute in
Secretary of State of Maryland, section 609.505, subdivision 2 is susceptible to a
narrowing construction.
Although section 609.505, subdivision 2, as written,
contemplates the punishment of protected speech in some of its applications, there is a
“core of easily identifiable and constitutionally proscribable conduct”―defamation―that
the statute prohibits.
13
The dissent erroneously asserts that we “rely on the canon of constitutional
avoidance” to uphold subdivision 2. See, e.g., FCC v. Fox Television Stations, Inc., 556
U.S. 502, 516 (2009) (describing the canon of constitutional avoidance as an “interpretive
tool, counseling that ambiguous statutory language be construed to avoid serious
constitutional doubts”). We do not claim that subdivision 2 is ambiguous. Instead, in
conformity with our S.L.J. and R.A.V. decisions, as well as the Supreme Court’s guidance
that “[f]acial overbreadth has not been invoked when a limiting construction has been or
could be placed on the challenged statute,” Broadrick, 413 U.S. at 613, we uphold the
statute by limiting its application to speech constituting defamation.
21
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.
Moreover, the mental state required for a conviction under section 609.505,
subdivision 2, exceeds the actual malice standard for defamation of a public official
established by the Supreme Court. See New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964) (concluding that a public official may not recover damages for “a
defamatory falsehood” absent proof that the statement was made with knowledge it was
14
The dissent argues that “subdivision 2 creates a greater risk of chilling protected
speech than the now-invalidated Stolen Valor Act” because “[u]nlike the Stolen Valor
Act―which regulated “easily verifiable facts”—subdivision 2 regulates false statements
that are not easily or objectively verifiable” (citation omitted). But whether or not
alleged defamatory statements contain “easily verifiable facts” has never been an element
of defamation. See Bahr, 766 N.W.2d at 919-20; Glenn, 171 F. Supp. 2d at 948. The
dissent’s distinction between the Stolen Valor Act and subdivision 2 is therefore
irrelevant for purposes of our analysis.
22
false, or with reckless disregard of whether the statement was true or false); Garrison v.
Louisiana, 379 U.S. 64, 77-78 (1964) (applying New York Times standard to a criminal
defamation statute).
Under New York Times and Garrison, a person is exposed to
liability for making a statement that he or she knew to be false, or for making a statement
with reckless disregard for its truth. Under section 609.505, subdivision 2, the State must
prove that a person knew the allegation that a peace officer committed an act of
misconduct was false. Thus, section 609.505, subdivision 2, reaches only speech that is
defamatory.15
C.
Crawley was convicted under section 609.505, subdivision 2, before our
narrowing construction of the statute. She is therefore entitled to have a jury determine
whether her statements to Winona Police Department Sergeant Christopher Nelson were
“of and concerning” another peace officer. See State v. Vance, 734 N.W.2d 650, 657
(Minn. 2007) (“[D]ue process . . . ‘entitle[s] a criminal defendant to a jury determination
that [she] is guilty of every element of the crime with which [s]he is charged, beyond a
15
The dissent asserts that subdivision 2 “punishes precisely the type of speech that is
at the ‘very center’ of the First Amendment: statements critical of government officials”
(quoting Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)), and therefore “risks chilling
valuable speech” (quoting Gertz, 418 U.S. at 342). But because subdivision 2 requires a
heightened mens rea―knowingly―it does not risk “chilling” valuable speech. See New
York Times Co., 376 U.S. at 279; Garrison, 379 U.S. at 74. Furthermore, even if a person
communicates a false statement about police misconduct in the privacy of one’s home, or
at a social club, that is later communicated to an officer whose responsibilities include
investigating or reporting police misconduct, that person would not be subject to criminal
liability unless he made the statements “knowing that the information is false.”
Subdivision 2 therefore does not risk “chilling” valuable speech.
23
reasonable doubt.’ ” (quoting Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000)).
We, therefore, reverse Crawley’s conviction and remand for a new trial based on our
narrowing construction of section 609.505, subdivision 2.
III.
Section 609.505, subdivision 2, does not pass constitutional muster based solely
upon our construction that narrows the statute to defamation. Rather, we must evaluate
the statute under Supreme Court precedent laying out the constitutional prohibition on
content discrimination within unprotected categories of speech, and we turn now to that
analysis.
A.
Defamation and other categories of speech that may be restricted without violating
the First Amendment are often referred to as “not within the area of constitutionally
protected speech.” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoting Roth v.
United States, 354 U.S. 476, 483 (1957)).
These unprotected areas of speech can,
“consistently within the First Amendment, be regulated because of their constitutionally
proscribable content.” Id. But these unprotected categories of speech are not “invisible
to the Constitution, so that they may be made the vehicles for content discrimination
unrelated to their distinctively proscribable content.”
Id. at 383-84.
Thus, the
government is prohibited from discriminating on the basis of content within unprotected
categories of speech unless one of the exceptions set forth in R.A.V. apply. Id. at 384,
388-90.
24
Crawley argues that subdivision 2 is viewpoint-based, in addition to being contentbased, because it impermissibly discriminates against “a certain class of anti-government
speech” while permitting an otherwise “similarly situated class of pro-government
speech” to go unpunished. We disagree and conclude that subdivision 2 is not viewpointbased. Speech that is supportive of peace officer conduct fails to satisfy the elements of
defamation because it does not tend to harm the plaintiff’s reputation and to lower the
plaintiff in the estimation of the community. If the statute were to reach pro-government
speech as well as defamation, the statute would punish a substantial amount of protected
speech and be facially unconstitutional as overly broad.
Because speech that is
supportive of peace officer conduct does not fall within the unprotected category of
defamation, the statute does not discriminate on the basis of viewpoint.
B.
We begin with the general rule of R.A.V., which is that content-based distinctions
drawn within unprotected categories of speech are unconstitutional. 505 U.S. at 382. But
these content-based distinctions may survive constitutional attack if one or more
specified exceptions from R.A.V. apply. Id. at 388-90.
In R.A.V., the Supreme Court considered a St. Paul ordinance that made it a
misdemeanor to display a symbol, “including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds to know arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender.” 505 U.S. at
380 (emphasis added) (citation omitted).
The Supreme Court was bound by our
construction of the ordinance, limiting the ordinance to reach only “fighting words,”
25
R.A.V., 505 U.S. at 381, but nonetheless reversed, concluding that the ordinance was
facially unconstitutional. Id. at 396.
The focus of the Court’s reasoning was on the use of the words “on the basis of
race, color, creed, religion or gender,” stating that it was “obvious that the symbols which
will arouse ‘anger, alarm or resentment in others on the basis of race, color, creed,
religion or gender’ are those symbols that communicate a message of hostility based on
one of these characteristics.” Id. at 393 (citation omitted). The Court explained the
constitutional problem:
Displays containing abusive invective, no matter how vicious or severe, are
permissible unless they are addressed to one of the specified disfavored
topics. Those who wish to use “fighting words” in connection with other
ideas—to express hostility, for example, on the basis of political affiliation,
union membership, or homosexuality—are not covered. The First
Amendment does not permit St. Paul to impose special prohibitions on
those speakers who express views on disfavored subjects.
Id. at 391. The Court underscored the nature of the constitutional failing of the St. Paul
ordinance when it decided Virginia v. Black, 538 U.S. 343 (2003). In Black, the Court
upheld a Virginia statute that banned cross burning “with the intent of intimidating any
person or group of persons.” 538 U.S. at 348, 362–63 (citation omitted). In contrast with
the ordinance in R.A.V., the Virginia law survived scrutiny because it squarely based its
prohibition on cross-burning upon intimidation—which the Court held is a type of “true
threat” not protected by the First Amendment—but not upon intimidation that results
from or is based on any topic, subject, idea, or characteristic. 538 U.S. at 360, 362. It
was the inclusion of the “on the basis of” factors that doomed the ordinance in R.A.V.
R.A.V., 505 U.S. at 396; see Black, 538 U.S. at 362.
26
By prohibiting “only a particular type of threat”—cross burning—within the
broader unprotected category of “true threats,” the Virginia cross-burning statute fell
within the first of three exceptions to the general prohibition against content-based
discrimination within unprotected categories of speech announced in R.A.V. Black, 538
U.S. at 362; R.A.V., 505 U.S. at 388-90. The first exception to the R.A.V. prohibition can
be stated as follows: when the basis for the content discrimination of a subclass “consists
entirely of the very reason the entire class of speech at issue is proscribable, no
significant danger of idea or viewpoint discrimination exists.” R.A.V., 505 U.S. at 388.
The second exception to R.A.V. states that a “valid basis for according differential
treatment to even a content-defined subclass of proscribable speech is that the subclass
happens to be associated with particular ‘secondary effects’ of the speech, so that the
regulation is ‘justified without reference to the content of the . . . speech.’ ” R.A.V., 505
U.S. at 389 (emphasis omitted) (quoting Renton v. Playtime Theaters, Inc., 475 U.S. 41,
48 (1986)). The third R.A.V. exception allows distinguishing a subclass even without
identifying “any particular ‘neutral’ basis, so long as the nature of the content
discrimination is such that there is no realistic possibility that official suppression of
ideas is afoot.” Id. at 390. Together, the exceptions allow content-based distinctions,
within unprotected categories of speech, that pose little danger of government action
eliminating or driving out ideas or viewpoints from public conversation. Id. at 388-90.
Turning to this case, because we construe section 609.505, subdivision 2, to reach
defamation, R.A.V. controls our analysis here. Subdivision 2 criminalizes a content-based
subclass of defamation because it applies to defamation per se that alleges an act of
27
misconduct implicating a peace officer, made to a specific sort of peace officer: one
“whose responsibilities include investigating or reporting police misconduct.” Rather
than criminalizing defamation generally, subdivision 2 prohibits a subset of defamatory
speech with certain content—that a peace officer committed an act of misconduct—made
to a certain audience—a peace officer whose responsibilities include investigating and
reporting police misconduct.
Because the statute addresses a subset of defamatory
speech, in order to decide whether section 609.505, subdivision 2, is constitutional, we
must examine and apply the exceptions announced in R.A.V. 505 U.S. at 388-90. We
proceed now to those three exceptions.
1.
The first exception identified in R.A.V. is the exception that the Court applied in
Black: when the basis for the content discrimination of a subclass “consists entirely of
the very reason the entire class of speech at issue is proscribable, no significant danger of
idea or viewpoint discrimination exists.”
505 U.S. at 388.
As examples of this
exception, in R.A.V. the Court described a subclass of obscenity that is prohibited because
of its exceptionally prurient nature; threats against the President, which carry “special
force” when compared with “true threats” against other persons; and the decision of a
state to “choose to regulate price advertising in one industry but not in others, because the
risk of fraud (one of the characteristics of commercial speech that justifies depriving it of
full First Amendment protection) is in its view greater there.” Id. at 388-89 (emphasis
added) (citation omitted). As contrasting examples of subclasses that would be improper,
the Court pointed to an ordinance that prohibited obscene material that contained certain
28
political messages; a prohibition on threats against the President that “mention his policy
on aid to inner cities”; and a ban on commercial messages that applies only to
commercial advertising “that depicts men in a demeaning fashion.” Id.
The Court further explained and applied the first R.A.V. exception in Black,
concluding that the Virginia cross-burning statute at issue validly banned a “particularly
virulent form of intimidation.” 538 U.S. at 363 (“Instead of prohibiting all intimidating
messages, Virginia may choose to regulate this subset of intimidating messages in light of
cross burning’s long and pernicious history as a signal of impending violence.”). In
contrast, the St. Paul ordinance in R.A.V. that banned the display of a burning cross or
other symbols failed because of its “on the basis of” language, through which the
ordinance banned “fighting words . . . that communicate messages of racial, gender, or
religious intolerance.” 505 U.S. at 393-94 (emphasis added).
Turning to the issues in this case, we conclude that section 609.505 subdivision 2,
fails to meet the first R.A.V. exception.
The Supreme Court describes “[t]he legitimate state interest” underlying
defamation as “the compensation of individuals for the harm inflicted upon them by
defamatory falsehood.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974). Here the
basis for the content discrimination of the subclass does not “consist [] entirely of the
very reason the entire class of speech at issue is proscribable.” R.A.V., 505 U.S. at 388.
As discussed in Part III(B)(2) of this opinion, the secondary effects of the statute, such as
the expending of public resources to investigate false reports of misconduct and the
29
diversion of personnel and resources from legitimate reports of crime or misconduct,
provide the primary justification for the statute.
2.
The second exception to R.A.V. states that a “valid basis for according differential
treatment to even a content-defined subclass of proscribable speech is that the subclass
happens to be associated with particular ‘secondary effects’ of the speech, so that the
regulation is ‘justified without reference to the content of the . . . speech.’ ” R.A.V., 505
U.S. at 389 (quoting Renton, 475 U.S. at 48).
We note, first, that secondary-effects jurisprudence is an independent and complex
area of First Amendment law that, as in Renton, most often applies to municipal efforts to
regulate, through measures such as zoning ordinances, constitutionally-protected speech
that occurs at legal businesses, such as theaters that exhibit pornographic movies or stage
nude dancing.16 See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Renton,
475 U.S. 41.
16
We also note that the examples the Court gave for the “secondary effects”
exception in R.A.V. are not consistent with zoning ordinances applied to protected
expression. For one example of this exception, the Court said that a state “could, for
example, permit all obscene live performances except those involving minors.” R.A.V.,
505 U.S. at 389 (emphasis added). The Court also explained that “since words can in
some circumstances violate laws directed not against speech but against conduct,” there
would be no First Amendment problem if “sexually derogatory ‘fighting words’ ” were
the manner in which a person violated the federal law prohibiting sexual discrimination
in employment practices, or if a law prohibiting treason were violated with words. Id. at
389. The Court summarized: “Where the government does not target conduct on the
basis of its expressive content, acts are not shielded from regulation merely because they
express a discriminatory idea or philosophy.” Id. at 390. What all of these examples
(Footnote continued on next page.)
30
Knowingly false accusations of misconduct against a peace officer have
substantial secondary effects―they may trigger the expenditure of public resources to
conduct investigations of the accusations. Minn. R. 6700.2200 requires the chief law
enforcement officer to “establish written procedures for the investigation and resolution
of allegations of misconduct against” licensed peace officers. These procedures must
“minimally specify” the “misconduct which may result in disciplinary action” and “the
process by which complaints will be investigated.”
Minn. R. 6700.2200.
Section
609.505, subdivision 2(b), which was enacted in the same law as subdivision 2(a),
indicates that the statute targets recouping the cost of investigations that arise from
(Footnote continued from previous page.)
have in common is that they are “justified without reference to the content of the . . .
speech.” Id. at 389 (citations omitted) (internal quotation marks omitted).
The Supreme Court has held that direct impact on listeners cannot be a “secondary
effect” within the meaning of Renton. R.A.V., 505 U.S. at 394. When it applied the
secondary-effects exception to the St. Paul ordinance in R.A.V., the Court rejected an
argument from the City of St. Paul, which had asserted that the ordinance was intended to
“protect against the victimization of a person or persons who are particularly vulnerable
because of their membership in a group that historically has been discriminated against,”
not to impact “the right of free expression of the accused.” Id. (citation omitted) (internal
quotation marks omitted). The Court rejected this approach, noting that “emotive impact
of speech on its audience” and “[l]isteners’ reactions” could not be “ ‘secondary effects’
we referred to in Renton.” Id. Renton dealt with municipal zoning of movie theaters that
displayed pornographic films, and an ordinance that prevented such theaters from
opening in areas near schools, churches, residential neighborhoods, and the like. Renton,
475 U.S. at 44. “The [Renton] ordinance by its terms is designed to prevent crime,
protect the city’s retail trade, maintain property values, and generally protect and preserve
the quality of the city’s neighborhoods, commercial districts, and the quality of urban life,
not to suppress the expression of unpopular views.” Id. at 48 (alterations in original
omitted) (emphasis added). If the City of Renton had been concerned with restricting the
message or content of the pornographic films, the Court explained “it would have tried to
close them or restrict their number rather than circumscribe their choice as to location.”
Id.
31
knowingly false reports of acts of police misconduct. Act of June 2, 2005, ch. 136, § 30,
2005 Minn. Laws 901, 1138. Subdivision 2(b) requires a court to order “any person
convicted of a violation of [subdivision 2] to make full restitution of all reasonable
expenses incurred in the investigation of the false allegation unless the court makes a
specific written finding that restitution would be inappropriate under the circumstances.
A restitution award may not exceed $3,000.”17
In addition, other matters requiring police time and attention may suffer as a result
of investigations of knowingly false reports of police misconduct. The public resources
dedicated to law enforcement agencies are already inadequate in many communities
throughout the State to maintain an ideal level of order and safety. The public resources,
including wasted police time, expended in investigating knowingly false reports of police
misconduct would further exacerbate this problem.
Thus, the secondary effects of
knowingly false accusations of peace officer misconduct―the expenditure of public
resources to conduct investigations and the diversion of those resources away from other
matters―justify the regulation “ ‘without reference to the content of the . . . speech.’ ”
R.A.V., 505 U.S. at 389 (quoting Renton, 475 U.S. at 48).
We thus conclude that
subdivision 2 is valid under the second R.A.V. exception.
17
Testimony at a House committee hearing on the proposed law supports this
analysis. A sponsor of the House legislation who was also a state conservation officer
gave two examples of investigations from the Minnesota Department of Natural
Resources: one investigation required a computer to be analyzed; another required an
outside investigator to be assigned the case because of potential conflicts of interest.
Each of the investigations cost the agency $5,000. See Hearing on H.F. 381, H. Comm.
Pub. Safety Policy and Fin., 84th Minn. Leg., Feb. 15, 2005 (audio tape) (statement of
Rep. Tony Cornish).
32
3.
The third R.A.V. exception is a general exception that allows distinguishing a
subclass even without identifying “any particular ‘neutral’ basis, so long as the nature of
the content discrimination is such that there is no realistic possibility that official
suppression of ideas is afoot.” Id. at 390. The Court’s example for the third exception
was a prohibition on “only those obscene motion pictures with blue-eyed actresses.” Id.
This exception implicates, here, the question of whether a false statement of fact is, or
may be, an “idea.”
The Supreme Court has made a distinction between ideas and false statements of
fact:
Under the First Amendment there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas. But
there is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society’s interest in
“uninhibited, robust, and wide-open” debate on public issues.18
Gertz, 418 U.S. at 339-40 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964)). Nevertheless, false statements of fact are “inevitable in free debate” and “a rule
of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his
factual assertions may lead to intolerable self-censorship.”
18
Id. at 340.
But false
The Ninth Circuit also noted that “laws targeting false statements of fact . . . are
unlikely to directly express or relate to an identifiable viewpoint, meaning that the
exception in R.A.V. for cases in which ‘there is no realistic possibility that official
suppression of ideas is afoot,’ would probably apply.” United States v. Alvarez, 617 F.3d
1198, 1204 n.4 (9th Cir. 2010) (citation omitted) (quoting R.A.V., 505 U.S. at 390), aff’d,
__ U.S. __, 132 S. Ct. 2537 (2012).
33
statements of fact that can be characterized as defamation can be proscribed without
running afoul of the First Amendment.19 See New York Times Co., 376 U.S. at 279-80
(concluding that a public official may not recover damages for “a defamatory falsehood”
absent proof that the statement was made with knowledge it was false, or with reckless
disregard of whether the statement was true or false); Garrison, 379 U.S. at 77-78
(applying New York Times standard to a criminal defamation statute).
Turning to the instant case, section 609.505, subdivision 2, criminalizes knowingly
false reports of police misconduct, which are false statements of fact. As discussed in
Part I of this opinion, we construe “an act of police misconduct” to mean a specific act or
omission which violates a policy or rule of professional conduct, adopted by a law
enforcement agency, that would expose a peace officer to discipline. In order for a
person to be convicted under section 609.505, subdivision 2, he or she must knowingly
report a specific act or omission by a peace officer that may subject the peace officer to
disciplinary action. For instance, under the statute, a knowingly false accusation that a
peace officer engaged in a specific act of illegal racial profiling may be punishable,
whereas a statement that “a peace officer is a scoundrel” would never be criminal.
Accordingly, we hold that section 609.505, subdivision 2, does not pose a threat of
“official suppression of ideas.” R.A.V., 505 U.S. at 390. We thus conclude that our
construction of section 609.505, subdivision 2, meets the third R.A.V. exception.
19
As we concluded earlier, the speech that is criminalized by section 609.505,
subdivision 2, as we have narrowly construed it, falls squarely within the category of
defamation.
34
4.
We note here that reliance on Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005),
cited by Crawley and the court of appeals, is misplaced. In Chaker, the United States
Court of Appeals for the Ninth Circuit decided that a California statute prohibiting false
reports of police misconduct impermissibly discriminated on viewpoint because, while
the government could prohibit false speech during misconduct investigations, it could not
prohibit only false speech that implicated officers. 428 F.3d at 1227 (finding Cal. Penal
Code § 148.6 unconstitutional under R.A.V.). Chaker is unpersuasive for several reasons.
Most importantly, while the Chaker court applied the R.A.V. rule, it did not mention—let
alone analyze—the exceptions announced by the Supreme Court. See Chaker, 428 F.3d
at 1227-28. Moreover, in Chaker, the Ninth Circuit defined the unprotected speech at
issue to be “knowingly false speech”—a category that has been since questioned by
federal appellate courts in more recent decisions. Id. at 1228; see Alvarez, 132 S. Ct. at
2545 (plurality opinion) (“[F]alsity alone may not suffice to bring the speech outside the
First Amendment.”); 281 Care Comm. v. Arneson, 638 F.3d 621, 633-34 (8th Cir. 2011)
(declining to recognize “knowingly false campaign speech” as categorically unprotected
in absence of Supreme Court precedent).
IV.
Because we construe section 609.505, subdivision 2, narrowly to reach only
defamatory speech not protected by the First Amendment, and because the statute falls
within two of the R.A.V. exceptions to the constitutional prohibition against content
discrimination within a category of unprotected speech, we conclude that section
35
609.505, subdivision 2 is constitutional. Accordingly, we reverse the judgment of the
court of appeals that the statute is unconstitutional. But because Crawley was convicted
under section 609.505, subdivision 2, before our narrowing construction of the statute, we
reverse her conviction and remand for a new trial.
Reversed and remanded.
36
DISSENT
STRAS, Justice (dissenting).
The question presented by this case is whether Minn. Stat. § 609.505, subd. 2
(2010), is a law unconstitutionally “abridging the freedom of speech” under the First
Amendment to the United States Constitution. The court concludes that subdivision 2
fully comports with the Constitution, but does so only after rewriting the statute.
Construing the statute as written, I would hold that subdivision 2 is an unconstitutional
content- and viewpoint-based restriction on core First Amendment speech. Therefore, I
respectfully dissent.
I.
In answering the constitutional question presented by this case, the first step is to
determine the kind and extent of speech regulated by Minn. Stat. § 609.505, subd. 2.
Subdivision 2 states as follows:
Whoever informs, or causes information to be communicated to, a peace
officer, whose responsibilities include investigating or reporting police
misconduct, that a peace officer, as defined in section 626.84, subdivision
1, paragraph (c), has committed an act of police misconduct, knowing that
the information is false, is guilty of a crime . . . .
Subdivision 2 requires proof of only four elements. In order to obtain a conviction, the
State must prove the defendant (1) informed or caused information to be communicated
to (2) a peace officer, whose responsibilities include investigating or reporting police
misconduct, (3) that a peace officer committed an act of police misconduct, (4) knowing
the information communicated is false. The statute is unambiguous, and it has no other
requirements.
D-1
The court largely agrees with my reading of subdivision 2. Yet, rather than
applying the statutory provision as written, the court engrafts two additional elements
onto subdivision 2 that are absent from the text of the statute. First, that a defendant must
communicate the alleged act of police misconduct to a different peace officer than the
officer against whom the misconduct is alleged. Second, that the officer receiving the
communication must reasonably understand the communication to refer to a specific
individual. The court does so to support its conclusion that subdivision 2 criminalizes
only common law defamation, an unprotected category of speech under the First
Amendment. The court’s analysis, however, forces a square peg in a round hole. And
the court concedes as much: “the statute, as written . . . , fails to fulfill the first element of
defamation: publication to a third person. The statute also fails to fulfill the fourth
element [of defamation] because it does not require the statement to be ‘of and
concerning’ a specific individual.” (Emphasis added).
In adopting a limiting construction, the court appears to rely on the canon of
constitutional avoidance, which provides that, “[w]here possible,” we “should interpret a
statute to preserve its constitutionality.” Hutchinson Tech., Inc. v. Comm’r of Revenue,
698 N.W.2d 1, 18 (Minn. 2005); see also United States v. Jin Fuey Moy, 241 U.S. 394,
401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional but also grave doubts upon that score.”). However,
the canon of constitutional avoidance—like other canons of statutory construction—may
not be used to circumvent a statute’s plain meaning. See, e.g., FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009) (describing the canon of constitutional avoidance
D-2
as an “interpretive tool, counseling that ambiguous statutory language be construed to
avoid serious constitutional doubts” (emphasis added)); George Moore Ice Cream Co. v.
Rose, 289 U.S. 373, 379 (1933) (“[A]voidance of a [constitutional] difficulty will not be
pressed to the point of disingenuous evasion.”).
In this case, the court applies the canon of constitutional avoidance beyond its
permissible scope by giving subdivision 2 an unreasonable construction. 1 In fact, by
engrafting two additional elements onto the text of subdivision 2, the court effectively
rewrites the statute. The court’s decision may save the statute’s constitutionality, but it
does so at the expense of ignoring the actual words used by the Legislature. Under the
court’s application of the canon of constitutional avoidance, this court now possesses the
power to preserve, solely at our discretion, statutes that would otherwise be
unconstitutional, simply by adding our own limiting language. The court’s approach is
inconsistent with the proper, limited role of the judiciary.2 See Clark v. Martinez, 543
1
Even if the court is correct that it is not applying the canon of constitutional
avoidance to subdivision 2—a dubious proposition at best—the line of overbreadth cases
relied upon by the court still require a limiting construction to be a reasonable
interpretation of the challenged statute. See United States v. Stevens, __ U.S. __, 130 S.
Ct. 1577, 1591-92 (2010) (“[T]his court may impose a limiting construction on a statute
only if it is ‘readily susceptible’ to such a construction. We will not rewrite a . . . law to
conform it to constitutional requirements.” (quoting Reno v. Am. Civil Liberties Union,
521 U.S. 844, 884 (1997) (citations omitted) (internal quotation marks omitted)).
2
The statute upheld by the court in this case scarcely resembles the statute enacted
by the Legislature. The court evaluates the following statute for its compliance with the
First Amendment (with the court’s alterations in italics):
Whoever informs, or causes information to be communicated to, a peace
officer, whose responsibilities include investigating or reporting police
(Footnote continued on next page.)
D-3
U.S. 371, 385 (2005) (“The canon of constitutional avoidance comes into play only
when, after the application of ordinary textual analysis, the statute is found to be
susceptible of more than one construction; and the canon functions as a means of
choosing between them.”); United States v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)
(prohibiting the application of the canon of constitutional avoidance when a statute is
unambiguous and the unambiguous interpretation results in the unconstitutionality of the
statute).
The court justifies its approach by relying primarily on two decisions of the
Supreme Court of the United States. In one, the Court examined the constitutionality of a
state statute regulating offensive speech, Chaplinsky v. New Hampshire, 315 U.S. 568
(1942), and in the other, the constitutionality of a municipal ordinance criminalizing biasmotivated expression, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). In answering the
First Amendment questions presented in each case, the Court deferred to the limiting
(Footnote continued from previous page.)
misconduct, that another peace officer, as defined in section 626.84,
subdivision 1, paragraph (c), who can be reasonably identified from the
statement or its context, has committed an act of police misconduct,
knowing that the information is false, is guilty of a crime . . . .
It is one thing to apply a narrowing construction to an ambiguous statute with two or
more reasonable constructions to avoid constitutional infirmity. But it is entirely another
to add language to an otherwise unambiguous statute. As we have stated, “[i]t is the
exclusive province of the [L]egislature to define by statute what acts shall constitute a
crime.” State v. Forsman, 260 N.W.2d 160, 164 (Minn. 1977). It is our job, by contrast,
to interpret, apply, and evaluate criminal statutes as written, not to rewrite legislative
enactments to ensure that they survive constitutional scrutiny. See Premier Bank v.
Becker Dev., LLC, 785 N.W.2d 753, 760 (Minn. 2010) (stating that our rules of
construction prohibit us from adding words to a statute that “are purposely omitted or
inadvertently overlooked”).
D-4
constructions given to those statutes by each state’s highest court. See R.A.V., 505 U.S. at
381; Chaplinsky, 315 U.S. at 572. It is therefore true that our construction of a state
statute binds the Supreme Court. See, e.g., Johnson v. Fankell, 520 U.S. 911, 916 (1997)
(“Neither this Court nor any other federal tribunal has any authority to place a
construction on a state statute different from the one rendered by the highest court of the
State.”). But just because the Supreme Court must defer to our interpretation of a state
statute does not mean that we should rewrite a criminal statute to avoid a difficult
constitutional question.3 To my knowledge, the Court has never suggested that the
constitutional avoidance canon permits courts to engraft two new elements onto a
criminal offense. To the contrary, the Court has recognized that employing the canon to
3
The court’s opinion leaves the reader with the impression that the Supreme Court
has encouraged state courts to rewrite statutes to survive First Amendment scrutiny.
Nothing could be further from the truth. In fact, the Supreme Court has disapproved of
the practice by state courts of rewriting, rather than adopting a reasonable limiting
construction of, statutes and ordinances. See Shuttlesworth v. City of Birmingham, 394
U.S. 147, 153 (1969); see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-17 &
nn.14-15 (1975) (concluding that an ordinance was overbroad under the First
Amendment because it was not “susceptible of a narrowing construction” and any
limiting construction would require “a rewriting of the ordinance”). In one such case, the
Supreme Court recognized a state court’s interpretation of an ordinance as binding, as it
had to, but was less than convinced by the unduly narrow interpretation given to the
ordinance by the Supreme Court of Alabama:
It is said, however, that no matter how constitutionally invalid the
Birmingham ordinance may have been as it was written, nonetheless the
authoritative construction that has now been given it by the Supreme Court
of Alabama has so modified and narrowed its terms as to render it
constitutionally acceptable. . . . [I]n affirming the petitioner’s conviction in
the present case, the Supreme Court of Alabama performed a remarkable
job of plastic surgery upon the face of the ordinance.
Shuttlesworth, 394 U.S. at 153.
D-5
rewrite an otherwise unambiguous statute constitutes “a serious invasion of the legislative
domain.” United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1592 (2010) (citation
omitted) (internal quotations marks omitted); see also United States v. Reese, 92 U.S.
214, 221 (1875) (recognizing that judicially modifying a statute improperly substitutes
“the judicial for the legislative department of the government”).
In contrast to the court’s approach, I would not rewrite subdivision 2 to fit into
common law defamation in order to evade constitutional scrutiny. Instead, I would give
the statute its plain and ordinary meaning.
Accordingly, the relevant constitutional
question is not whether the State may regulate defamation, but whether the State may
broadly criminalize knowingly false statements regarding police misconduct.
II.
Answering that question first requires determining the applicable standard of
review. The threshold step in determining the standard of review is to decide whether the
statute regulates protected or unprotected speech.
If the statute regulates protected
speech in a non-content-neutral fashion, then the court must subject the statute to strict
scrutiny, which requires the State to show a compelling interest justifying the statute and
that the statute is narrowly tailored to achieve that compelling interest. See Brown v.
Entm’t Merchs. Ass’n, __ U.S. __, 131 S. Ct. 2729, 2738 (2011); United States v. Playboy
Entm’t Grp., Inc., 529 U.S. 803, 813 (2000). On the other hand, if the statute regulates
unprotected speech in a non-content-neutral fashion—which is the conclusion the court
D-6
reaches about subdivision 2—then the court must apply the framework of R.A.V. v. City
of St. Paul, 505 U.S. 377 (1992), to determine the statute’s constitutionality.4
A.
The First Amendment states that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend I. These words are broad, categorical, and
arguably absolute. Yet the Supreme Court has recognized that certain categories of
speech—including “[incitement]; obscenity; defamation; speech integral to criminal
conduct; so-called ‘fighting words’; child pornography; fraud; true threats; and speech
presenting some grave and imminent threat the government has a power to prevent”—are
unprotected. United States v. Alvarez, __ U.S. __, 132 S. Ct. 2537, 2544 (2012) (plurality
opinion) (internal citations omitted); see also United States v. Stevens, __ U.S. __, 130 S.
Ct. 1577, 1584 (2010) (including a similar list). It is undisputed that subdivision 2 does
not regulate expression that is “directed to inciting or producing imminent lawless
action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), is obscene, Roth v. United
States, 354 U.S. 476, 485 (1957), is integral to criminal conduct, Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 498 (1949), is fraudulent, Illinois ex rel. Madigan v.
Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003), qualifies as fighting words,
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), is a true threat, Watts v. United
States, 394 U.S. 705, 708 (1969) (per curiam), or is speech presenting a grave and
4
The other possibilities are that the statute regulates protected or unprotected
speech in a content-neutral fashion, but neither the court nor the parties assert that
subdivision 2 is content-neutral.
D-7
imminent threat, Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931). Nor, as I
conclude above, is subdivision 2 limited solely to the regulation of defamatory speech.
1.
Subdivision 2 criminalizes knowingly false statements of fact.
See State v.
Crawley, 789 N.W.2d 899, 903 (Minn. App. 2010) (referring to the category of speech
criminalized by subdivision 2 as the “intentional lie” (emphasis omitted)). The threshold
constitutional question is whether such statements are categorically unprotected under the
First Amendment.
In United States v. Alvarez, the Supreme Court answered that question, concluding
that knowing falsehoods are not a separate category of unprotected speech. Specifically,
the question in Alvarez was the constitutionality of the Stolen Valor Act, 18 U.S.C.
§ 704(b), (c) (2006), which made it a crime for a person to falsely claim the receipt of a
military decoration or medal. Alvarez, 132 S. Ct. at 2542 (plurality opinion). No opinion
garnered a majority of the Court, but six Justices agreed that knowing falsehoods are not
categorically unprotected.
See id. at 2546-47; see also id. at 2553 (Breyer, J.,
concurring). The plurality (authored by Justice Kennedy and joined by Chief Justice
Roberts and Justices Ginsburg and Sotomayor) squarely “reject[ed] the notion that false
speech should be in a general category that is presumptively unprotected.” Id. at 2546-47
(plurality opinion). Although the Court had occasionally suggested that false statements
of fact are entitled to lesser First Amendment protection, the plurality rejected a
categorical approach because “some false statements are inevitable if there is to be an
open and vigorous expression of views in public and private conversation.” Id. at 2544.
D-8
To hold otherwise, the plurality explained, “would endorse government authority to
compile a list of subjects about which false statements are punishable.” Id. at 2547.
Such broad and far-reaching governmental power would have “no clear limiting
principle,” resembling Oceania’s Ministry of Truth from George Orwell’s 1984. Id.
The opinion concurring in the judgment (authored by Justice Breyer and joined by
Justice Kagan), which is arguably the binding rationale of Alvarez, largely eschewed a
“strict categorical analysis.” Id. at 2551 (Breyer, J., concurring); see also Marks v.
United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and
no single rationale explaining the result enjoys the assent of five Justices, the holding of
the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds . . . .” (citation omitted) (internal quotation marks
omitted)). Yet the reasoning of Justice Breyer’s concurring opinion makes clear that
knowing falsehoods are entitled to First Amendment protection. Indeed, the concurrence
explained that the Court’s prior statements on the lesser First Amendment value of false
statements could not be read to “mean no protection at all” because such statements can
“serve useful human objectives” in social, public, technical, philosophical, and scientific
contexts. Alvarez, 132 S. Ct. at 2553 (internal quotation marks omitted). Moreover, in
applying intermediate scrutiny rather than the R.A.V. framework applicable to
categorically unprotected speech, the concurrence necessarily concluded that false
statements are entitled to some First Amendment protection. See id. at 2552 (applying
intermediate scrutiny in reviewing the Stolen Valor Act); see also infra n.6 (discussing
Justice Breyer’s application of intermediate scrutiny in Alvarez).
D-9
Accordingly, we are bound by the conclusion of a majority of Justices in Alvarez
that knowing falsehoods are not categorically unprotected under the First Amendment.
See State v. Brist, 812 N.W.2d 51, 54 (Minn. 2012) (“Supreme Court precedent on
matters of federal law, including the interpretation and application of the United States
Constitution, is binding on this court.”).
2.
Moreover, even if some of the speech criminalized by Minn. Stat. § 609.505, subd.
2, is constitutionally unprotected, the statute nevertheless risks First Amendment harm
because it has a “chilling effect” on other, more valuable protected speech.
Phila.
Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986); see also Alvarez, 132 S. Ct. at
2553 (Breyer, J., concurring) (discussing the need for “breathing room” for more
valuable speech); id. at 2563 (Alito, J., dissenting) (explaining the need to “extend a
measure of strategic protection [to unprotected speech] in order to ensure sufficient
breathing space for protected speech” (citation omitted) (internal quotation marks
omitted)). Put differently, subdivision 2 regulates within an area of expression that lies at
the heart of the First Amendment—speech that is critical of the government—and fails to
provide sufficient “ ‘breathing space’ ” to core, protected expression. Hepps, 475 U.S. at
778 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964)).
As the Supreme Court has recognized, an animating principle of the First
Amendment was to limit the government’s ability to suppress dissident and minority
expression. See Roth, 354 U.S. at 484; see also Citizens United v. FEC, __ U.S. __, 130
S. Ct. 876, 898 (2010) (“Premised on mistrust of governmental power, the First
D-10
Amendment stands against attempts to disfavor certain subjects or viewpoints.”).
Substantial historical evidence also supports the view that, at the time the First
Amendment was ratified, the public understood the freedom of speech and the freedom of
the press to encompass an unrestrained right of free discussion of government affairs and
public officials. See Zechariah Chafee, Free Speech in the United States 19 (1941); see
also Burson v. Freeman, 504 U.S. 191, 196 (1992) (plurality opinion) (“ ‘[T]here is
practically universal agreement that a major purpose of th[e] [First] Amendment was to
protect the free discussion of governmental affairs.’ ” (quoting Mills v. Alabama, 384
U.S. 214, 218 (1966))).
Commentators have observed that the First Amendment was responsive in part to
the law of seditious libel, as developed by the English Court of the Star Chamber, which
made it a crime for citizens to publish or make comments that were critical of the King.
See Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.1.1, at 923 (3d
ed. 2006); Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union 342-43 (1868). Truth
was not a defense to a charge of seditious libel. In fact, the more truth associated with the
libelous statement, the greater the libel and the harm to the government. See John E.
Nowak & Ronald Rotunda, Constitutional Law § 16.3, at 1266 (8th ed. 2010). Based on
that history, one commentator observed that the First Amendment was ratified in part “to
wipe out the common law of sedition, and make further prosecutions for criticism of the
government, without any incitement to law-breaking, forever impossible in the United
States of America.” Chafee, supra, at 21; see also Beauharnais v. Illinois, 343 U.S. 250,
D-11
272 (1952) (Black, J., dissenting) (“[T]he First Amendment repudiated seditious libel for
this country.”).
Professor Chafee’s account of the First Amendment is arguably in tension with the
Sedition Act of 1798, which Congress passed just 7 years after the First Amendment’s
ratification. The Sedition Act criminalized the publication of “false, scandalous and
malicious writing or writings against the government of the United States, or either house
of the Congress of the United States, or the President of the United States, with intent to
defame . . . or to bring them . . . into contempt or disrepute.” Sedition Act of 1798, ch.
74, 1 Stat. 596. Following its passage, however, the Act met widespread, vociferous
opposition—including by Thomas Jefferson and First Amendment drafter James
Madison—“reflect[ing] a broad consensus that the Act, because of the restraint it
imposed upon criticism of government and public officials, was inconsistent with the
First Amendment.” New York Times Co., 376 U.S. at 276; see also id. at 274 (noting that
the Virginia Resolutions of 1798, drafted by Madison and adopted by the General
Assembly of Virginia, protested that the Act was “levelled against the right of freely
examining public characters and measures, and of free communication among the people
thereon, which has ever been justly deemed the only effectual guardian of every other
right” (citation omitted)). Indeed, Congress later repaid fines levied in the prosecution of
the Sedition Act on the ground that the Act itself was unconstitutional. See id. at 276
(citing Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R. Rep. No. 86, 26th
Cong., 1st Sess. (1840)).
The Court therefore declared in New York Times that,
D-12
“[a]lthough the Sedition Act was never tested in [the Supreme] Court, the attack upon its
validity has carried the day in the court of history.” Id.
The point of the foregoing discussion is not to conclusively resolve the historical
debate over the primary motivation animating the ratification of the First Amendment,
but rather to highlight the indisputable principle that criticism of the government—and
those who run it—is at the core of the First Amendment. The Supreme Court has
recognized as much:
“[c]riticism of government is at the very center of the
constitutionally protected area of free discussion[, and] [c]riticism of those responsible
for government operations must be free, lest criticism of government itself be penalized.”
Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Put differently, “[i]t is vital to our form of
government that citizens and press alike be free to discuss and, if they see fit, impugn the
motives of public officials.” Janklow v. Newsweek, Inc., 788 F.2d 1300, 1305 (8th Cir.
1986); see also Snyder v. Phelps, __ U.S. __, 131 S. Ct. 1207, 1215 (2011) (“[S]peech
concerning public affairs is more than self-expression; it is the essence of selfgovernment.” (citation omitted)). The statute at issue here, Minn. Stat. § 609.505, subd.
2, punishes precisely the type of speech that is at the “very center” of the First
Amendment: statements critical of government officials—in this case, peace officers. Cf.
Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (collecting cases holding that police
officers are considered public officials under the First Amendment).
Because subdivision 2 regulates within an area of core First Amendment
expression, it risks chilling valuable speech unless it provides sufficient breathing space
to prevent self-censorship or suppression. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342
D-13
(1974). That is, in order to prevent the chilling of truthful speech on a matter of public
concern—police misconduct—subdivision 2 must contain either “[e]xacting proof
requirements,” Madigan, 538 U.S. at 620, such as a heightened mens rea, New York
Times Co., 376 U.S. 279-80; a showing of specific harm, S.F. Arts & Athletics, Inc. v.
U.S. Olympic Comm., 483 U.S. 522, 539-41 (1987); or a showing of materiality, United
States v. Lepowitch, 318 U.S. 702, 704 (1943); or contain some other “limitations of
context” that help to ensure that “the statute does not allow its threat of . . . criminal
punishment to roam at large,” Alvarez, 132 S. Ct. at 2555 (Breyer, J., concurring). Given
the breadth and practical application of subdivision 2, the statute fails to provide
sufficient breathing space for core First Amendment speech.
The key risk posed by subdivision 2—a criminal statute—is that legitimate,
truthful criticism of public officials will be suppressed for fear of unwarranted
prosecution. “[E]ven minor punishments can chill protected speech.” Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 244 (2002); see also Alexander v. United States, 509
U.S. 544, 565 (1993) (Kennedy, J., dissenting) (“There can be little doubt that regulation
and punishment of certain classes of unprotected speech have implications for other
speech that is close to the proscribed line, speech which is entitled to the protections of
the First Amendment.”). Thus, the mere threat of prosecution may cause some would-be
government critics to refrain from voicing their legitimate criticism, “because of doubt
whether [their statement] can be proved in court or fear of the expense of having to do
so.” New York Times Co., 376 U.S. at 279; cf. James Madison, Report on the Virginia
Resolutions, Jan. 1800, in 5 The Founders’ Constitution 141, 145 (Philip B. Kurland &
D-14
Ralph Lerner, eds., 1987) (“[W]here simple and naked facts alone are in question, there is
sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a
prosecution from the Government with the full and formal proof necessary in a court of
law.”).
To be sure, subdivision 2’s scienter requirement—that the defendant must know
that the statement of police misconduct is false—reduces the risk that a person would
suppress a truthful report of police misconduct. But, as the Court has explained, the
threat of criminal punishment creates a strong chilling effect, and a scienter requirement
may be an insufficient “antidote to the inducement to . . . self-censorship.” Gertz, 418
U.S. at 342. In Alvarez, for example, the Court invalidated the Stolen Valor Act on the
ground that there was an unreasonable risk of chilling that was “not completely
eliminated” by the statute’s heightened scienter requirement because “a speaker might
still be worried about being prosecuted for a careless false statement.” Alvarez, 132 S.
Ct. at 2555 (Breyer, J., concurring) (emphasis in original); see also id. at 2545 (plurality
opinion) (explaining that the First Amendment scienter requirement in defamation and
fraud cases should not be relied upon to restrict speech; instead, it “exists to allow more
speech, not less”). In particular, Justice Breyer was concerned about the potentially farreaching applicability of the Stolen Valor Act, which criminalized lies told in “family,
social, or other private contexts,” where little harm would result, and in political contexts,
where the risk of selective prosecution is high. Id. at 2555 (Breyer, J., concurring).
Like the Stolen Valor Act, the potentially far-reaching applicability of Minn. Stat.
§ 609.505, subd. 2, risks significant First Amendment harm. Subdivision 2 authorizes
D-15
punishment not only for a person who directly reports police misconduct, but also for a
person who “causes information [that a peace officer has committed an act of police
misconduct] to be communicated to[] a peace officer.” Minn. Stat. § 609.505, subd. 2
(emphasis added).
The required mental state for “caus[ing] information to be
communicated to a peace officer” is not before us in this case, but a privately spoken or
written statement could subject a speaker to punishment under subdivision 2. In fact,
under subdivision 2’s plain language, a speaker who merely repeats a false report of
police misconduct told to him by a friend or family member may be subject to
prosecution if the statement is later communicated to an officer whose responsibilities
include investigating or reporting police misconduct. Put differently, subdivision 2 does
not require a person to communicate the false statement directly to a peace officer, which
means that a false statement about police misconduct made on the news, in the privacy of
one’s home, or at a social club could potentially subject a person to criminal liability.
Subdivision 2 is therefore similar to the type of far-reaching regulation of speech that the
Court struck down in Alvarez. See Alvarez, 132 S. Ct. at 2547 (plurality opinion) (“The
statute seeks to control and suppress all false statements on this one subject in almost
limitless times and settings.”); id. at 2555 (Breyer, J., concurring) (explaining that the
Stolen Valor Act did not have “limiting features” and criminalized speech in a wide
variety of contexts).
In fact, subdivision 2 creates a greater risk of chilling protected speech than the
now-invalidated Stolen Valor Act. Unlike the Stolen Valor Act—which regulated “easily
verifiable facts,” Alvarez, 132 S. Ct. at 2552 (Breyer, J., concurring)—subdivision 2
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regulates false statements that are not easily or objectively verifiable. The government
can readily verify the receipt (or non-receipt) of a military honor or medal, but resolution
of a report of police misconduct is far more complicated and will often turn on disputed
and objectively unverifiable facts. In such circumstances, subdivision 2 may cause some
complainants to decide that the risk associated with criminal prosecution outweighs the
benefit of speaking out against police misconduct, particularly when a speaker justifiably
is concerned about “being prosecuted for a careless false statement, even if he does not
have the intent required to render him liable.” Alvarez, 132 S. Ct. at 2555 (Breyer, J.,
concurring). Thus, subdivision 2 creates exactly the type of chilling effect that the First
Amendment guards against: a danger that a potential complainant will suppress a
statement, believed to be true, for fear that the statement will later be proven false. See
Alvarez, 132 S. Ct. at 2553 (Breyer, J., concurring) (noting that a criminal statute must
provide sufficient breathing space by “reducing an honest speaker’s fear that he may
accidentally incur liability for speaking”).
Finally, even the three dissenters in Alvarez (Justices Alito, Scalia, and Thomas)
likely would be skeptical about the constitutionality of subdivision 2. The Alvarez
dissent recognized that “there are broad areas in which any attempt by the state to
penalize purportedly false speech would present a grave and unacceptable danger of
suppressing truthful speech.” Alvarez, 132 S. Ct. at 2564 (Alito, J., dissenting). For
instance, laws regulating false expression near the core of the First Amendment—such as
“false statements about philosophy, religion, history, the social sciences, the arts, and
other matters of public concern”—would threaten the chilling “of other, valuable
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speech.” Id. (emphasis added). Hence, even the Alvarez dissenters acknowledged that
false speech on matters of public concern is entitled to protection under the First
Amendment.5 Id.; cf. Snyder, 131 S. Ct. at 1219 (setting aside a jury verdict finding tort
liability because the hate speech at issue was on a matter of public concern). As the
dissent succinctly stated, “it is perilous to permit the state to be the arbiter of truth.”
Alvarez, 132 S. Ct. at 2564.
5
The strongest argument in favor of the constitutionality of subdivision 2 is that
each of the opinions in Alvarez discussed the potential constitutionality of 18 U.S.C.
§ 1001 (2006), which makes it a federal crime to “knowingly and willfully” make any
“materially false, fictitious, or fraudulent statement or representation” in “any matter
within the jurisdiction of the executive, legislative, or judicial branch of the Government
of the United States.” See Alvarez, 132 S. Ct. at 2546 (plurality opinion); id. at 2554
(Breyer, J., concurring); id. at 2561 (Alito, J., dissenting). Even so, Alvarez’s discussion
of section 1001 does not lead to a conclusion that subdivision 2 is constitutional. First,
none of the opinions explicitly assert that section 1001 passes First Amendment scrutiny.
Rather, Justice Breyer’s concurring opinion in Alvarez merely discusses the differences
between section 1001 and the Stolen Valor Act, while the plurality and the dissent
assume the constitutionality of section 1001 in analyzing the constitutionality of the
Stolen Valor Act. See Alvarez, 132 S. Ct. at 2540 (plurality opinion) (rejecting the
government’s argument that the assumed constitutionality of section 1001 “lead[s] to the
broader proposition that false statements are unprotected when made to any person, at
any time, in any context”); id. at 2554 (Breyer, J., concurring) (discussing the fact that
section 1001 includes harm and materiality requirements, but rendering no opinion on the
constitutionality of the statute); id. at 2561 (Alito, J., dissenting) (assuming the
constitutionality of section 1001). Second, by its terms, section 1001 is limited to
“materially” false and fraudulent statements, a limitation not present in subdivision 2.
See id. at 2554 (Breyer, J., concurring) (discussing the importance of section 1001’s
materiality requirement). Third, section 1001 regulates all materially false and fraudulent
statements made to government officials within the jurisdiction of the executive,
legislative, or judicial branches, no matter the content of the statements or the viewpoints
that are expressed. In contrast, subdivision 2 is a content-based regulation that is
viewpoint discriminatory. See infra Parts II.B, IV.
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B.
Having concluded that the speech regulated by Minn. Stat. § 609.505, subd. 2, is
entitled to protection under the First Amendment, the next question is whether
subdivision 2 is a content-based or content-neutral regulation of speech. If the statute
regulates speech based on content, then it is unconstitutional unless it survives strict
scrutiny.
See Playboy Entm’t Grp., Inc., 529 U.S. at 813.
On the other hand,
“regulations that are unrelated to the content of speech are subject to an intermediate
level of scrutiny.” See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).
A statute regulates content when it “singles out speech of a particular content and
seeks to prevent its dissemination completely.” Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, 425 U.S. 748, 771 (1976). I agree with the court that subdivision 2 is
a content-based restriction on speech because criminality under the statute turns entirely
on the subject matter of the speech. The statute does not apply broadly across all
categories of false speech. To the contrary, it singles out false speech with particular
content: false speech communicating police misconduct. See also Republican Party of
Minn. v. White, 536 U.S. 765, 774 (2002) (stating that a provision in the Minnesota Code
of Judicial Conduct preventing judicial candidates from announcing their views on
disputed political or legal issues was a content-based restriction on speech). For that
reason, I would conclude that subdivision 2 is a content-based restriction on speech, and
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is therefore unconstitutional unless it can survive strict scrutiny.6 See Playboy Entm’t
Grp., Inc., 529 U.S. at 813.
III.
Strict scrutiny is a “demanding standard.” Brown v. Entm’t Merchs. Ass’n, __
U.S. __, 131 S. Ct. 2729, 2738 (2011). It requires the State to prove that Minn. Stat.
§ 609.505, subd. 2, furthers a compelling government interest and is narrowly tailored to
achieve that interest. See Citizens United v. FEC, __ U.S. __, 130 S. Ct. 876, 898 (2010).
The State asserts that the sole purpose of subdivision 2 is to “reduce the adverse
impact on public safety occasioned by the diversion of investigative resources away from
resolving legitimate complaints.” The State’s interest in preventing the unwarranted
expenditure or diversion of valuable public resources is no doubt a legitimate government
6
In Alvarez, Justice Breyer analyzed the Stolen Valor Act under “intermediate
scrutiny,” which requires a proportional “fit” between the government interest and the
restriction on speech. 132 S. Ct. at 2551-52 (Breyer, J., concurring) (citing Bd. of
Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). Nonetheless,
intermediate scrutiny is inapplicable here for two reasons. First, Justice Breyer’s
concurring opinion does not reject the Court’s longstanding rule that content-based
regulations of speech are subject to strict scrutiny. Instead, Justice Breyer applied
intermediate scrutiny without addressing whether the Stolen Valor Act was a contentdiscriminatory regulation. Even if Justice Breyer’s opinion had garnered the five or more
votes necessary to constitute a majority opinion, we cannot assume that the Court has
abandoned its content-based/content-neutral distinction sub silentio. See Agostini v.
Felton, 521 U.S. 203, 237 (1997) (explaining that the Supreme Court does not implicitly
overrule its own precedent, even when five or more Justices express doubt about the
precedent in question). Second, Justice Breyer, like the dissenters in Alvarez, concluded
that when the government regulates speech at or near the core of the First Amendment,
strict scrutiny applies to laws regulating false statements. See Alvarez, 132 S. Ct. at 2552
(Breyer, J., concurring). As I conclude in Part II.A.2, supra, subdivision 2 regulates
speech at the core of the First Amendment: statements critical of the government and
government officials.
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interest, and may even be a compelling one. But even assuming that subdivision 2
furthers a compelling government interest, the statute is unconstitutional because it is not
narrowly tailored. See R.A.V. v. City of St. Paul, 505 U.S 377, 395-96 (1992).
First, subdivision 2 is unnecessarily overinclusive; the statute punishes more
speech than is necessary to further the statute’s asserted justification. See Brown, 131 S.
Ct. at 2741 (invalidating an overinclusive statute as incompatible with the narrow
tailoring required by strict scrutiny).
Subdivision 2 proscribes all knowingly false
statements about police misconduct that are communicated to a peace officer whose
responsibilities include investigating complaints of police misconduct, even if the
statements at issue do not cause the government to divert any investigative resources. Put
differently, even those false police reports that are palpably untrue, and do not result in an
expenditure of public resources, would violate subdivision 2. As a result, subdivision 2 is
an overly broad solution for a narrow problem.
Second, subdivision 2 is unnecessarily underinclusive.
See id. at 2740
(invalidating a statute regulating violent video games based in part on its
underinclusiveness); City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (“[A] regulation of
speech may be impermissibly underinclusive.” (emphasis omitted)). Subdivision 2 is
underinclusive because it singles out and discriminates against speech based on its
content. When the government passes a statute discriminating against the content of
certain types of speech, the existence of less discriminatory alternatives “undercut[s]
significantly” the government’s defense of the statute. Boos v. Barry, 485 U.S. 312, 329
(1988).
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Accordingly, subdivision 2 can survive strict scrutiny only if the State is able to
demonstrate that its decision to single out false statements regarding the misconduct of
peace officers is “actually necessary” to achieve its asserted compelling interest. Brown,
131 S. Ct. at 2738. The State argues that “[t]here are no adequate content-neutral
alternatives for deterring the needless diversion of public safety resources to investigate
false reports of crimes.” The State’s argument falls flat because less discriminatory
alternatives already exist. For example, Minn. Stat. § 609.505, subd. 1 (2010), prohibits
any person from providing knowingly false information regarding the conduct of others
to an on-duty peace officer.7 The State does not explain how subdivision 1—which
prohibits all knowingly false statements regarding the conduct of others—fails to
advance the State’s interest in preventing the unwarranted diversion of investigative
resources. Further, the State could reduce the adverse impact of false reports of police
misconduct by punishing truly defamatory statements under Minn. Stat. § 609.765
(2010), which actually prohibits criminal defamation. The “dispositive question” here is
whether subdivision 2’s content discrimination is “reasonably necessary to achieve [the
State’s] compelling interests; it plainly is not.” R.A.V., 505 U.S. at 395. A statute “not
7
Minn. Stat. § 609.505, subd. 1, provides:
Whoever informs a law enforcement officer that a crime has been
committed or otherwise provides information to an on-duty peace officer,
knowing that the person is a peace officer, regarding the conduct of others,
knowing that it is false and intending that the officer shall act in reliance
upon it, is guilty of a misdemeanor. A person who is convicted a second or
subsequent time under this section is guilty of a gross misdemeanor.
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limited to the [dis]favored topics . . . would have precisely the same beneficial effect.”
Id. at 396. Therefore, subdivision 2 fails strict scrutiny.
IV.
Subdivision 2 also fails to survive constitutional scrutiny because, as the court of
appeals observed, the statute is viewpoint discriminatory. State v. Crawley, 789 N.W.2d
899, 905 (Minn. App. 2010). Indeed, regardless of whether subdivision 2 regulates
defamatory speech or knowingly false statements, subdivision 2 is unconstitutional
because it is viewpoint discriminatory. See Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 830 (1995) (explaining that viewpoint discrimination “is presumed
impermissible”); see also Morse v. Frederick, 551 U.S. 393, 436 (2007) (Stevens, J.,
dissenting) (stating that a viewpoint-discriminatory statute is “presumed to be
unconstitutional” (citation omitted)).
Viewpoint discrimination represents a particularly “egregious” form of content
discrimination. Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 281 (2d Cir. 1997)
(citation omitted) (internal quotation marks omitted). When the government engages in
viewpoint discrimination, it goes beyond mere regulation of subject matter and regulates
speech based upon the particular position or point of view that the speaker wishes to
express. See Rosenberger, 515 U.S. at 829. Absent compelling justification, punishment
of speech based on the speaker’s point of view is a “blatant” violation of the First
Amendment.
Id. at 829; see Morse, 551 U.S. at 436 (Stevens J., dissenting)
(“[C]ensorship that depends on the viewpoint of the speaker[] is subject to the most
rigorous burden of justification.”).
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An example of viewpoint-discriminatory speech regulation occurred in R.A.V., a
case in which the Supreme Court examined a St. Paul ordinance that targeted “fighting
words” that the speaker “knows or has reasonable grounds to know arouses anger, alarm
or resentment in others on the basis of race, color, creed, religion or gender.” 505 U.S. at
380. The Court held the ordinance facially unconstitutional because it was content- and
viewpoint-discriminatory, and it failed strict scrutiny. In explaining why the challenged
law was viewpoint discriminatory, the Court observed that the law selectively targeted
certain racist, sexist, and anti-religious speech for punishment, and, as a result, effectively
handicapped only one side of the debate on any number of issues:
[Under the St. Paul ordinance,] “fighting words” that do not themselves
invoke race, color, creed, religion, or gender—aspersions upon a person’s
mother, for example—would seemingly be usable ad libitum in the placards
of those arguing in favor of racial, color, etc., tolerance and equality, but
could not be used by those speakers’ opponents. One could hold up a sign
saying, for example, that all “anti-Catholic bigots” are misbegotten; but not
that all “papists” are, for that would insult and provoke violence “on the
basis of religion.” St. Paul has no such authority to license one side of a
debate to fight freestyle, while requiring the other to follow Marquis of
Queensberry rules.
Id. at 391-92.
The Supreme Court once again addressed viewpoint discrimination in Lamb’s
Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). In that case, the
Court examined the constitutionality of a New York law permitting school boards to
adopt regulations for the use of school property when school was not in session. Lamb’s
Chapel, 508 U.S. at 386. Pursuant to the law, the school board authorized the use of
school property for social, civic, or recreational uses, and for use by political
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organizations. Id. at 387. However, the board prohibited use of the school by a religious
congregation to show a six-part film series containing lectures by Dr. James Dobson
regarding Christianity and family values. Id. at 387-88. Even though the school board’s
policy applied to all religious organizations equally, the Court struck down the statute as
viewpoint discriminatory. Id. at 393. The problem, the Court stated, was that other films
about family values shown by social, civic, or recreational organizations were
permissible under the school board’s policy, while the policy prohibited a religious
organization’s attempt to show a film on that topic. Id. at 393-94. The policy therefore
discriminated against religious viewpoints about family values. The rule that emerged
from the case was that “the First Amendment forbids the government to regulate speech
in ways that favor some viewpoints or ideas at the expense of others.” Id. at 394 (quoting
City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)).
Like the law in R.A.V. and the policy in Lamb’s Chapel, subdivision 2
discriminates based on the viewpoint of the speaker. It criminalizes speech on only one
side of the issue of police misconduct: speech that is critical of the conduct of peace
officers. It does not prohibit, for example, a third party from using false statements of
fact to impugn the credibility of a complainant alleging police misconduct. Nor does it
prohibit any party from communicating a false statement of fact supportive of a peace
officer.
To state the issue differently, the State can prosecute an individual under
subdivision 2 for holding a sign at a rally against police brutality falsely stating that
“Officer A beat me when I was arrested,” but the State cannot prosecute someone for
holding a sign falsely stating that “Officer A has never beat a suspect.” Subdivision 2
D-25
targets for punishment only those false statements of fact that are critical of the
government; false factual statements seeking to absolve a police officer or impugn a
complainant “would seemingly be useable ad libitum.” R.A.V., 505 U.S. at 391; see also
Chaker v. Crogan, 428 F.3d 1215, 1228 (9th Cir. 2005) (concluding that a similar, but
more narrowly drafted, California statute criminalizing false complaints about police
misconduct constituted unconstitutional viewpoint discrimination).
Subdivision 2, however, is even more problematic than the laws at issue in R.A.V.
and Lamb’s Chapel because the particular viewpoint that is targeted here by subdivision
2—anti-government sentiment—is at the core of the First Amendment. See supra Part
II.A.2. Individuals who report police misconduct are directly criticizing a public official,
typically in relation to the exercise of the official’s public functions and duties.
“Suspicion that viewpoint discrimination is afoot is at its zenith when the speech
restricted is speech critical of the government,” Ridley v. Mass. Bay Transp. Auth., 390
F.3d 65, 86 (1st Cir. 2004), because “[o]ne of the prerogatives of American citizenship is
the right to criticize public men and measures,” Baumgartner v. United States, 322 U.S.
665, 673-74 (1944). Cf. Schacht v. United States, 398 U.S. 58, 63 (1970) (“[A statute]
which leaves Americans free to praise the war in Vietnam but can send persons like
Schacht to prison for opposing it, cannot survive in a country which has the First
Amendment.”).
Some commentators have observed that viewpoint-discriminatory laws regulating
protected areas of speech may be per se unconstitutional. 1 Rodney A. Smolla, Smolla
and Nimmer on Freedom of Speech § 3.11, at 3-14 to 3-15 (3d ed. 1996). Indeed, in
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Rosenberger, 515 U.S. 819, and Lamb’s Chapel, 508 U.S. 384, the Court invalidated
viewpoint-discriminatory laws without analyzing them under strict scrutiny. In this case,
I do not need to resolve the uncertainty over the applicable test for viewpointdiscriminatory laws because subdivision 2 fails strict scrutiny. See supra Part III. And,
in any event, regardless of whether viewpoint-discriminatory laws must be analyzed
under strict scrutiny, it is undisputed that viewpoint discrimination targeting criticism of
the government is exactly the type of regulation of speech that the First Amendment
forbids. Accordingly, subdivision 2 is unconstitutional regardless of the test applicable to
viewpoint-discriminatory laws under the First Amendment.
V.
For the foregoing reasons, I would hold that subdivision 2 is an unconstitutional
restriction on the freedom of speech under the First Amendment to the United States
Constitution. I would therefore affirm the court of appeals, reverse Crawley’s conviction
under Minn. Stat. § 609.505, subd. 2, and remand to the district court for conviction and
sentencing on the lesser-included offense under Minn. Stat. § 609.505, subd. 1.
ANDERSON, Paul H. (dissenting).
I join in the dissent of Justice Stras.
MEYER, Justice (dissenting).
I join in the dissent of Justice Stras.
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