by Douglas Ankney

The Supreme Court of Minnesota held that Minn. Stat. § 609.749(2)(6) (“stalking by mail”) and Minn. Stat. § 609.695(1)(3) (“mail harassment”) are facially overbroad. Juvenile defendant “A.J.B.” was convicted of stalking by mail and mail harassment stemming from a series of vicious “tweets” he simultaneously sent to “M.B.” and other individuals. M.B. was the object of the tweets. A.J.B. argued to the court of appeals that the statutes are unconstitutional. That court rejected his arguments, and the Supreme Court granted further review.

The Court observed, “The First Amendment to the United States Constitution states that ‘Congress shall make no law ... abridging the freedom of speech.’” The First Amendment applies to the states through the Fourteenth Amendment. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The First Amendment means the government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content. Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564 (2002).

But there is a point where First Amendment protections end and government regulation of expression is permitted. Unprotected expressive conduct or speech includes: incitement to lawless actions; obscenity; defamation; speech integral to criminal conduct; fighting words; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has power to prevent. United States v. Alvarez, 567 U.S. 709 (2012). These principles apply with equal force to speech and expressive conduct on the Internet. Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).

In deciding an overbreadth challenge, the courts first construe the meaning of the challenged statute. United States v. Williams, 553 U.S. 285 (2008). Then the courts ask whether the statute’s scope and sweep are limited to unprotected activities. State v. Hensel, 901 N.W.2d 166 (Minn. 2017). Courts may reverse convictions if the underlying criminal statute is unconstitutionally overbroad on its face, i.e., when the statute substantially “prohibits constitutionally protected activity in addition to activity that may be prohibited without offending constitutional rights.” State v. Machholz, 574 N.W.2d 415 (Minn. 1998).

But the courts may “save” an overbroad statute by applying a narrow construction or by severing problematic language. Hensel. Because of the fear of a “chilling effect” on speech, the traditional rules of standing have been altered in the context of the First Amendment to allow litigants to argue statutes are facially overbroad even when their own conduct could be lawfully prohibited. Broadrick v. Oklahoma, 413 U.S. 601 (1973). Stalking is defined as engaging “in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim ....” Minn. Stat. § 609.749(1). It is stalking by mail when the defendant “repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages through assistive devices for people with vision impairments or hearing loss, or any communication made through any available technologies or other objects[.]” Minn. Stat. § 609.749, subd. 2(6).

The Minnesota Supreme Court stated the statute would criminalize a citizen sending letters to a local council person saying, “I hate your position on gun control and I will organize a campaign to unseat you” because the letters would cause the council person to feel frightened, threatened, oppressed, etc. The statute would also prohibit a group picketing a bakery that refuses to sell wedding cakes to a gay couple because the picketing would cause the baker to feel the same effects. Since both of those actions are protected speech, the statute is overbroad — thus unconstitutional.

The mail harassment statute prohibits anyone who “with the intent to abuse, disturb, or cause distress, repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, or packages.” The Supreme Court stated the two above examples would “disturb and distress” the council person and the baker but would not “abuse” either person. Therefore, the statute is overbroad but can be saved by omitting the words “disturb, or cause distress.” The statute would then only prohibit conduct that intended to “abuse” the victim, which is unprotected conduct. But the Court couldn’t determine from the juvenile court’s decision whether A.J.B. was convicted for intending to abuse, disturb, or distress M.B. 

Accordingly, the Court reversed the stalking by mail conviction but remanded for further proceedings on the mail harassment under the narrowed statute. See: In re Welfare of A.J.B., 2019 Minn. LEXIS 318 (2019). 

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