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Minnesota Supreme Court: Coercion Statute Unconstitutionally Overbroad

Loaded on Oct. 15, 2020 by Anthony Accurso published in Criminal Legal News November, 2020, page 42

Filed under: First Amendment, rights, Vagueness/Overbreadth. Location: Minnesota.

by Anthony Accurso

In a decision issued July 22, 2020, the Supreme Court of Minnesota ruled that Minnesota Statutes Section 609.27, subd. 1(4) (2018) (“the coercion statute”) is overbroad on its face, violates the First Amendment to the U.S. Constitution, and must be struck in its entirety.

John Joseph Jorgenson was charged under the coercion statute after he contacted R.C., the father of his girlfriend J.C., and demanded $25,000 in exchange for not releasing a video of J.C. – in which she discussed smoking marijuana – to various agencies, including the Minnesota Department of Human Services, J.C.’s employer, and J.C.’s professional licensing board.

Jorgenson moved to dismiss because, among other reasons, the statute violates the First Amendment. The district court granted his motion on this ground, and the court of appeals affirmed. The State then appealed to the Minnesota Supreme Court.

The Court described the statute as follows: “Section 609.27, subdivision 1, provides that anyone who ‘orally or in writing makes’ a ‘threat’ falling into any one of six enumerated categories, and who ‘thereby causes against the other’s will to do any act or forebear doing a lawful act is guilty of coercion.’ Subdivision 1(4), one of the six categories, criminalizes ‘a threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule.’ If the threat within the meaning of section 609.27, subdivision 1 ‘fails to cause the intended act or forbearance,’ it is still a crime as an ‘attempt to coerce.’ Minn. Stat. Section 609.275 (2018)

To prevail, Jorgenson needed to “establish that a substantial number of a statute’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” State v. Hensel, 901 N.W.2d 166 (Minn. 2017). The Court found subd. 1(4) sweeps widely indeed.

First, it covers all “threats,” not just “true threats.” The former includes harm or loss against a person or their property, while the latter includes “intent to commit unlawful violence.” Virginia v. Black, 538 U.S. 343 (2003).

Second, it applies “even if the secret or deformity is true, the defamatory statement is accurate, or the facts that might lead to disgrace or ridicule are real.” Thus, the statute criminalizes statements in “the realm of social or political conflict where threats ... may nevertheless be a part of the marketplace of ideas, broadly conceived to embrace the rough competition that is so much a staple of political discourse.” United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985).

Third, the statute criminalizes speech regardless of whether the intended victim “takes – or forebears from – any action in response.”

And finally, it criminalizes speech “even if the recipient of the threat does not suffer any pecuniary loss – or any loss at all.” Thus, the statute does not require “any tangible harm or injury – not even hurt feelings.”

The Court explained that it must also “ask whether the protected speech and expressive conduct [criminalized here] make up a substantial portion of the behavior the statute prohibits compared with conduct and speech that are unprotected and may be legitimately criminalized.” Matter of Welfare of A.J.B., 929 N.W.2d 840 (Minn. 2019).

The Court, after testing some examples during oral argument, found a “multitude of examples” where a threat that has real “social value” would be criminalized by the statute. It noted that “[s]uch speech occurs in the worlds of government, business, academia, sports, and culture” and “may well be at the core of matters of public concern.” Thus, the Court found the statute criminalized a “substantial portion” of protected speech.

In sum, on its face, the statute criminalizes so much protected speech that it cannot survive scrutiny under the First Amendment. The only remaining issue was whether the Court was required to strike the whole statute or merely portions of it.

First, the State invited the Court to limit the statute’s reach by interpreting the word ‘threat’ to encompass only unlawful threats. However, the Court noted subds. 1(1)-(3) expressly use the word ‘unlawful,’ while subd. 1(4) does not. Clearly, the Legislature intended to criminalize even lawful threats, and with regards to narrowing instructions, the Court “remain[s] bound by Legislative words and intent and cannot rewrite the statute to make it constitutional.” In re Welfare of A.J.B.

And second, the suggestions by the State and in amicus briefs regarding severing portions of the statute would have required “major surgery” and still would criminalize a substantial amount of protected speech, the Court stated. Thus, as “[s]everances is not the solution,” the “remaining option is to invalidate the statute.” Hensel.

Accordingly, the Court upheld the ruling of the court of appeals by holding that Minn. Stat. Section 609.27, subd. 1(4) (2018) is facially unconstitutional. See: State v. Jorgenson, 946 N.W.2d 596 (Minn. 2020).

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