State of Minnesota v. Irene Bernice Benjamin, A16-104

On June 30, 2015, Irene Benjamin entered the Mille Lacs Band Government Center and sought entry to a hearing; she was denied by the Solicitor General’s office.
Inside the Solicitor General’s reception area Benjamin became agitated: she shrieked D.P.’s name, used a sharp tone, yelled and screamed, banged the reception desk with her fists, and leaned inches from D.P.’s face.
Office staff and a nearby administrative assistant (C.G.) perceived the conduct as loud, disruptive, and disturbing to the workplace; C.G. called police. Officer Walker observed the shouting and arrested Benjamin.
Benjamin was charged with misdemeanor disorderly conduct under Minn. Stat. § 609.72, subd. 1(3); a jury convicted her and the district court sentenced her to six months’ unsupervised probation.
On appeal Benjamin argued her conduct was protected by the First Amendment (either as speech or expressive conduct not constituting fighting words) and that the trial court erred in its jury instruction concerning fighting words.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Benjamin’s conviction violated the First Amendment because her conduct was speech or expressive conduct not amounting to fighting words	Benjamin: her actions were protected speech/expressive conduct and did not meet the fighting-words standard, so statute cannot constitutionally apply	State: even if speech involved, conduct (yelling, banging, close physical proximity) is disorderly and not inextricably linked to a protected message, so conviction stands	Court: assumed S.L.J. narrowing could apply but held Benjamin’s speech-delivery conduct was unrelated to any protected message and sufficient evidence supported disorderly-conduct conviction
Whether the jury instruction erred by limiting the fighting-words analysis to "pure speech" and excluding expressive conduct	Benjamin: instruction misled jury to apply fighting-words only to speech, not to expressive conduct, which was error	State: no plain error because authority is split on whether S.L.J. narrowing applies to expressive conduct; defendant failed to preserve objection	Court: agreed instruction should have included expressive conduct if S.L.J. applies, but error was not plain given conflicting precedent, so no reversible error

In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978) (disorderly-conduct statute must be read to proscribe only "fighting words" when applied to pure speech)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (defines "fighting words" as those that by their utterance inflict injury or incite immediate breach of the peace)
State v. Machholz, 574 N.W.2d 415 (Minn. 1998) (conduct conveying a particularized message may be "inextricably linked" to speech and thus protected)
Baribeau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (applies Machholz; expressive conduct inextricably linked to message is protected)
State v. Peter, 798 N.W.2d 552 (Minn. App. 2011) (political protest conduct that was inextricably intertwined with message could not support disorderly-conduct conviction)
State v. T.L.S., 713 N.W.2d 877 (Minn. App. 2006) (shrieking and profanities in school were non-expressive delivery conduct and could be punished under disorderly-conduct statute)
State v. McCarthy, 659 N.W.2d 808 (Minn. App. 2003) (conviction cannot rest on words alone unless they are fighting words)
State v. Hensel, 874 N.W.2d 245 (Minn. App. 2016) (discusses conduct-based applications of disorderly-conduct statute and preserves unresolved questions reviewed by Minnesota Supreme Court)
Virginia v. Black, 538 U.S. 343 (2003) (symbolic or expressive conduct can be protected by the First Amendment)