STATE OF MINNESOTA, Aрpellant, vs. Krista Ann Muccio, Respondent.
A15-1951
STATE OF MINNESOTA IN SUPREME COURT
March 8, 2017
Gildea, C.J.
Court of Appeals. Filed: March 8, 2017 Office of Appellate Courts
James C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Hastings, Minnesota, for appellant.
John G. Westrick, Westrick & McDowall-Nix, PLLP, Saint Paul, Minnesota, for respondent.
Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General.
Caroline S. Palmer, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition Against Sexual Assault.
S Y L L A B U S
Minnesota Statutes § 609.352, subd. 2a(2) (2016), prohibits an adult from participating in the electronic transmission of information relating to or describing thesexual conduct of any person, if the communication is directed at a child and the adult acts with the specific intent to arouse the sexual dеsire of any person. Minnesota Statutes § 609.352, subd. 2a(2) , has a legitimate sweep because much of the speech it regulates is not protected by the First Amendment, but rather falls under the speech integral to criminal conduct and obscenity exceptions.- Although
Minn. Stat. § 609.352, subd. 2a(2) , regulates some speech protected by the First Amendment, it is not substantially overbroad in relation to its plainly legitimate sweep and therefore does not on its face violate the First Amendment.
Reversed.
O P I N I O N
GILDEA, Chief Justice.
The question presented in this case is whether
In November 2014, a father reported to law enforcement that he found inappropriate photos on his 15-year-old son‘s iPad. The photographs depicted a female‘s bare genitals, a female naked from the neck to below the waist, and a female‘s buttocks covered by a thong. These photos were sent tо the 15-year-old through respondent Krista Muccio‘s Instagram account via a direct message. At the time, Muccio was 41 years old. In a statement to the police, the 15-year-old said that, after he received these pictures from Muccio, he sent her a picture of his genitals. Additionally, Muccio and the 15-year-old exchanged sexually explicit text messages. In these messages, Muccio and the 15-year-old detailed the sexual acts they wanted to engage in with each other, including fellatio and anal sex.
Based on the photos and messages described above, the State of Minnesota charged Muccio in count one with felony communication with a child describing sexual сonduct, in violation of
We are asked to decide whether
The statute‘s definitions help determine its sweep. A “child” is “a person 15 years of age or younger.”
On appeal, the State argues that
We begin by interpreting the statute to determine its meaning. We then address whether the statute prohibits speech that the First Amendment protects. We conclude that
I.
The first step in determining whethеr a statute is unconstitutionally overbroad is to interpret the statute. United States v. Williams, 553 U.S. 285, 293 (2008); Washington-Davis, 881 N.W.2d at 537. Our primary purpose in interpreting a statute is to “give effect to the legislature‘s intent.” State v. Crawley, 819 N.W.2d 94, 102 (Minn. 2012). When determining the meaning of a statute, we interpret words “according to their common and approved usage.”
We turn then to interpret the statute to determine its meaning. Seе Williams, 553 U.S. at 293; Washington-Davis, 881 N.W.2d at 537. The parties disagree about whether
A.
First, the parties dispute the interpretation of the phrase “engaging in communication with a child.”
The phrase “engaging in communication with a child” requires the adult to direct the prohibited content at a child. The term “engage,” used as an active verb in the statute, means “to take part: participate.” Merriam Webster‘s Collegiate Dictionary 383 (10th ed. 2001). “Communication” means “an act or instance of transmitting.” Id. at 232. Finally, in the context of the statute, the term “with” is used as “a function word to indicate the object of attention, behavior, or feeling.” Id. at 1354. Applying these definitions, we conclude that the statute prohibits an adult from participating in the electronic transmission of information relating to or describing sexual conduct if the intended target or object of the transmission is a child.
Contrary to Muccio‘s argument, therefore, the statute does not proscribe non-targeted mass electronic communications, such as posting non-targeted social-media posts
B.
We turn next to the parties’ second interpretive disagreement, which involves the statute‘s intent requirement. This part of the statute prohibits electronic communications if the adult acts “with the intent to arouse the sexual desire of any person.”
The phrase ” ‘[w]ith intent to’ . . . means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”
The Attorney General‘s reliance on the statute‘s structure to support its interpretation is also misplaced. Section 609.352, subdivision 2a, is divided into four parts. The first part identifies the methods of communication the subdivision covers and contains the requirement that the adult act with the specific intent to sexually arouse “any person.”
The Attorney General argues that the first part of subdivision 2a uses the phrase “any person” as a kind of placeholder for the object of the required intent. Because subdivision 2a, in clauses (1) to (3), goes on to prohibit specific actions the adult directs at a child, the Attorney General argues that the intent to arouse must be directed at the child as well. Based on this interpretation, the Attorney General concludes that “any person” refers only to the specific people (i.e., the adult and the child) mentioned in
The Attorney General‘s argument incorrectly interprets clauses (1) to (3) in subdivision 2a to modify the intent required by the statute. The statute contains no
C.
The third interpretive disagreement concerns the meaning of the phrase “relating to or describing sexual conduct.”
Based on the phrase “relating to or describing sexual conduct,”
The use of the terms “individual” and “complainant” does not limit the definition of “sexual conduct” to actions involving the specific adult or child. Nothing in section 609.352, subdivision 2a, suggests that the individual referenced is limited to the adult or the child involved in the communication. “Individual” is a more generic term than the specific references to an adult and child in the statute.
Likewise, the term “complainant” as used in the definition of “sexual penetration” in
In sum,
II.
Having determined the meaning of
A.
We turn first to the State‘s argument that the statute does not violate the First Amendment because the speech the statute prohibits is integral to criminal conduct. First Amendment protections do not extend to speech used ” ‘as an integral part of conduct in violation of a valid criminal statute.’ ” State v. Washington-Davis, 881 N.W.2d 531, 538 (Minn. 2016) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)). Speech is integral to criminal conduct when it “is intended to induce or commence illegal activities,” such as “conspiracy, incitеment, and solicitation.” United States v. Williams, 553 U.S. 285, 298 (2008). Both the Supreme Court and our court have addressed this category of unprotected speech.
Similarly, in Washington-Davis, we rejected a facial challenge to a statute prohibiting the promotion of prostitution, holding that the statute is constitutional because the statute‘s regulation of speech is tightly focused on speech integral to criminal conduct. 881 N.W.2d at 538. The statute at issue prohibits “solicit[ing] or induc[ing] an individual to practice prostitution” and “promot[ing] the prostitution of an individual.”
Much of the speech that
And unlike the speech at issue in Free Speech Coalition, in which the government argued that the speech was connected to enticing a child to later engage in criminal activity, see 535 U.S. at 251-53, in this case the later criminal activity is the goal of the speech. Specifically, in Free Speech Coalition, the government argued that the statute was linked to preventing later crime because the virtual child pornography prohibited by the statute could arouse the interests of a sexual predator, who may later abuse children. 535 U.S. at 253. The Court determined that the causal link between the virtual child pornography and the later criminal activity or harm to children was “contingent and indirect.” Id. at 250. Unlike the speech prohibited in Free Speech Coalition, the grooming behavior prohibited by
Even though much of the conduct prohibited by the statute, including grooming, is integral to criminal conduct, the statute also prohibits conduct that is not necessarily tied directly to criminal conduct. For example, an adult could communicate with a child about the adult‘s sexual practices or about sexual practices in general with the intent to arouse herself but without the intent to take further criminal action toward or involving the child. Because the statute prohibits this communication, even without an intent to solicit the child, the statute purports to regulate activity that is one step removed from criminal conduct. As this example illustrates, in some instances, the sweep of
Thus, although much of the speech that falls within the scope of
B.
We next turn to the State‘s contention that
(a) . . . the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Id. at 24 (citations omitted) (internal quotation marks omitted). When applying this test to speech directed toward children, the Court has held that statutes may protect “minors from the influence of literature that is not obscene by adult standards.” Sable Commc‘ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).5
Applying the Miller standard of obscenity, we conclude that the speech
The second prong of the Miller test, 413 U.S. at 24, is also often met because many of the communications
Finally, speech subject to
Two provisions in the statute prevent such a sweeping prohibition. First, the statute requires the adult to direct the communication at a child.
In summary, we hold that
III.
Having concluded that
On the other hand, in Reno v. American Civil Liberties Union, the Supreme Court held that a statute was overbroad in its prohibition of a “knowing transmission of obscene or indecent messages to any recipient under 18 years of age” as well as the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” 521 U.S. 844, 859 (1997). The Court concluded that this regulation was substantially overbroad because it prohibited “discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library.” Id. at 878.
With the principles from Williams and Reno in mind, we turn to the statute at issue here. The legitimate sweep of
Rather, the statute intrudes upon constitutionally protected speech only in a narrow set of circumstances—only insofar as the prohibited communication is not integral to criminal conduct, is not obscene, and does not fall within another category of unprotected speech. Cf. United States v. Dean, 635 F.3d 1200, 1205-06 (11th Cir. 2011) (concluding that a statute was not substantially overbroаd because it regulated speech that was obscene or child pornography and the material outside the scope of those categories of unprotected speech was insubstantial). For example, the plain terms of
In our view, there will be some, but relatively few, communications prohibited under the statute that would be entitled to First Amendment protection. See Osborne v. Ohio, 495 U.S. 103, 112 (1990) (“Even where a statute at its margins infringes on protected expression, ‘facial invalidation is inappropriate if the “remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct . . . .” ’ ” (quoting New York v. Ferber, 458 U.S. 747, 770 n.25 (1982))). Those communications that fall within this narrow sliver of speech will be sufficiently limited that they may be protected through as-applied challenges. See Washington-Davis, 881 N.W.2d at 540 (refusing to strike down a promotion of prostitution statute on the grounds that it could be applied to people working in the adult film industry and explaining that “the statute‘s application to those involved in the making of pornography should be resolved, if it ever arises, through an as-aрplied challenge“). Invalidation of a statute for substantial overbreadth is “strong medicine” that should be used “only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); see also Williams, 553 U.S. at 292 (“[W]e have vigorously enforced the requirement that a statute‘s overbreadth be substantial, not only in
CONCLUSION
Based on our analysis, we hold that
Reversed.
Notes
any of the following acts committed without the complainant‘s consent, except in those cases where consent is not a defense, whether or not emission of semen occurs:
(1) sexual intercourse, cunnilingus, fellatio, or anal intercourse; or
(2) any intrusion however slight into the genital or anal openings:
(i) of the complainant‘s body by any part of the actor‘s body or any object used by the actor for this purpose; (ii) of the complainant‘s body by any part of the body of the complainant, by any part of the body of another person, or by any object used by the complainant or another person for this purpose, when effected by a person in a position of authority, or by coercion, or by inducement if the child is under 13 years of age or mentally impaired; or
(iii) of the body of the actor or another person by any part of the body of the complainant or by any object used by the complainant for this purpose, when effected by a person in a position of authority, or by coercion, or by inducement if the child is under 13 years of age or mentally impaired.
“Sexual performance” is defined as “any play, dance or other exhibition presented before an audience or for purposes of visual or mechanical reproduction that uses [any person under the age of 18] to depict actual or simulated sexual conduct.”