STATE OF MINNESOTA IN SUPREME COURT
A19-0323
STATE OF MINNESOTA, Appellant, vs. JOHN JOSEPH JORGENSON, Respondent.
Filed: July 22, 2020
Lillehaug, J. Dissenting, Gildea, C.J.
Court of Appeals. Office of Appellate Courts.
Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney, Rochester, Minnesota, for appellant.
David L. Liebow, James A. Godwin, Godwin Dold, Rochester, Minnesota, for respondent.
Travis J. Smith, Murray County Attorney, Slayton, Minnesota, for amicus curiae Minnesota County Attorneys Association.
S Y L L A B U S
On its face,
O P I N I O N
LILLEHAUG, Justice.
We are asked to decide whether a subdivision of the Minnesota criminal coercion statute,
FACTS
In the fall of 2016, John Jorgenson was living with his girlfriend, J.C., in her home in Claremont. J.C. ended their relationship and sought to evict Jorgenson. Around that time, Jorgenson began making threatening calls to, and leaving voicemails for R.C., the father of J.C.
According to R.C., Jorgenson called eighteen times, and left twelve voicemails. Among other things, Jorgenson threatened to release a video of J.C. talking about smoking marijuana unless R.C. paid Jorgenson $25,000. Jorgenson threatened to release the video to various entities, including the Minnesota Department of Human Services, J.C.‘s employer, and J.C.‘s professional licensing board.
Jorgenson was then charged with one felony count of attempted coercion in Olmsted County. He again filed a motion to dismiss, this time based on two theories: lack of probable cause that he had violated the coercion statute, and that the statute was overly broad in violation of the First Amendment to the United States Constitution and Article I, Section 3 of the Minnesota Constitution.
The district court denied Jorgenson‘s motion to dismiss based on probable cause, and granted the motion based on the First Amendment. The State appealed. The court of appeals affirmed the district court. State v. Jorgenson, 934 N.W.2d 362, 366 (Minn. App. 2019). We granted the State‘s petition for further review to decide whether
ANALYSIS
Jorgenson asserts that
We review a constitutional challenge de novo. See State v. Hensel, 901 N.W.2d 166, 170 (Minn. 2017). We presume that a statute is constitutional and strike it down only if absolutely necessary. State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997). In the First Amendment context, however, the State bears the burden to show that a “content-based restriction” on speech is constitutional. State v. Melchert-Dinkel, 844 N.W.2d 13, 18 (Minn. 2014); see also State by Humphrey v. Casino Mktg. Grp., Inc., 491 N.W.2d 882, 885–86 (Minn. 1992).
A.
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 another 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.”
The First Amendment is applied to the states through the Fourteenth Amendment, and provides that “Congress shall make no law . . . abridging the freedom of speech.”
Jorgenson‘s argument “is a facial attack on a statute in which the challenger must establish that ‘a substantial number of a statute‘s applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.’ ” See Hensel, 901 N.W.2d at 170 (quoting Stevens, 559 U.S. at 473). Our method of analysis for a facial challenge, such as this one, is well-established, and we have applied it often in recent years. See In re Welfare of A.J.B., 929 N.W.2d 840, 847–48, 856, 863 (Minn. 2019) (holding that a stalking-by-mail statute was overbroad but that a mail-harassment statute was not); Hensel, 901 N.W.2d at 170, 181 (holding that the disturbance-of-assembly statute was facially unconstitutional); State v. Muccio, 890 N.W.2d 914, 928–29 (Minn. 2017) (holding that a statute criminalizing electronic communication directed at a child that describes sexual conduct was not facially unconstitutional); State v. Washington-Davis, 881 N.W.2d 531, 537, 540–41 (Minn. 2016) (holding that a statute prohibiting solicitation and promotion of prostitution was not unconstitutionally overbroad); Melchert-Dinkel, 844 N.W.2d at 18–19, 23–24 (holding that a statute‘s provisions prohibiting advising and encouraging suicide were not narrowly drawn and did not survive strict scrutiny).
We begin our overbreadth analysis by, first, interpreting the statute and, second, determining whether it includes protected speech. See Hensel, 901 N.W.2d at 171–72. These are our first and second steps because “it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” See United States v. Williams, 553 U.S. 285, 293 (2008).
The statute expressly prohibits both oral and written communications.
First, subdivision 1(4) covers “threats,” not just “true threats” unprotected by the First Amendment. See In re Welfare of A.J.B., 929 N.W.2d at 846 (identifying delineated categories of speech not protected by the First Amendment, including “true threats“). A threat is “[a] communicated intent to inflict harm or loss on another or on another‘s property.” Threat, Black‘s Law Dictionary (10th ed. 2014). A true threat is “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). A true threat may well place “the victim in fear of bodily harm or death.” Id. at 360. Subdivision 1(4) does not require that the written or oral communication seriously express an intent to commit a violent act.
Second, subdivision 1(4) criminalizes a wide range of communications on a variety of subject matters. A communication is prohibited if it threatens to expose any secret or deformity, publish any defamatory statement (whether or not tortious),3 or otherwise
And the communication is criminal even if the threat itself—or the underlying information—touches upon a matter of public concern. The broad scope of the statute puts it in “the realm of social or political conflict where threats . . . may nevertheless be part of the marketplace of ideas, broadly conceived to embrace the rough competition that is so much a staple of political discourse.” See United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (holding constitutional the “limited scope” of the federal statute prohibiting retaliation against witnesses and informants). As the Oregon Supreme Court noted when declaring unconstitutional a materially similar coercion law:
[T]he statute makes no distinction whether the coercive demands and threats are addressed by one person to another in a private confrontation or correspondence or in a more or less public setting designed to inform and perhaps involve others in the issues posed by the demand and the potential sanction.
Third, subdivision 1(4) criminalizes speech whether the recipient of the threat takes—or forebears from—any action in response. Section 609.27, subdivision 1, requires that the threat “cause[] another against the other‘s will to do any act or forbear doing a lawful act.” But the immediately following statute, section 609.275—under which Jorgenson was charged—states that any threat outlawed by section 609.27, subdivision 1, that “fails to cause the intended act or forbearance” is punishable as an attempt to coerce.
We turn next to whether subdivision 1(4) is limited to regulating unprotected speech. See In re Welfare of A.J.B., 929 N.W.2d at 847. “First Amendment protections are not limitless.” Id. at 846. As already discussed, exceptions to First Amendment protection generally fall into delineated categories, including “speech integral to criminal conduct,” “fighting words,” “true threats,” and “speech presenting some grave and imminent threat the government has the power to prevent.” United States v. Alvarez, 567 U.S. 709, 717 (2012). In those categories, the speech is “of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The United States Supreme Court has been reluctant to expand these traditional categories of unprotected speech. See Stevens, 559 U.S. at 472.
The State argues that subdivision 1(4) does not regulate any protected speech because it only regulates fighting words. Fighting words are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common
There is no question that some fighting words are threats, and some threats are fighting words. But subdivision 1(4) criminalizes substantially more than threats composed of, or that include, fighting words. It prohibits threats that do not contain “personally abusive epithets” or are not “inherently likely to provoke violent reaction.” As to the latter, subdivision 1(4) forbids threats that are obviously unlikely to provoke violence, such as those made by electronic means from long distance. It even criminalizes threats that may have the effect of discouraging violence.
The State‘s fighting-words argument is not unfamiliar to us. The State made it in both Machholz and Hensel. We rejected it then for the same reason we reject it now: the statute criminalizes more speech than just fighting words. See Hensel, 901 N.W.2d at 176–77; Machholz, 574 N.W.2d at 420–21.
We now move to the next step of the analysis, which is the core overbreadth inquiry. We must determine whether the statute criminalizes not just some protected speech, but a “substantial amount” of protected speech. See Matter of Welfare of A.J.B., 929 N.W.2d at 847. To do so, we:
look[] to the conduct that is criminalized by the statute—some of which is unprotected speech or conduct and some of which is speech and expressive conduct protected by the First Amendment—and ask[] whether the protected speech and expressive conduct make up a substantial proportion of the behavior the statute prohibits compared with conduct and speech that are unprotected and may be legitimately criminalized.
- A law student who had been sexually harassed by a professor states: “Professor, you have a choice; either resign or I will report and publicize the fact that you sexually harassed me.”
- A school bus driver says to a student: “It‘s illegal for underage persons to smoke cigarettes. Give me those smokes or I will tell your parents that you‘re smoking.”
- A woman, seeing a man she knew was a child pornographer and sexual abuser preparing to move in with her sister and her nieces, promises: “If you don‘t break up with my sister and leave town, I‘ll report what I know to my sister and the authorities.”
It takes little imagination to come up with a multitude of examples in which a written or oral demand, including a threat to expose a secret or disgraceful fact, or to say something that is defamatory but true, is not only protected speech, but is the kind of speech that has “social value.” Such speech occurs in the worlds of government, business, academia, sports, and culture. Such speech may well be at the core of matters of public concern. Or it may occur in another socially valuable setting, family life. See Robertson, 649 P.2d at 589 (“The right of free expression is as important to many people in their personal and institutional relationships as it is in the narrower ‘civil liberties’ related to politics . . . .“).
B.
Our final step is to determine whether we can save the statute by construing it narrowly or severing part of it. In re Welfare of A.J.B., 929 N.W.2d at 848. Our power to narrow by construction “is limited“; we “remain bound by legislative words and intent and cannot rewrite the statute to make it constitutional.” Id. Only if a statute is “readily susceptible” to a narrowing construction can we “adopt such a construction if it remedies the statute‘s constitutional defects.” Hensel, 901 N.W.2d at 175 (citation omitted). “[T]he shave-a-little-off-here and throw-in-a-few-words there statute . . . may well be a more sensible statute, but at the end of the day, it bears little resemblance to the statute that the Legislature actually passed.” Id. at 180.
Subdivision 1(4) of the coercion statute, and the related attempt statute which incorporates it, are not susceptible to a narrowing construction. The State proposes that we save subdivision 1(4) by interpreting the word “threat” to mean only otherwise unlawful threats, such as fighting words. To interpret the statute that way, we would have to pencil in the adjective, “unlawful,” to modify the noun, “threat.” Adding the word “unlawful” would rewrite the statute. The power to do that is not ours.
It is especially not ours here because the Legislature has made clear that, as used in subdivision 1(4), the word “threat” encompasses all threats, both unlawful and otherwise lawful. By contrast to subdivision 1(4), paragraphs (1), (2), and (3) in subdivision 1
By choosing not to use the word “unlawful” in subdivision 1(4) to describe either the threat or the injury, the Legislature signaled that it did not intend to prohibit only unlawful threats to expose or publish. We cannot solve the constitutional problem by transplanting a key word.
We do have “broader authority when it comes to severance.” In re Welfare of A.J.B., 929 N.W.2d at 848. The goal of severing a statute is to “effectuate the intent of the legislature had it known that a provision of the law was invalid.” Melchert-Dinkel, 844 N.W.2d at 24 (quoting State v. Shattuck, 704 N.W.2d 131, 143 (Minn. 2005)). But we cannot sever in two situations. First, we cannot sever if the valid provisions are “‘essentially and inseparably connected with, and so dependent upon, the void provisions’ that the Legislature would not have enacted the valid provisions without the voided language.” Id. (quoting Shattuck, 704 N.W.2d at 143). Second, we cannot sever if “the remaining valid provisions, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.” Shattuck, 704 N.W.2d at 143.
Here, we see no way to sever part of subdivision 1(4) to save the rest of it from its unconstitutional overbreadth. In the court of appeals, the State suggested that everything in subdivision 1(4) could be severed except the prohibition on “publish[ing] a defamatory statement.” Jorgenson, 934 N.W.2d at 375. That suggestion for major surgery was not
Amicus Minnesota County Attorneys Association suggests that we sever the non-pecuniary harm penalty provision in subdivision 2(1). Even if we put aside our reluctance to “decide issues raised solely by an amicus,” Hegseth v. Am. Family Mut. Ins. Grp., 877 N.W.2d 191, 196 n.4 (Minn. 2016), that approach would leave in place the entirety of subdivision 1(4)—the prohibitory words—and still criminalize a substantial amount of protected speech. Severance is not the solution.
When a statute is substantially overbroad, and is unable to be saved by a narrowing construction or severance, “the remaining option is to invalidate the statute.” Hensel, 901 N.W.2d at 175. Here, subdivision 1(4) cannot be narrowed or saved by severance. Therefore, subdivision 1(4) must be invalidated as violating the First Amendment.
C.
Both the State and the dissent assert that subdivision 1(4) covers only unprotected speech. But they rely on dramatically different theories. As discussed, the State relies solely on the fighting-words exception, which is insufficient. The dissent relies on a different exception. The dissent‘s theory is that the definition of “threat” is so narrow that it includes only “speech integral to criminal conduct,” another of the categorical exceptions
The State argued the “speech integral to criminal conduct” issue in the court of appeals, but abandoned it there. The State‘s petition for further review and its brief relied solely on the fighting-words exception. A party forfeits an issue that is not raised in its petition, see In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn. 2005), or in its brief, State v. Williams, 771 N.W.2d 514, 517 n.2 (Minn. 2009).
Ordinarily, we would address the dissent merely by observing that the issue has been forfeited. But, because this is a constitutional case, and because we do not lightly overturn a statute, we choose to analyze the dissent‘s theory. It is unpersuasive, for three reasons.
First, the dissent relies on a definition of “threat” plucked out of its context. The dissent would define “threat” to mean only “a declaration of an intention to injure another or his property by some unlawful act.” This definition necessarily includes the element of an unlawful act separate from the communication. The definition comes from a single sentence in State v. Schweppe, 237 N.W.2d 609, 613 (Minn. 1975), which cited as support cases from the Western District of Tennessee and Kansas.6
In Schweppe, the defendant was convicted of making terroristic threats to kill a 16-year-old boy and his mother. Id. at 612. The issue in that case was not the definition of “threat“; it was whether, under the terroristic-threats statute, the threat to kill needed to be communicated directly to support a conviction. Id. at 614. Unlike subdivision 1(4), the terroristic-threats statute expressly called out the element of a separate unlawful act: “Whoever threatens to commit any crime of violence with purpose to terrorize another . . . .”
Second, the dissent‘s assumption that the word “threat” necessarily includes an unlawful act element just does not work for subdivision 1(4). The adjective “unlawful” appears in subdivision 1 in paragraphs (1) (“a threat to unlawfully inflict bodily harm. . . .“), (2) (“a threat to unlawfully inflict damage . . . .“), and (3) (“a threat to unlawfully injure . . . .“), but it appears nowhere in paragraph (4). If the dissent were correct, and the word threat by definition necessarily includes the element of an unlawful act, the word “unlawfully” in subdivision 1(1)–(3) would be pure surplusage. But such an interpretation runs head-long into one of our canons of interpretation: that every statutory word has meaning and none is surplusage. The canon requires us to “give effect to all of a statute‘s provisions,” so that “no word, phrase, or sentence is deemed superfluous, void, or insignificant,” Allan v. R.D. Offutt Co., 869 N.W.2d 31, 33 (Minn. 2015); see
At root, the dissent‘s interpretation is an understandable wish that we read subdivision 1(4) as merely banning extortion,7 which is speech integral to criminal conduct. But the Minnesota coercion statute is not a pure extortion statute; it criminalizes threats that are not extortionate.
Federal extortion statutes are much narrower than subdivision 1(4). Under the federal Hobbs Act, extortion is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
Subdivision 1(4), which does not even use the words “extort” or “extortion,” sweeps far broader than the federal extortion statutes. The threat need not induce force, violence, or fear, as most extortionate threats do. Nor is subdivision 1(4) limited to criminalizing demands for money or property; it encompasses all demands to do—or forbear from doing—any acts, including lawful acts. Such threats are found often in political and social discourse.9
[P]lainly not all threats to engage in speech that will have the effect of damaging another person‘s reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television “on-the-side-of-the-consumer” program. Or a private club may threaten to post a list of the club members who have not yet paid their dues. We doubt that Congress intended [section] 875(d) to criminalize acts such as these.
180 F.3d 55, 67 (2d Cir. 1999). All of these scenarios would be criminal under the Minnesota coercion statute.
For these reasons, the dissent‘s theory that the statute prohibits only speech integral to criminal conduct is incorrect.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
DISSENT
STATE OF MINNESOTA IN SUPREME COURT
A19-0323
GILDEA, Chief Justice (dissenting).
Jorgenson asserts that
When the statute is properly interpreted, it is clear that
“[T]he question of whether a given statement is a threat turns on whether the ‘communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.’ ” Id. (quoting United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974)). By leading with the term “threat,”
The majority discounts the express and limited prohibition against “threats” in paragraph (4) by concluding that a threat can include protected speech. I disagree. The United States Supreme Court has observed that a threat, or a “verbal or visual assault,” is an example of “unwanted communication” and implicates a person‘s right to be left alone,
See United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012) (upholding a federal statute criminalizing extortionate threats against the defendant‘s First Amendment challenge); United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988) (upholding the federal extortion statute as not unconstitutionally overbroad or vague).
In Coss, the defendants were indicted under federal law with conspiracy to extort money and the transmission of threats to injure the reputation of another with intent to extort money based on allegations that they threatened to release photographs of a well-known celebrity engaging in wrongful behavior unless the celebrity paid a large sum of money to purchase the photographs from them. 677 F.3d at 280–82. The defendants challenged the federal statutes as overbroad and vague in violation of the First Amendment. Id. at 282. In analyzing the federal statute, the Sixth Circuit held that “extortionate threats” are not protected speech under the First Amendment. Id. at 289. The Sixth Circuit
In Hutson, the defendant was indicted under federal law with extortion based on allegations that he threatened to send sexually explicit photographs of his ex-girlfriend to her relatives unless she paid a large sum of money to him. 843 F.2d at 1233. The defendant challenged the federal extortion statute as overbroad and vague in violation of the First Amendment. Id. at 1234. The Ninth Circuit upheld the federal statute based on its conclusion that extortionate threats are not protected speech under the First Amendment. Id. at 1235.
Like the statutes in Coss and Hutson, the statute at issue in this case does not preclude protected speech because the plain language of the statute is limited to extortionate speech.3
According to the majority, my conclusion that the statute only criminalizes extortionate speech is simply wishful thinking. But the history of the statute supports my
The sentencing provision of the statute aligns the value of the threat with the level of punishment. See
Moreover,
And all six subparts begin with the word “threat.”
To be clear,
The majority comes out differently, relying on several hypothetical situations to support its conclusion that
Because
Notes
In Robertson, the defendant challenged the constitutionality of the state‘s coercion statute, and the Oregon Supreme Court struck down the statute as substantially overbroad in violation of the First Amendment. Id. at 571, 589–90. The plain language of the coercion statute in Oregon is unlike the Minnesota coercion statute because the Oregon coercion statute uses the general word “demand” and does not include the word “threat.” See id. at 577 (citing
Saul: Okay, there‘s always: “You got a real nice place here. Be a shame if something happened to it.” That angle.
Skyler: What are you talking about? Violence?
Saul: Attitude adjustment.
Breaking Bad: Open House (AMC television broadcast July 31, 2011) (discussing how to persuade a business owner to launder drug money).