State of Minnesota, Respondent, vs. Chris A. Mrozinski, Appellant.
A20-0231
STATE OF MINNESOTA IN SUPREME COURT
March 9, 2022
Chutich, J. Dissenting, Thissen, J.
Court of Appeals. Filed: March 9, 2022 Office of Appellate Courts
Kimberly J. Maki, St. Louis County Attorney, Tyler J. Kenefick, Assistant County Attorney, Hibbing, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
Cicely R. Miltich, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General Keith Ellison.
S Y L L A B U S
- A threat of violence is made “in a reckless disregard of the risk of causing such terror,” in violation of the Minnesota threats of violence statute,
Minnesota Statutes section 609.713, subdivision 1 (2020) , when the defendant makes the violent threat whileconsciously disregarding a substantial and unjustifiable risk that the defendant‘s words or actions will cause terror. - True threats, a category of speech unprotected by the First Amendment, do not require specific intent to threaten a victim and can encompass violent communications that are made recklessly; Minnesota‘s threats of violence statute,
Minnesota Statutes section 609.713, subdivision 1 , punishes only true threats. - Minnesota‘s threats of violence statute,
Minnesota Statutes section 609.713, subdivision 1 , is not substantially overbroad under the First Amendment.
Affirmed.
O P I N I O N
CHUTICH, Justice.
This case involves a facial challenge to a part of the Minnesota threats of violence statute,
In January 2017, Mrozinski slid an envelope under the door of the Initial Intervention Unit of St. Louis County Children‘s Protection Services. She had handwritten “MISS ME YET?” on the outside of the envelope, which contained a letter and four toe tags, like ones used to identify bodies in a morgue. The letter read:
JUST A LITTLE NOTE FOR ALL MY FRIENDS @ CPS . . .
DID YOU REALLY THINK YOUR LAME-ASS THREATS TO CONTINUE YOUR ILLEGAL COURTHOUSE BULLSHIT WOULD SCARE ME, YOU FUCKING CUNTS?!
MY CHILDREN WILL BE 16 SOMEDAY, AND YOU WON‘T BE ABLE TO DO SHIT ABOUT IT. CHILDHOOD IS NOT FOREVER. DEATH, ON THE OTHER HAND, IS.
SLEEP TIGHT, BITCHES!
(PERHAPS I SHOULD SAY . . . SLEEP WITH ONE EYE OPEN?)
Each of the four toe tags contained the handwritten name of a different person associated with Mrozinski‘s child protection matter that resulted in Mrozinski losing custody of her children. In the space on the tags labeled “case number” were handwritten numbers starting with “#1 of 9” going up to “#4 of 9.” Each toe tag also included a handwritten address for “place of death,” a date for “date of birth,” “TBD” for “date of death,” and insulting names in the other spaces. Some of the birthdays and addresses were accurate, but some were not. All four people named on the toe tags reported making changes to their daily routines and taking safety precautions accordingly. Three of the
Mrozinski was charged with four counts of threats of violence, one for each person named in the toe tags, under
The court of appeals affirmed in a nonprecedential opinion. State v. Mrozinski, No. A20-0231, 2021 WL 416739 (Minn. App. Feb. 8, 2021). The court concluded that even if the Statute prohibited some protected speech, it did not sweep in a substantial amount of protected speech and was therefore not facially overbroad under the First Amendment. Id. at *5-11. We granted Mrozinski‘s petition for review.1
Mrozinski asserts a facial challenge to the constitutionality of part of the Minnesota threats of violence statute on First Amendment overbreadth grounds.2 We review questions of law, including the constitutionality of statutes, de novo. State v. Jorgenson, 946 N.W.2d 596, 601 (Minn. 2020). We presume that statutes are constitutional and strike them down “only if absolutely necessary.” Id. In the context of First Amendment challenges, however, the “State bears the burden of showing that a content-based restriction on speech” is constitutional. State v. Melchert-Dinkel, 844 N.W.2d 13, 18 (Minn. 2014). Defendants have standing to challenge a statute as unconstitutionally overbroad even when it is not unconstitutional as applied in their case “because prior restraint of free speech poses a greater harm to society than does the possibility that some unprotected speech will go unpunished.” Jorgenson, 946 N.W.2d at 601. Accordingly, Mrozinski may bring an overbreadth challenge regardless of whether her conduct could have been constitutionally punished.
The First Amendment prohibits the government from “abridging the freedom of speech.”
Statutes are overbroad when they prohibit more than just unprotected speech and sweep in a substantial proportion of protected speech and expressive conduct in comparison with unprotected speech and conduct. A.J.B., 929 N.W.2d at 847. A challenger asserting overbreadth must establish that “a substantial number of [a statute‘s] applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (internal quotation marks omitted).
We use a four-step process to analyze questions of overbreadth under the First Amendment. A.J.B., 929 N.W.2d at 847-48. Because it is not possible to know whether a statute sweeps in too much protected speech without first knowing what it covers, our first step is to construe the statute. Id. Construing the statute includes noting in what ways the statute covers broad or narrow conduct and any limiting factors. See id. at 849-50 (discussing language and elements that broaden or limit the reach of the statute).
When our analysis shows that the statute covers more than just unprotected speech, however, we move to the third step and determine whether the statute prohibits a substantial amount of protected speech in comparison with unprotected speech. Id. (“If we conclude that the statute is not limited to unprotected speech or expressive conduct, we turn to the core overbreadth inquiry . . . .“). This step involves revisiting the language of the statute and identifying whether it sweeps in only a little or a substantial amount of protected speech. Id. at 853 (returning to the language of the statute and discussing its wide breadth).
We address the fourth and last step only when the statute prohibits a substantial amount of protected speech. Id. at 848. At this stage, we determine whether we can save the statute by narrowly construing or severing language to avoid the constitutional problem. Id. When we cannot do so, we strike the statute down. Id.
I.
We begin with the Statute. The Minnesota threats of violence statute makes it a crime for a person to “threaten[], directly or indirectly, to commit any crime of violence with purpose to terrorize another . . . or in a reckless disregard of the risk of causing such
Mrozinski does not challenge the part of the Statute that prohibits threats of violence made with the purpose to terrorize another. This is because, as we explain more fully below, the Supreme Court of the United States has held that a threat of violence made with the intent to intimidate is a true threat that may be prohibited under the First Amendment. See Virginia v. Black, 538 U.S. 343, 360 (2003). Rather, Mrozinski challenges that part of the Statute under which she was convicted, which punishes threats of violence made in reckless disregard of the risk of causing terror.
We have previously interpreted many of the terms in the Statute. “A threat is a declaration of an intention to injure another or [her] property by some unlawful act.” State v. Schweppe, 237 N.W.2d 609, 613 (Minn. 1975). We must view words or phrases in their context to determine whether they are harmless or threatening. Id. A communication is threatening when, considered in context, it creates reasonable apprehension that the defendant will carry through with or act on the threat. Id. In addition, the Statute only prohibits a threat to specifically commit a crime of violence.
We have not yet defined what acting recklessly means under this Statute. In a different First Amendment context, however, we concluded that recklessness requires deliberate action in disregard of a known, substantial, and unjustifiable risk. State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007) (addressing a First Amendment challenge to a child pornography statute). Under this definition, a person acts recklessly when she ” ‘consciously disregards a substantial and unjustifiable risk that the element of an offense exists.’ ” Id. (quoting State v. Zupetz, 322 N.W.2d 730, 733 (Minn. 1982)). We conclude that this same definition should apply here because it aligns with the common understanding of the term “reckless” and is consistent with our First Amendment precedent. See State v. Engle, 743 N.W.2d 592, 594 (Minn. 2008) (explaining that the recklessness definition adopted in Zupetz and Mauer “comports with the most common usage of the term“). In the context of this crime, to act “in a reckless disregard of the risk of causing such terror,” a defendant must be aware of a substantial and unjustifiable risk that her words or actions will cause terror in another, and she must act in conscious disregard of that risk.
In sum, a person recklessly makes threats of violence, in violation of
II.
In the second step of our traditional overbreadth analysis, we consider whether a statute‘s reach is “limited to unprotected categories of speech or expressive conduct.” A.J.B., 929 N.W.2d at 847. In other words, we ask here whether the Statute‘s reach falls outside the scope of the First Amendment entirely because it prohibits only true threats, a traditionally unprotected category of speech. Id. at 846. But because the mental state required for speech to be considered an unprotected true threat is unsettled, we must first define the scope of the true threats exclusion from the First Amendment‘s protection, see Part II.A., before determining the Statute‘s reach in Part II.B. below.
A.
The parties disagree on the requirements for a communication to qualify as a true threat—and consequently whether the Statute punishes any protected speech. Mrozinski contends that the Supreme Court‘s decision in Virginia v. Black, 538 U.S. 343 (2003), created a specific intent requirement for words or conduct to qualify as a true threat and thereby fall outside of the protection of the First Amendment. The crux of Mrozinski‘s argument is that a mental state of recklessness for true threats is incompatible with the First Amendment and potentially sweeps up a wide range of protected speech.
The State maintains that neither Black, nor any other Supreme Court case, created or implied a specific intent requirement for true threats. Additionally, the State compares
1.
The Supreme Court first recognized the exclusion of true threats from First Amendment protection in Watts v. United States, 394 U.S. 705 (1969). Watts, a young man who had just received his draft card, spoke out against the draft at a political rally in the late 1960s. Id. at 706. He was convicted of “knowingly and willfully” threatening the President because he stated, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. at 705-06. Watts made this statement after swearing that he would never join the armed forces, and the crowd‘s response was to laugh. Id. at 706-07.
The Court held that although the statute forbidding threats against the President was certainly constitutional on its face, it was not constitutional as applied to Watts. Id. at 707-08. Based on the context, his statements only amounted to political hyperbole; “a kind of very crude offensive method of stating a political opposition to the President.” Id. at 708. The Court acknowledged that true threats fall outside of the First Amendment and that the government can constitutionally prohibit them. Id. at 707 (“What is a threat must be distinguished from what is constitutionally protected speech.“). The Court did not, however, provide a definition or require a certain mental state for true threats; it merely concluded that Watts‘s political hyperbole did not amount to a true threat. See id. at 708.
The Court then stated that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360. The Court also elaborated on the sound reasoning behind excluding true threats from protected speech: “[A] prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ ” Id. at 360 (second alteration in original) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992)). The Virginia statute passed constitutional muster because cross burning done with the statutorily required intent to intimidate was a true threat, and the intent to intimidate distinguished this type of cross burning from other types of cross burning that were protected speech. Id. at 363.
2.
After Black, federal circuit and state courts split on the issue of what level of intent true threats require. The Court had an opportunity to resolve the split in Elonis v. United States, a case that challenged a federal statute that punished the transmission in interstate commerce of “any communication containing any threat . . . to injure the person of another,” but did not contain a mental state. 575 U.S. 723, 732, 740 (2015) (quoting
Consistent with the State‘s position, most state and federal courts presented with the issue have decided that true threats do not require specific intent to threaten. These courts, as well as Justices Thomas and Alito in their separate writings in Elonis—which urged addressing the First Amendment issue that the majority declined to reach—reject interpreting Black as creating a specific intent requirement for true threats.6
Accordingly, we join the majority of courts to have considered the issue and agree with the State that a specific intent to threaten the victim is not required for violent speech or expressive conduct to be a true threat. The Supreme Court‘s statement that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” does not clarify what minimal mental state is required for speech to be a true threat. See Black, 538 U.S. at 359. Additionally, the Court‘s explanation of intimidation simply referred to the mental state set forth in the Virginia statute, stating that intimidation was ”a type of true threat.” Id. at 360 (emphasis added); see also United States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012)
Moreover, the plurality‘s invalidation of the prima facie evidence provision in Black does not show that specific intent to intimidate is essential to separating true threats from protected speech. The plurality in Black explained that “the provision as so interpreted would create an unacceptable risk of the suppression of ideas” because it allowed conviction “based solely on the fact of cross burning itself,” without regard to context. 538 U.S. at 365 (internal quotation marks omitted). This explanation suggests not that specific intent to intimidate is required in every case to distinguish protected speech from true threats, but rather that “[s]tates must prove more than the mere utterance of threatening words—some level of intent is required.” Perez v. Florida, 580 U.S. __, 137 S. Ct. 853, 855 (2017) (Sotomayor, J., concurring in denial of petition for writ of certiorari). Accordingly, Black does not definitively answer the question of what minimal mental state true threats require, but the plurality suggests that some level of intent is necessary as part of a contextual analysis.
We also conclude that the reasoning behind the exclusion of true threats from First Amendment protection supports rejecting an exclusive specific intent mental state and permitting a reckless one to suffice. Excluding true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders.” R.A.V., 505 U.S. at 388. Additionally, it protects people “from the possibility that the threatened violence will occur” because actual violence does often follow threats of violence. Id. These purposes are best served by including within the definition of true threats those communications that,
Limiting true threats only to those violent threats made with the specific intent to threaten the victim fails to protect victims from the fear of violence and instead protects speech the defendant knows has a substantial and unjustifiable risk of causing that fear. A defendant who recklessly communicates threats of violence “necessarily grasps that [she] is not engaged in innocent conduct“; instead, she recognizes the substantial likelihood that someone could “regard [her] statements as a threat, but [she] delivers them anyway,” without justification. Id. at 745-46. Indeed, protecting this type of speech has a corrosive effect on society because it allows bullies who espouse violence to intimidate others, potentially stifling public discourse.
Finally, and perhaps most importantly, this result is consistent with Supreme Court precedent, as well as our precedent, concerning other categories of unprotected speech. We have recognized that “the recklessness standard represents the lowest level of scienter that has thus far been affirmatively approved by the Supreme Court under the First Amendment.” Mauer, 741 N.W.2d at 114. For example, a legislature can criminalize fighting words likely to provoke an ordinary person “without proof of an intent to provoke a violent reaction“; a state can convict a defendant “of mailing obscenity . . . without proof
Concluding that true threats require specific intent would make true threats of violence more protected than several other categories of unprotected speech. Considering the serious and violent nature of true threats, the harm and intimidation true threats cause, and the corrosive effect true threats have on society even when the violent threats are made recklessly, requiring a higher level of specific intent for speech in this unprotected category—and not for other areas of unprotected speech—makes little sense. See Elonis, 575 U.S. at 746 (Alito, J. concurring in part and dissenting in part) (“True threats inflict great harm and have little if any social value.“). If in the context of other First Amendment categories, a reckless standard “provides adequate breathing space” for protected speech, requiring proof of recklessness in the context of true threats similarly provides sufficient protection of speech. Id. at 748.
Accordingly, we reject a specific intent requirement for true threats and hold that a reckless state of mind is sufficient for a defendant‘s violent communication to be a true threat excluded from the protection of the First Amendment.
Having clarified that specific intent is not required to make a communication a true threat, we consider whether Minnesota‘s threats of violence statute is limited to prohibiting only true threats. Because the Statute has various safeguards embedded into its text and the caselaw interpreting it, we conclude that it punishes only reckless speech that is a true threat.
First, the Statute prohibits only a very narrow type of threat to commit an act of serious violence. In Schweppe we defined a threat of violence as “a declaration of an intention to injure another or [her] property by some unlawful act.” 237 N.W.2d at 613. The Statute prohibits only threats to commit crimes of violence, statutorily defined as serious felony-level offenses involving violence.
Second, context drives our analysis of violent threats under the Statute and narrows its reach. Our court interprets a communication in context to determine whether it would reasonably cause a person to apprehend that the defendant would carry out or act on the threat. Schweppe, 237 N.W.2d at 613. Requiring courts to view communications in their context avoids sweeping in those communications that may be threatening on their face but that a listener could easily understand as a joke or crude political commentary, just as Watts‘s commentary was not a threat but rather political hyperbole. Watts, 394 U.S. at
Third, that the communication must be made in reckless disregard of causing terror limits the scope of the Statute and satisfies another purpose of the true threats exclusion. We defined recklessness in the context of the Statute as consciously disregarding a substantial and unjustifiable risk of causing extreme fear by use of violent threats. This requirement protects victims against the “disruption that fear [of violence] engenders” because it prohibits communications that the defendant is aware are highly likely to cause extreme fear. See id. And, as held above, communications made with a reckless mental state can be true threats. Accordingly, given the safeguards that narrow the Statute substantially, the reckless disregard part of the threats of violence statute is not overbroad, because it punishes only reckless speech that is a true threat.
III.
Even if we were to assume that the Statute may reach a recklessly made threat that, in its context, could be considered protected speech, Mrozinski has not met her burden of showing that “a substantial number of [the Statute‘s] applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.”8 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n.6 (2008).
Mrozinski next poses the example of a person who, out of anger, makes a throat-slashing gesture to a friend about a third party but does not make the gesture in the third party‘s presence. Mrozinski does not provide any context that clarifies whether the gesture would cause reasonable apprehension that the actor would carry out the threat on the third party or why there might be a substantial and unjustifiable risk of causing extreme fear in the third party. Merely making a throat-slashing gesture could convey many different meanings, and without context—which the Statute requires courts to consider—it is difficult to conclude that the gesture was made with reckless disregard of causing terror.
The last example Mrozinski mentions is a Minnesota Twins fan yelling “kill the ump” after a bad call. The State persuasively rebuts this example by comparing it to Watts‘s statement; the fan‘s statement would not likely create a reasonable apprehension that the fan would act on the statement. Additionally, it would be difficult to prove that
Even if some examples of reckless but protected speech covered by the Statute exist, courts cannot conclude that a statute is substantially overbroad simply because “one can conceive of some impermissible applications.” United States v. Williams, 553 U.S. 285, 302 (2008) (internal quotation marks omitted). Given the statutory safeguards listed above that narrow the Statute‘s reach—that the threat be considered in context, that it refer to a violent crime, that the defendant be conscious of a substantial and unjustifiable risk of causing extreme fear and disregard the risk—few situations of reckless but protected threats would be swept up in criminal prosecutions. Accordingly, the Statute is not facially overbroad.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
THISSEN, Justice (dissenting).
“True threats” is a category of speech that is not protected by the First Amendment. But the boundaries of the category are ill-defined. In this case, our fundamental task is to define the contours of the true threats category. Specifically, we must determine whether the unprotected true threats category includes threatening speech or expressive conduct where the speaker does not intend to cause extreme fear in the person to whom a threat is directed. I conclude that the answer to that question is “No.” Accordingly, I dissent. Appellant Chris Mrozinski‘s conviction for violating
A.
Section 609.713, subdivision 1, criminalizes two distinct acts. First, the statute criminalizes a person‘s declaration of an intention to injure another or their property by (1) committing a statutorily defined crime of violence, where (2) the declaration, in context, would have a reasonable tendency to create apprehension that the declarant will carry through with or act on the threat, and (3) the declarant has the purpose of causing extreme fear in the other person.1
Second, the statute criminalizes a person‘s declaration of an intention to injure another or their property by (1) committing a statutorily defined crime of violence, where (2) the declaration, in context, would have a reasonable tendency to create apprehension that the declarant will carry through with or act on the threat, and (3) the declarant acts in conscious disregard of a substantial and unjustifiable risk (“reckless disregard“) that her words or expressive act will cause extreme fear in the other person.
Further, to be convicted of the “reckless disregard” crime, the speaker must
As a bit of foreshadowing, the distinction between whether a reasonable person would feel apprehensive because of the communication and whether the speaker intended to make the person feel that way is important. In the context of the central question in this case—defining the boundaries of the true threats categorical exemption from First Amendment protection—the question of reasonable tendency to create apprehension is relevant to the existence of harm. As we shall see, however, the existence of harm is merely the precondition that may justify classifying a type of speech—threatening speech—as unprotected speech. If speech is not threatening, by definition, it cannot be an unprotected true threat. But not all speech that is harmful because it is threatening is unprotected by the First Amendment. The question of whether speech that is harmful because it threatens criminal violence falls in the generally protected category of unprotected true threats turns on the speaker‘s purpose in making the threat and not on how the individual at whom the threat is directed perceives the threat. See Megan R. Murphy, Comment, Context, Content, Intent: Social Media‘s Role in True Threat Prosecutions, 168 U. Pa. L. Rev. 733, 744–46
In other words, under the statute, a speaker may be criminally convicted for threatening speech or other expressive conduct even when the speaker not only lacked any purpose to (specific intention of) causing extreme fear in the listener, but did not even think that her speech had the potential to cause the listener to experience extreme fear, as long as she perceived that some other fictive person—an objective observer—would perceive a substantial possibility that the speech or expressive conduct would cause the target of the threat to experience extreme fear. This is an attenuated mess of a standard for criminal liability in that it is confusing to apply and seemingly straddles an odd line between recklessness (requiring proof of a substantial and unjustifiable risk) and negligence (ultimately judged from the perspective of an objective observer).
The Supreme Court of the United States has never said that this type of speech—a threat to use criminal violence to injure another made without the specific purpose or intent of causing extreme fear in the person to whom the speech is directed—falls within the true threats category of unprotected speech. Cf. Perez v Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J., concurring in denial of petition for writ of certiorari) (stating that Supreme Court precedent “strongly suggest[s] that it is not enough that a reasonable person might have understood the words as a threat—a jury must find that the speaker actually intended to convey a threat“). On the other hand, the Supreme Court has also never said that this type of speech does not fall within the true threats category of unprotected speech. I disagree with those courts that have concluded that Black or other Supreme Court precedent
B.
Generally, speech and expressive conduct is protected by the First Amendment and cannot be prohibited or criminalized. In re Welfare of A.J.B., 929 N.W.2d 840, 846 (Minn. 2019). However, certain categories of speech that are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” are not protected. Black, 538 U.S. at 358–59 (citations omitted) (internal quotation marks omitted).
The Supreme Court defined true threats as “encompass[ing] those statements 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.” Id. at 359. “The speaker need not actually intend to carry out the threat.” Id. Rather, the focus is on the speaker‘s purpose in creating fear in the target of the threat. The true threats categorical carve-out from First Amendment protection is justified by the fact that speech that threatens violence may undermine the social interest in order and morality. As the Black court noted, the fear engendered by threats of violence disrupts the social order. Id. Moreover, when a person threatens violence, actual violence often follows. That also undermines the social interest in order. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (noting that allowing criminalization of true threats protects people “from the possibility that the threatened violence will occur“).
The existence of harm and disruption of the social order does not end the analysis. If it did, then any expression meaningfully (in the Schweppe sense) threatening violence would be unprotected by the First Amendment. But that is clearly not the case. The same argument can be made about a statement meaningfully threatening violence made without due care for whether it will elicit fear or, indeed, a statement made without any knowledge or awareness whatsoever that it will elicit fear. But no one contends that a negligence or strict liability standard properly defines the contours of unprotected true threats. Accordingly, it is not enough to say that because a violent statement made without specific intent can still elicit fear and cause harm it passes constitutional muster.
We must also consider the extent to which the speech has value as a step toward truth. This part of the analysis reflects our basic understanding that the First Amendment protects speech from government interference because a “free trade in ideas” is a necessary precondition of a functioning democratic republic. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Allowing a person to test her ideas and attempt to persuade fellow citizens to care about an issue or enact change through vigorous
That said, First Amendment jurisprudence deems some forms of persuasion to be illegitimate because they do not persuade in a way that leads to the truth. That is certainly true for some expressions threatening violence. For instance, if I voice agreement with a speaker—and give up my contrary idea—solely because I am afraid the speaker might beat me up, our discussion has moved us no closer to the truth. On the other hand, I may be persuaded by language threatening violence because such language captures the speaker‘s passion about and commitment to her idea. Such heightened language can crystalize the stakes at issue in a particular controversy so as to change hearts and minds by breaking through the cacophony of competing voices in the public square.
Indeed, the tension reflected in those two situations underlies the Supreme Court‘s decision in Watts. Watts spoke at a 1966 political rally during the Vietnam War. 394 U.S. at 706. As part of a larger discussion, the 18-year-old Watts told the group that he received his draft card and had to report for his physical the following Monday. Id. He said: “I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. He was charged with and convicted of the felony of “knowingly and
The Supreme Court held that the conviction violated the First Amendment. The Court did not strike down the statute as unconstitutional. Id. at 707 (“Certainly the statute under which [Watts] was convicted is constitutional on its face.“). The Court acknowledged that certain threats to kill or harm the President could be criminalized consistent with the First Amendment because of the social order interest in “protecting the safety of [the President] and in allowing him to perform his duties without interference from threats of physical violence.” Id. Rather, employing a constitutional avoidance analysis, the Court concluded that the word “threat” in the statute did not mean all threats against the President. Id. at 707–08. The Court reasoned:
[A] statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. . . .
We do not believe that the kind of political hyperbole indulged in by [Watts] fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The language of the political arena, like the language used in [the private setting of] labor disputes is often vituperative, abusive, and inexact. We agree with [Watts] that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Id. (internal citations omitted) (internal quotation marks omitted).
The Black Court proceeded on a similar path. After acknowledging the social order justification for excluding certain speech threatening criminal violence from the presumptive protection of speech under the First Amendment, Black, 538 U.S. at 359–60, the Court held that a state could constitutionally criminalize the burning of a cross with an intent to intimidate any person or groups of persons, id. at 363. The Court reviewed the history of the Ku Klux Klan‘s use of cross burning, concluding that burning a cross is often meant to intimidate or “coerce the victim to comply with the Klan‘s [or some other cross burner‘s] wishes unless the victim is willing to risk the wrath of the Klan [in the form of violence].” Id. at 357. Intimidating someone into compliance with one‘s wishes through threats of violence is, once again, an impermissible form of persuasion and so is not protected by the First Amendment.
Significantly, however, a plurality of the Black Court also held that a provision of the cross burning statute, which allowed a jury to infer intent to intimidate solely from the act of burning of the cross, rendered the cross burning statute facially invalid because the provision “strip[ped] away the very reason why a State may ban cross burning with the
As in Watts, the Black Court‘s true threats analysis turned on the speaker‘s purpose in making the threatening statement. The Court‘s First Amendment analysis did not turn on the adverse impacts to the social order from threats of violence. Rather, such adverse impacts are the characteristic that brings otherwise protected speech within the contours of what may constitute unprotected true threats. Indeed, the Court acknowledged that even when the harm is real, and the social order is endangered by the arousal of anger or hatred associated with such an awful threat of violence as a cross burning, the First Amendment will protect speech that is not meant to persuade by way of intimidation or coercion through violence. Id. at 366–67.
The challenge, then, is to figure out where and how to draw the line between speech that tries to persuade in an impermissible way through intimidation or coercion based on
In short, the point of the true threats categorical exemption from First Amendment protection is our collective understanding that trying to coerce or intimidate someone to adopt your position or demand by means of threatened criminal violence (and the associated harm to the social order) is an illegitimate means of persuasion. It makes no progress toward truth. Whether a communication is a true threat turns on the speaker‘s purpose and not on the listener‘s reaction (although the listener‘s reaction may be circumstantial evidence of the speaker‘s purpose).
C.
With this context in mind, I return to the question before us: Does speech threatening unlawful violence fall within the true threats category of unprotected speech when the speaker does not intend that the person to whom the speech is directed will believe that the speaker will follow through on the threat?
The reason that intent is important in the true threats analysis is that it helps us draw the line between permissible and impermissible types of persuasion; to determine whether the speech is meant to persuade by coercion or intimidation or is meant to persuade by
For instance, consider a “reckless disregard” mental state such as that required under the portion of section 609.713, subdivision 1. Such a standard criminalizes speech when the speaker does not intend to instill extreme fear of violence in the target of the threat. Instead, it imposes criminal liability based on whether the speaker has subjective knowledge that an objective observer would perceive a substantial and unreasonable potential that the threat would instill extreme fear of violence in the target of the threat. The fact that a substantial possibility of instilling extreme fear is enough to establish criminal liability creates space for a communication where the speaker is attempting protected speech—that is, persuasion through ideas, even if crudely and offensively articulated—under circumstances where a fictive objective observer would perceive the speaker to be attempting to persuade through the illegitimate means of intimidation or coercion through threat of criminal violence. This sends too murky a signal for a speaker to figure out in advance whether the speaker is doing the thing that is not protected by the First Amendment (persuasion through intimidation or coercion based in criminal violence), rather than doing the thing that is protected by the First Amendment (persuasion through ideas, even if those ideas are crude, offensive, distasteful or discomforting, and have a
I do not believe that this conclusion will seriously undermine the reach of section 609.713, subdivision 1. There are likely to be very few cases where evidence that a speaker had a subjective awareness that there existed a substantial and unjustified potential that a threat might cause an objective observer to experience extreme fear will not also support a conclusion that a speaker intended or had the purpose to cause extreme fear in a person. Both claims can be proved only by circumstantial evidence and assessment of the credibility of the speaker. This case is a perfect example. The stipulated evidence presents a strong case that Mrozinski had a specific intent or purpose to instill extreme fear in the government employees to whom she sent the toe tags. But it is precisely those rare cases where a difference may exist and create indeterminacy of the legality of speech that First Amendment concerns about criminalizing and chilling political speech are most serious.
D.
Having concluded that the true threats category of unprotected speech is limited to threats of violence made with a specific intent to cause fear in the target of the speech, I must now address whether the reckless disregard portion of section 609.713, subdivision 1, is nonetheless a permissible restriction of protected speech. Criminal prohibitions that target speech based on its communicative content are permissible in narrow circumstances.
The State has an interest protecting people from experiencing extreme fear of criminal violence from another. I conclude, however, that the part of section 609.713, subdivision 1, that criminalizes threats made with reckless disregard of whether the threat will cause extreme fear in the target of the threat is not sufficiently narrowly tailored to survive strict scrutiny. First, the crime does not require any proof that the target of the threat actually experienced extreme fear. Schweppe, 237 N.W.2d at 614. Such a requirement would narrow the reach of the statute to align the crime more closely with the harm it is intended to prevent and still achieve its purpose of harm prevention. Second, the language of the statute is not limited to private speech and does not include specific exceptions for categories of core public speech. Cf. Casillas, 952 N.W.2d at 643 (concluding that revenge-porn statute was sufficiently narrowly tailored because it was limited by its terms to private speech and included several clear enumerated exceptions). The case-by-case contextual carve-out that we grafted onto section 609.713, subdivision 1, is insufficiently narrowing. For instance, I am not as comforted as my colleagues that an
E.
I now turn to whether Mrozinski‘s conviction following a court trial is constitutional. The district court found Mrozinski guilty under section 609.713, subdivision 1, because she “made the threat [at issue here] in reckless disregard of the risk of causing . . . terror.” The district court never determined that Mrozinski had a specific intent or purpose to cause extreme fear and that she would carry through on the threat. Consequently, the conviction must be reversed and the case remanded for a trial under the proper standard.