Christian Action League of Minn. v. Freeman

31 F.4th 1068

CHRISTIAN ACTION LEAGUE OF MINNESOTA ; Ann Redding, Plaintiffs - Appellants

v.Mike FREEMAN, Hennepin County Attorney, in his official capacity, Defendant - Appellee

Keith M. Ellison, Attorney General for the State of Minnesota, Intervenor below - Appellee

No. 20-3618

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2021

Filed: April 21, 2022

Erick G. Kaardal, Mohrman & Kaardal, Minneapolis, MN, for Plaintiffs - Appellants.

Christiana Mariko Martenson, Kelly K. Pierce, Hennepin County Attorney's Office, Minneapolis, MN, for Defendant - Appellee.

Elizabeth Catherine Kramer, Attorney General's Office, Solicitor Division, Saint Paul, MN, for Intervenor below - Appellee.

Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Minnesota Statute § 609.748(2) allows victims to obtain restraining orders against their harassers. The Christian Action League of Minnesota (CAL), an anti-pornography advocacy group, and Ann Redding, its president, brought a pre-enforcement challenge against the Hennepin County Attorney, arguing that the Statute violated the First and Fourteenth Amendments. The district court¹ dismissed the complaint for lack of standing, concluding that CAL's intended conduct isn't proscribed by the Statute. We affirm.

I.

CAL is a non-profit run by Ann Redding that opposes pornography and sexual exploitation. Its roughly 150 members advocate against sexually oriented publications. One of those publications was City Pages , a Minneapolis newspaper owned by the Star Tribune. Since 2010, CAL has publicly opposed companies that advertise in City Pages . CAL's members believe that, since City Pages runs advertisements for sexually oriented businesses, companies that advertise in City Pages are tacitly endorsing those businesses. CAL primarily advocates through postcards, letters, and emails directed at City Pages ’ advertisers.

R. Leigh Frost is a lawyer who advertised her firm in City Pages . After Redding noticed one of Frost's advertisements, she sent Frost a postcard asking her to stop buying ad space. The card said, "Porn tears families apart. City Pages promotes strip clubs and porn. As a woman, are you ok with that?" Not long after, Frost's firm received an email and another postcard expressing the same sentiment.

Despite Frost asking CAL to stop contacting her, she received yet another postcard about a week later. Fed up with CAL's messages, Frost filed a petition for a harassment restraining order (HRO) under Minnesota Statute § 609.748(2), which provides that "[a] person who is a victim of harassment ... may seek a restraining order." Among other things, it defines harassment as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target." Minn. Stat. § 609.748(1)(a)(1). The day after Frost filed her petition, a state court judge issued an HRO against CAL. A few months later, the parties settled and the state court vacated the HRO.

In May 2020, nearly a year after the temporary HRO was vacated, CAL and Redding filed a pre-enforcement challenge against Mike Freeman, the Hennepin County Attorney. They argued that the Statute violates the First Amendment's guarantees of free speech and association, as well as the Fourteenth Amendment's prohibition on unconstitutionally vague laws. They sought both declaratory relief and a permanent injunction prohibiting Freeman from prosecuting any HRO under the Statute.

Freeman moved to dismiss the complaint for lack of standing.² He argued that CAL's future plans—contacting businesses by mail and email to persuade them to stop advertising in City Pages —are not criminalized by the Statute. As a result, CAL had no injury in fact. See 281 Care Comm. v. Arneson , 638 F.3d 621, 627 (8th Cir. 2011) (to establish standing in a First Amendment case, a plaintiff must show that his "decision to chill his speech in light of the challenged statute was objectively reasonable") (quotation omitted).

The district court granted the motion to dismiss for two reasons. First, it agreed that CAL's planned conduct wasn't prohibited, so CAL didn't have standing to challenge the Statute. Second, it found that even if CAL had standing at the beginning of the litigation, the case had since been mooted. While Freeman's motion to dismiss was pending, City Pages permanently shut down due to a decline in advertising revenue during the COVID-19 pandemic. Because CAL's complaint primarily referenced City Pages , the court reasoned, the complaint "failed to demonstrate a live dispute involving the actual or threatened application of [the Statute] to bar particular speech." Christian Action League of Minn. v. Freeman , Civil No. 20-1081 ADM/TNL, 2020 WL 6566402, at *5 (D. Minn. Nov. 9, 2020) (quoting Renne v. Geary , 501 U.S. 312, 320, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) ). CAL and Redding appealed.

II.

We review questions of standing and mootness de novo , see Carlsen v. GameStop , Inc. , 833 F.3d 903, 908 (8th Cir. 2016), and jurisdictional findings of fact for clear error, Osborn v. United States , 918 F.2d 724, 730 (8th Cir. 1990).

"In order to satisfy Article III's standing requirements, [CAL] must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct and (3) [is] likely to be redressed by the proposed remedy." Starr v. Mandanici , 152 F.3d 741, 748 (8th Cir. 1998), overruled on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). The parties dispute whether CAL has shown an injury in fact. To show an injury in fact in a First Amendment pre-enforcement case, a plaintiff must have "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quotation omitted). So this appeal turns on a single question: is CAL's planned conduct criminalized by the Statute? If it is, then CAL has standing, and we should reverse. But if the Statute doesn't prohibit CAL's conduct, then CAL isn't affected by the Statute and has no injury in fact. As then-Judge Barrett put it, "no harm, no foul." Casillas v. Madison Ave. Assocs., Inc. , 926 F.3d 329, 331 (7th Cir. 2019).

The plain text of the Statute is ambiguous as to whether it criminalizes CAL's speech. CAL wants to repeatedly contact, via email and postcards, companies who support sexually oriented businesses. The Statute prohibits "harassment," which includes "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect ... on the ... privacy of another, regardless of the relationship between the actor and the intended target." § 609.748(1)(a)(1). CAL argues that this language criminalizes its plan to persuade advertisers to boycott City Pages . If that's true, then CAL has been injured because the Statute has chilled its arguably constitutionally protected speech. Freeman, however, argues that postcards and emails to advertisers don't have a "substantial adverse effect ... on the safety, security, or privacy of another." Id. He claims that "[c]onduct that is only offensive, argumentative, or inappropriate," like CAL's, "does not constitute harassment." Freeman Br. at 14 (citing Witchell v. Witchell , 606 N.W.2d 730, 732 (Minn. Ct. App. 2000) ). If Freeman is correct, then the Statute doesn't criminalize CAL's conduct, and CAL doesn't have standing. Because either interpretation is plausible, the Statute is ambiguous. See Hansen v. Robert Half Int'l, Inc. , 813 N.W.2d 906, 915 (Minn. 2012) ("A statute is ambiguous when the language is subject to more than one reasonable interpretation.").

When interpreting state law, we are bound by the interpretation of a state's highest court. Missouri v. Hunter , 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). But where, as here, a statute hasn't yet been interpreted by the state's highest court, "it is our responsibility to predict, as best we can, how that court would decide the issue." Brandenburg v. Allstate Ins. Co. , 23 F.3d 1438, 1440 (8th Cir. 1994). In making that prediction, we look to "relevant state precedent, analogous decisions, considered dicta, ... any other reliable data," and the state's "rules of statutory construction." In re Dittmaier , 806 F.3d 987, 989 (8th Cir. 2015) (citation omitted) (cleaned up). All these factors point toward one conclusion—CAL's conduct is not prohibited by the Statute.

We begin by considering the constitutional savings canon, which dictates that "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." United States v. Jin Fuey Moy , 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916) ; see also Matter of Welfare of A.J.B. , 929 N.W.2d 840, 848 (Minn. 2019) (When a statute is ambiguous, "the canon of constitutional avoidance directs us to construe statutes to avoid meanings that violate constitutional principles."). This canon strongly supports Freeman's interpretation that CAL's speech isn't criminalized by the Statute. CAL wants to write advertisers to encourage them to stop supporting sexually oriented businesses—what the Supreme Court has dubbed "core political speech." Meyer v. Grant , 486 U.S. 414, 421–22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) ("Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’ "). Accordingly, adopting CAL's interpretation would require us to cast doubt on the...