State v. Jorgenson

946 N.W.2d 596

STATE of Minnesota, Appellant,

v.John Joseph JORGENSON, Respondent.

A19-0323

Supreme Court of Minnesota.

Filed: July 22, 2020

OPINION

LILLEHAUG, Justice.

We are asked to decide whether a subdivision of the Minnesota criminal coercion statute, Minnesota Statutes § 609.27 (2018), is unconstitutional on its face under the First Amendment to the United States Constitution. The district court and the court of appeals held that subdivision 1(4) was unconstitutionally overbroad and could not be saved through a narrowing construction or by severing part of it. We agree and therefore affirm.

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.

After R.C. reported the threats to law enforcement, Jorgenson was charged in Dodge County with one count of attempted coercion.¹ Jorgenson filed a successful motion to dismiss for lack of jurisdiction.

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 Minnesota Statutes § 609.27, subd. 1(4), is unconstitutional.

ANALYSIS

Jorgenson asserts that Minnesota Statutes § 609.27, subd. 1(4), is unconstitutional on its face. A defendant, such as Jorgenson, has standing to challenge a statute as unconstitutionally overbroad even if the statute, as applied to him, would not be unconstitutional. Broadrick v. Oklahoma , 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ; State v. Machholz , 574 N.W.2d 415, 419, 421 (Minn. 1998) (holding that Minnesota's felony harassment statute was unconstitutionally overbroad), superseded by statute as stated in State v. Hall , 887 N.W.2d 847 (Minn. App. 2017). Defendants have standing because prior restraint of free speech poses a greater harm to society than does the possibility that some unprotected speech will go unpunished. Broadrick , 413 U.S. at 612, 93 S.Ct. 2908.

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." Minn. Stat. § 609.27, subd. 1(4). If the threat within the meaning of section 609.27, subdivision 1, "fails to cause the intended act or forbearance," it is still a crime as an "attempt to coerce." Minn. Stat. § 609.275 (2018).

Jorgenson argues that subdivision 1(4) is unconstitutionally overbroad because it criminalizes a substantial amount of protected speech. The State argues that the statute is not unconstitutionally overbroad because it only regulates unprotected speech, specifically, "fighting words," and, in any event, does not prohibit a substantial amount of protected speech.

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." U.S. Const. amend. I, XIV.² Under the First Amendment, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (citation omitted) (internal quotation marks omitted). The First Amendment also forbids "the Government [from] imprison[ing] any speaker [because] his speech is deemed valueless or unnecessary, or [because] an ad hoc calculus of cost and benefits tilts in the statute's favor." United States v. Stevens , 559 U.S. 460, 471, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

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, 130 S.Ct. 1577 ). 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, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

The statute expressly prohibits both oral and written communications. Minn. Stat. § 609.27, subd. 1. Subdivision 1(4) "is a content-based regulation of speech because whether a person may be prosecuted under the statute depends entirely on what the person says." See State v. Crawley , 819 N.W.2d 94, 101 (Minn. 2012). Here, "speech is a statutory element in the definition of the offense," and thus is subject to an overbreadth attack. See State v. Robertson , 293 Or. 402, 649 P.2d 569, 578 (1982) (analyzing a statute similar to Minnesota's coercion statute). This content-based regulation of speech sweeps widely, in several respects.

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, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). A true threat may well place "the victim in fear of bodily harm or death." Id. at 360, 123 S.Ct. 1536. 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 expose any person to disgrace or ridicule. The communication is prohibited even if the secret or deformity is true, the defamatory statement is accurate, or the facts that might lead to disgrace or ridicule are real.

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

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