of Appeals Office of Appellate Courts
Swanson, Attorney General, Saint Paul, Minnesota; and James
C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz,
Assistant County Attorney, Hastings, Minnesota, for
G. Westrick, Westrick & McDowall-Nix, PLLP, Saint Paul,
Minnesota, for respondent.
Swanson, Attorney General, Matthew Frank, Assistant Attorney
General, Saint Paul, Minnesota, for amicus curiae Minnesota
Caroline S. Palmer, Saint Paul, Minnesota, for amicus curiae
Minnesota Coalition Against Sexual Assault.
Minnesota Statutes § 609.352, subd. 2a(2) (2016),
prohibits an adult from participating in the electronic
transmission of information relating to or describing the
sexual conduct of any person, if the communication is
directed at a child and the adult acts with the specific
intent to arouse the sexual desire 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
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
GILDEA, Chief Justice.
question presented in this case is whether Minn. Stat. §
609.352, subd. 2a(2) (2016), violates the First Amendment to
the United States Constitution. The State charged respondent
Krista Muccio under Minn. Stat. § 609.352, subd. 2a(2),
with felony communication with a child describing sexual
conduct after she sent sexually explicit images and messages
to a 15-year-old boy. Muccio moved to dismiss the charge,
arguing that the statute facially violates the First
Amendment because it proscribes a substantial amount of
speech that the First Amendment protects. The district court
agreed with Muccio and the court of appeals affirmed. Because
we conclude that Minn. Stat. § 609.352, subd. 2a(2), is
not substantially overbroad in relation to its plainly
legitimate sweep, we reverse.
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 to 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.
on the photos and messages described above, the State of
Minnesota charged Muccio in count one with felony
communication with a child describing sexual conduct, in
violation of Minn. Stat. § 609.352, subd. 2a(2), and in
count two with felony possession of child pornography, in
violation of Minn. Stat. § 617.247, subd. 4(a) (2016).
The district court dismissed count one, concluding that Minn.
Stat. § 609.352, subd. 2a(2), is facially overbroad
under the First Amendment and therefore
unconstitutional. The court of appeals affirmed. State
v. Muccio, 881 N.W.2d 149, 153 (Minn.App. 2016). We
granted the State's petition for review.
asked to decide whether Minn. Stat. § 609.352, subd.
2a(2), is unconstitutionally overbroad under the First
Amendment. This statute prohibits "[a] person 18 years
of age or older" from "us[ing] the Internet, a
computer, . . . or other electronic device capable of
electronic data storage or transmission" to
"engag[e] in communication with a child or someone the
person reasonably believes is a child, relating to or
describing sexual conduct." Id. To violate the
statute, the adult must act "with the intent to arouse
the sexual desire of any person." Id., subd.
statute's definitions help determine its sweep. A
"child" is "a person 15 years of age or
younger." Minn. Stat. § 609.352, subd. 1(a)
(2016). "Sexual conduct" is "sexual
contact of the individual's primary genital area, sexual
penetration . . ., or sexual performance." Id.,
subd. 1(b) (2016). "Sexual penetration" and
"sexual performance" are further defined in Minn.
Stat. §§ 609.341 and 617.246 (2016),
appeal, the State argues that Minn. Stat. § 609.352,
subd. 2a(2), is constitutional because it targets only
unprotected speech, that any overbreadth is insubstantial,
and that the statute is subject to a limiting interpretation
that would preserve its constitutionality. In the
alternative, the State contends that the statute is narrowly
tailored to achieve a compelling government interest. For her
part, Muccio argues that Minn. Stat. § 609.352, subd.
2a(2), burdens a substantial amount of constitutionally
protected speech and is therefore unconstitutional on its
face. The parties' arguments require us to address the
constitutionality of Minn. Stat. § 609.352, subd. 2a(2).
We review constitutional challenges de novo. State v.
Washington-Davis, 881 N.W.2d 531, 537 (Minn. 2016).
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 the statute is
overbroad because it regulates some protected speech, and so
we analyze whether that overbreadth is substantial. For the
reasons discussed below, we hold that the statute's
regulation of protected speech is not substantial and
therefore the statute does not violate the First Amendment on
first step in determining whether 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."
Minn. Stat. § 645.08(1) (2016). If the statute regulates
only unprotected speech, the statute is constitutional unless
it results in " 'content discrimination unrelated to
[its] distinctively proscribable content.' "
Washington-Davis, 881 N.W.2d at 537 (alteration in
original) (quoting Crawley, 819 N.W.2d at 109). If,
however, the statute proscribes some amount of protected
speech, then the statute is constitutional unless it is
substantially overbroad "in relation to the
statute's plainly legitimate sweep." Broadrick
v. Oklahoma, 413 U.S. 601, 615 (1973); accord
Washington-Davis, 881 N.W.2d at 537.
then to interpret the statute to determine its meaning.
See Williams, 553 U.S. at 293;
Washington-Davis, 881 N.W.2d at 537. The parties
disagree about whether Minn. Stat. § 609.352, subd.
2a(2), implicates speech that the First Amendment protects.
The parties' disagreement focuses on three different
phrases within the statute: "engaging in communication,
" "intent to arouse, " and "relating to
or describing sexual conduct." Minn. Stat. §
609.352, subd. 2a (2016). We examine each disputed phrase in
the parties dispute the interpretation of the phrase
"engaging in communication with a child." Minn.
Stat. § 609.352, subd. 2a(2). Muccio contends that this
phrase, when properly interpreted, proscribes non-targeted
mass electronic communications, including advertisements and
public social-media posts, that a child happens to see even
though the communication was not directed at the child. The
State and the Minnesota Attorney General, as amicus curiae in
support of the State, argue that the phrase "engaging in