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State v. Muccio

Supreme Court of Minnesota

March 8, 2017

State of Minnesota, Appellant,
v.
Krista Ann Muccio, Respondent.

         Court of Appeals Office of Appellate Courts

          Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz, Assistant County Attorney, Hastings, Minnesota, for appellant.

          John G. Westrick, Westrick & McDowall-Nix, PLLP, Saint Paul, Minnesota, for respondent.

          Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota Attorney General.

          Caroline S. Palmer, Saint Paul, Minnesota, for amicus curiae Minnesota Coalition Against Sexual Assault.

         SYLLABUS

         1. 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.

         2. 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 exceptions.

         3. 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 Amendment.

         Reversed.

          OPINION

          GILDEA, Chief Justice.

         The 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.

         FACTS

         In 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.

         Based 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.[1] 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.

         ANALYSIS

         We are 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."[2] Id. To violate the statute, the adult must act "with the intent to arouse the sexual desire of any person." Id., subd. 2a.

         The 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).[3] "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), respectively.[4]

         On 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).

         We 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 its face.

         I.

         The 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.

         We turn 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 turn.

         A.

         First, 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 ...


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