of Appeals Office of Appellate Courts
Swanson, Attorney General, Saint Paul, Minnesota; and Paul D.
Reuvers, Nathan C. Midolo, Iverson Reuvers Condon,
Bloomington, Minnesota, for respondent.
C. Riach, David D. Coyle, Fredrikson & Byron, P.A.,
Minneapolis, Minnesota, for appellant.
Nelson, American Civil Liberties Union of Minnesota, Saint
Paul, Minnesota; and Scott M. Flaherty, Briggs and Morgan,
P.A., Minneapolis, Minnesota, for amicus curiae American
Civil Liberties Union of Minnesota.
C. Holten, Jeffrey D. Bores, Gary K. Luloff, Chestnut
Cambronne PA, Minneapolis, Minnesota, for amicus curiae
Minnesota Police and Peace Officers Association Legal Defense
L. Naughton, League of Minnesota Cities, Saint Paul,
Minnesota, for amici curiae League of Minnesota Cities,
Association of Minnesota Counties, and Minnesota Association
Minnesota Statutes § 609.72, subd. 1(2) (2016), is
facially unconstitutional under the First Amendment to the
United States Constitution because it is substantially
Because there is no reasonable narrowing construction of
Minn. Stat. § 609.72, subd. 1(2), the remedy for the
First Amendment violation is to invalidate the statute.
case requires us to determine whether the part of
Minnesota's disorderly-conduct statute that prohibits
"disturb[ing]" assemblies or meetings, Minn. Stat.
§ 609.72, subd. 1(2) (2016), is unconstitutional under
the First Amendment to the United States Constitution. Both
the district court and the court of appeals concluded that
the statute is constitutional. Because Minn. Stat. §
609.72, subd. 1(2), violates the First Amendment and there is
no reasonable narrowing construction of the statute, we
facts of this case, which arose out of two Little Falls City
Council meetings, are undisputed. At the first of the two
meetings, appellant Robin Lyne Hensel sat in the public
gallery, which was about 15 to 20 feet from a raised dais
located at the front of the room and reserved for
city-council members. Tables and chairs were positioned in
the area between the gallery and the dais.
the meeting, Hensel, who was sitting in the front row of the
gallery, displayed signs that depicted dead and deformed
children. These signs, which were approximately 4-feet long
and 4-feet high, along with a sign on her head, obstructed
the view of those seated behind her, causing the City Council
president to grant permission to affected members of the
gallery to come forward and sit in the chairs available at
the front of the room. Hensel's actions eventually led
the City Council to adjourn and reschedule the meeting.
days later, the City Council reconvened in the same room, but
this time there were no tables or chairs in the area between
the gallery and the dais. Rather than sitting in the gallery,
as she had at the previous meeting, Hensel took one of the
folding chairs from the gallery and placed it in the space
previously occupied by the tables and chairs. Hensel refused
multiple requests to return to the gallery and challenged the
City Council by demanding to see a policy that prohibited her
from sitting there. Eventually, the Little Falls City
Attorney warned Hensel that a police officer would remove her
from the meeting room and issue her a ticket for disorderly
conduct if she did not return to the gallery. When Hensel
again refused a request to move, an officer escorted her from
on these events, the State charged Hensel with disorderly
conduct under Minn. Stat. § 609.72, subd. 1(2). Before
trial, Hensel moved to dismiss the charge, arguing, among
other grounds, that the statute violated the First Amendment
because it was unconstitutionally overbroad,
unconstitutionally vague, and unconstitutional as applied to
her case. The district court, in denying Hensel's motion,
rejected her vagueness challenge, reasoning that the
statutory language was clear and understandable. Hensel's
overbreadth challenge, by contrast, presented a closer call.
Even though the court concluded that Minn. Stat. §
609.72, subd. 1(2), was overbroad, it upheld the statute by
narrowly construing it to require proof that "the
disturbance in this case was caused by defendant's
conduct itself and not the content of the activity's
expression." Because Hensel's conduct fell within
the contours of the revised statute, the court held that
probable cause for the charges existed and that the
as-applied challenge to the statute failed.
trial, Hensel indirectly renewed her challenge to the
constitutionality of the
disturbance-of-an-assembly-or-meeting statute, Minn. Stat.
§ 609.72, subd. 1(2), by requesting a jury instruction
requiring the jury to find that her conduct, if expressive,
constituted "fighting words." Hensel also sought
another jury instruction requiring the jury to find that her
disturbing conduct was completely separate from any protected
expression. The district court denied both requests and
convicted her of disorderly conduct after the jury returned a
court of appeals affirmed Hensel's conviction, but
disagreed with the district court's analysis of
Hensel's overbreadth challenge. Specifically, the court
of appeals held that the
disturbance-of-an-assembly-or-meeting statute was a time,
place, or manner restriction that was not subject to standard
overbreadth analysis. State v. Hensel, 874 N.W.2d
245, 253 (Minn.App. 2016). Applying the relaxed test for
time, place, or manner restrictions, the court concluded that
the statute was constitutional and did not require a
narrowing construction. Id. at 254-55. We granted
Hensel's petition for review to evaluate the
constitutionality of Minn. Stat. § 609.72, subd. 1(2).
question presented in this case is whether the
disturbance-of-an-assembly-or-meeting statute, Minn. Stat.
§ 609.72, subd. 1(2), violates the First Amendment to
the United States Constitution. Each of Hensel's
challenges-substantial overbreadth, void for vagueness, and
instructional error-turns on the constitutionality of the
statute. To evaluate Hensel's challenges, therefore, we
apply a de novo standard of review. See Rew v.
Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014).
most sweeping of the three challenges is Hensel's
argument that the disturbance-of-a-meeting-or-assembly
statute is unconstitutionally overbroad. An overbreadth
challenge 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." United States v. Stevens, 559 U.S. 460,
473 (2010) (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008)). The
rationale for allowing an overbreadth challenge, even when a
statute is constitutional as applied in a particular
circumstance, is that enforcement of an overbroad law chills
protected speech, which "inhibit[s] the free exchange of
ideas." United States v. Williams, 553 U.S.
285, 292 (2008).
claim is that the disturbance-of-a-meeting-or-assembly
statute is overly broad and chills a "substantial"
amount of protected speech and expression. Hensel notes that
the statute could apply in countless circumstances, including
outside the government-meeting context, such as a private
conversation around one's dinner table or a gathering of
two or more people on the street. Hensel also emphasizes that
the statute could reach activities like uttering unpopular
"political or personal views, " "[s]torming
out of a meeting, " "[r]aising one's
voice" to express displeasure, or even "brandishing
signs or other symbols that some find offensive." Given
the myriad ways in which the State could enforce the statute
against protected speech and expressive conduct, Hensel
argues, the statute is substantially overbroad.
evaluate Hensel's overbreadth claim, the first step is to
interpret the statute itself to determine whether it includes
protected speech or expressive conduct within its coverage.
See Williams, 553 U.S. at 293. After all, "it
is impossible to determine whether a statute reaches too far
without first knowing what the statute covers."
Id. The disturbance-of-a-meeting-or-assembly
statute, Minn. Stat. § 609.72, subd. 1(2), provides as
Whoever does any of the following in a public or private
place, including on a school bus, knowing, or having
reasonable grounds to know that it will, or will tend to,
alarm, anger or disturb others or provoke an assault or
breach of the peace, is guilty of disorderly conduct, which
is a misdemeanor:
. . .
(2) disturbs an assembly or meeting, not unlawful in its
character . . . .
statute is broad and unambiguous, prohibiting any
conduct or speech that "disturbs an assembly or meeting,
" whether expressive or not. Id. An individual
could violate the statute by, for example, wearing an
offensive t-shirt, using harsh words in addressing another
person, or even raising one's voice in a speech. To be
sure, the statute also conceivably covers fighting
words, obscene speech, and true threats-all categories of
unprotected speech. See Stevens, 559 U.S. at 468,
470 (discussing "historically unprotected categories of
speech, " including obscenity); Virginia v.
Black, 538 U.S. 343, 359-60 (2003) (explaining that
states may ban fighting words and true threats). But it also
regulates protected expression. In fact, the plain language
of the disturbance-of-a-meeting-or-assembly statute, by using
the phrase "will tend to, " arguably targets
expressive activity of a controversial nature, given that it
defines the mens-rea element of the offense by reference to
the predicted effect of the speech or conduct on others, not
State seizes on the fact that the statute criminalizes
"disorderly conduct" to argue that the
disturbance-of-a-meeting-or-assembly statute does not
regulate any protected expression at all. The State's
argument is no more persuasive here than it was in State
v. Machholz, a case in which we considered an
overbreadth challenge to the felony-harassment statute. 574
N.W.2d 415, 419 (Minn. 1998). Like the
disturbance-of-a-meeting-or-assembly statute, the
felony-harassment statute also regulated conduct. In
Machholz, the statute criminalized conduct
"that interfere[d] with another person or intrude[d] on
the person's privacy or liberty." Id.
(quoting Minn. Stat. § 609.749, subd. 2(7) (1996))
(internal quotation marks omitted). We held there, in
language that is equally applicable here, that "[t]here
is no question that the harassing conduct proscribed by [the
statute] does encompass expressive activity. The broad reach
of the statutory language is not limited to nonexpressive
conduct." Id. at 420. Here, in addition to
regulating expressive conduct, the
disturbance-of-a-meeting-or-assembly statute covers protected
speech as well. Based on Machholz, therefore, we
reject the State's characterization of the statute as
regulating only unprotected, nonexpressive conduct.
concluded that the disturbance-of-a-meeting-or-assembly
statute regulates speech and conduct protected by the First
Amendment, we move on to the second step of the analysis,
which is to determine whether the statute is substantially
overbroad. A statute is not substantially overbroad merely
because "one can conceive of some impermissible
applications." Williams, 553 U.S. at 303.
Rather, "[a] statute is substantially overbroad . . .
if, in addition to prohibiting unprotected speech, it also
prohibits a substantial amount of constitutionally protected
speech." State v. Washington-Davis, 881 N.W.2d
531, 539 (Minn. 2016); see Broadrick v. Oklahoma,
413 U.S. 601, 615 (1973).
again, the statute's plain language is our guide to
determining the amount of protected speech and expressive
conduct regulated by the statute. The statute sets forth its
mens-rea element in the introductory clause, which requires
the offender to "know, or hav[e] reasonable grounds to
know that [the activity] will, or will tend to, alarm, anger
or disturb others or provoke an assault or breach of the
peace." Minn. Stat. § 609.72, subd. 1 (2016). Under
the statute, therefore, even negligent activity will subject
an individual to criminal liability. The actus-reus element
is even broader. Although an individual can commit disorderly
conduct in a number of ways, the
disturbance-of-a-meeting-or-assembly statute prohibits any
act that "disturbs an assembly or meeting, not unlawful
in its character." Id., subd. 1(2).
e actus-reus element does not place any meaningful limitation
on the statute's scope. To "disturb" is
"[t]o break up or destroy the tranquility, order, or
settled state of, " "[t]o interfere with;
interrupt, " and "[t]o intrude on;
inconvenience." The American Heritage Dictionary of
the English Language 525 (5th ed. 2011); see
Webster's Third New International Dictionary 661
(2002) (defining "disturb" as "to destroy the
rest, tranquility, or settled state of, " "to throw
into confusion or disorder, " and "to interfere
with"). The statute's attendant-circumstance
element, which requires the disturbance to occur at a
"meeting" or "assembly, " also does not
limit the breadth of the statute in any significant way. The
word "meeting" includes "[any] assembly or
gathering of people, as for a business, social, or religious
purpose." The American Heritage Dictionary of the
English Language at 1094; see Webster's Third
New International Dictionary at 1404. Similarly,
"assembly" means "[a] group of persons
gathered together for a common reason." The American
Heritage Dictionary of the English Language at 107;
see Webster's Third New International Dictionary
its component parts, the statute prohibits any
activity, whether expressive or not, that "interferes
with" or destroys the "tranquility" of any
lawful "gathering of people" who share a common
purpose or reason for gathering, so long as the individual
knows, or has reason to know, that the activity will, or will
tend to, disturb others. Minn. Stat. § 609.72, subd.
1(2). This statute presents us with a "criminal
prohibition of alarming breadth." Stevens, 559
U.S. at 474. It criminalizes a public speech that
"criticize[s] various political and racial groups . . .
as inimical to the nation's welfare."
Terminiello v. City of Chicago, 337 U.S. 1, 3
(1949). It prohibits an individual from wearing a jacket
containing an offensive inscription to a meeting. See
Cohen v. California, 403 U.S. 15, 16 (1971). And
certainly, it would forbid someone from burning the American
flag on a public street. See Texas v. Johnson, 491
U.S. 397, 399 (1989). In addition to being disruptive of
gatherings of all kinds, all of these actions share a common
quality: they are protected under the First Amendment. Due to
the countless ways in which Minn. Stat. § 609.72, subd.
1(2), can prohibit and chill protected expression, we
conclude that the statute facially violates the First
Amendment's overbreadth doctrine.
reached a similar conclusion in Machholz. The
statute in Machholz prohibited "harassing
conduct that interfere[d] with another person or intrude[d]
on the person's privacy or liberty." 574 N.W.2d at
418 (quoting Minn. Stat. § 609.749, subd. 2(7) (1996))
(internal quotation marks omitted). Applying the plain
language of the statute, we emphasized that it swept "in
a whole spectrum of constitutionally protected activity,
" including burning a cross at a political rally and
conducting a Nazi march in a town filled with Holocaust
survivors. Id. at 420 (citing Brandenburg v.
Ohio, 395 U.S. 444 (1969), and Nat'l Socialist
Party of Am. v. Skokie, 432 U.S. 43 (1977)). We held
that the felony-harassment statute, as it was then drafted,
violated the First Amendment's overbreadth doctrine.
Id. at 421. Our decision in Machholz, as
well as our conclusion here, is consistent with the weight of
authority from around the country. See, e.g., In
re Kay, 464 P.2d 142, 146, 149 (Cal. 1970) (concluding
that a statute prohibiting "willfully disturb[ing] or
break[ing] up any assembly or meeting, not unlawful in its
character, " as "literally applied, " violated
the First Amendment (citation omitted) (internal quotation
marks omitted)); State v. Fielden, 629 S.E.2d 252,
254, 256 (Ga. 2006) (invalidating a statute on First
Amendment grounds that prohibited "recklessly or
knowingly commit[ting] any act which may reasonably be
expected to prevent or disrupt a lawful meeting, gathering,
or procession" (citation ...