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In re Welfare of A. J. B.

Supreme Court of Minnesota

June 19, 2019

In the Matter of the Welfare of: A. J. B., Child.

          Court of Appeals Office of Appellate Courts

          John Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota, for appellant.

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota, for respondent.


         1. Minnesota Statutes § 609.749, subd. 2(6) (2018), violates the First Amendment to the United States Constitution because it is facially overbroad and the statute is not reasonably subject to a narrowing construction or severance. Consequently, subdivision 2(6) is void.

         2. Minnesota Statutes § 609.795, subd. 1(3) (2018), violates the First Amendment to the United States Constitution because it is facially overbroad. The statute, however, is reasonably subject to a narrowing construction by severance that limits its scope to mailing or delivering a letter, telegram, or package with "intent to abuse."

         3. A remand to the juvenile court is necessary to determine whether the evidence establishes beyond a reasonable doubt that the juvenile committed harassment by mail with an intent to abuse under Minn. Stat. § 609.795, subd. 1(3), as narrowed.



         This case requires us to determine whether two Minnesota statutes-Minn. Stat. § 609.749, subd. 2(6) (2018), the stalking-by-mail provision, and Minn. Stat. § 609.795, subd. 1(3) (2018), known as the mail-harassment statute-are unconstitutional under the First Amendment to the United States Constitution. The juvenile court and the court of appeals concluded that both statutes are constitutional. We hold that Minn. Stat. § 609.749, subd. 2(6), is facially overbroad and not subject to either a narrowing construction or severance of unconstitutional provisions. Accordingly, we reverse the decision of the court of appeals with respect to that statute. We also hold that Minn. Stat. § 609.795, subd. 1(3), is facially overbroad, but that the statute can be saved through severance of the constitutionally problematic language. Finally, because it is unclear whether appellant's adjudication of delinquency for mail-harassment is based on the severed language, we reverse the adjudication under Minn. Stat. § 609.795, subd. 1(3), and remand to the juvenile court.


         In March 2016, three high school students, appellant A.J.B. and two friends, saw and discussed several tweets that fellow student M.B. had posted on the social media platform Twitter referencing girls at the school. In response, A.J.B. created an anonymous Twitter account and, in a two- to three-hour period, posted approximately 40 tweets about M.B. Nearly all of the tweets "mentioned" M.B. by including his Twitter username in the tweet.[1] A.J.B.'s purpose was to elicit a negative response.

         Essentially all of the tweets posted by A.J.B. and directed at M.B. contained cruel and egregious insults. One tweet contained a checkerboard of images with M.B.'s face and a caption reading, "Click the Autistic Child." Several tweets encouraged M.B. to commit suicide, encouraged M.B. to try a new cologne called "Anthrax," and suggested that M.B. kill himself by drinking bleach. Still other tweets referred to M.B. as a homosexual and used homophobic language, insults, and slurs, and called for the death penalty for gay individuals. Others insulted M.B.'s language skills, social skills, handwriting, personal interests, and involvement at school, and implied that his parents did not want him to be born. Put simply, over the course of two to three hours, A.J.B. dispatched an unrelenting torrent of cruel tweets at M.B.-an individual diagnosed with autism and Attention Deficit Hyperactivity Disorder-designed to "teach [him] a lesson." As the juvenile court put it, "[t]o say these posts are merely mean minimizes the degree of A.[J.]B.'s conduct . . . [the posts] are cruel and go beyond any measure of human decency."

         Several days later, A.J.B.'s tweets came to the attention of his high school's dean of students. The dean spoke to M.B. about the messages. M.B. had not yet seen the tweets, but when he viewed them, he became extremely upset. M.B. later testified that the tweets made him want to commit suicide and that he held a knife near his chest as a result. M.B. also testified that he was afraid to return to school for fear of being attacked. He sought the assistance of a psychiatrist and a social worker. After an internal school investigation, A.J.B. admitted to the dean that he created the anonymous Twitter account and sent the tweets that mentioned M.B.

         A.J.B. was charged with one count of gross-misdemeanor stalking by use of the mail in violation of Minn. Stat. § 609.749, subd. 2(6), and one count of misdemeanor harassment by use of the mail in violation of Minn. Stat. § 609.795, subd. 1(3). A.J.B. filed a pretrial motion to dismiss the charges, arguing among other things that the statutes were facially unconstitutionally overbroad in violation of the First Amendment and as applied to him. The juvenile court denied his motion. Just prior to trial, the State filed an amended juvenile petition, charging A.J.B. with an additional count of felony stalking in violation of Minn. Stat. § 609.749, subd. 3(a)(1) (2018), which requires the same proof as the gross-misdemeanor stalking charge but with an added element of demonstrating that the stalking occurred because of the offender's bias toward the victim's disability.

         A.J.B.'s case went to trial. He was found guilty beyond a reasonable doubt on all three charges and adjudicated delinquent of gross-misdemeanor stalking under Minn. Stat. § 609.749, subd. 2(6), and harassment by use of the mail under Minn. Stat. § 609.795, subd. 1(3).[2] In a published decision, the court of appeals rejected A.J.B.'s constitutional challenges and affirmed his adjudications for stalking by mail and mail harassment. In re A.J.B., 910 N.W.2d 491, 502-03 (Minn.App. 2018). We granted A.J.B.'s petition for review.


         On appeal, A.J.B. argues that his adjudications under the stalking-by-mail provision and mail-harassment statute must be vacated as contravening the First Amendment. Before turning to his specific arguments, we set out background principles that will guide our analysis. The First Amendment to the United States Constitution states that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. It applies to the states through the Fourteenth Amendment. State v. Washington-Davis, 881 N.W.2d 531, 538 (Minn. 2016) (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996)).

         "[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted) (citation omitted). The Supreme Court has stated that the First Amendment does not permit "the Government to imprison 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 (2010). Rather, the First Amendment "itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs" such that the "Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." Id. at 470. Further, "[o]f bedrock importance is the principle that the First Amendment's protections extend beyond expressions 'touching upon a matter of public concern.'" State v. Tracy, 130 A.3d 196, 201 (Vt. 2015) (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)).

         Of course, First Amendment protections are not limitless. There is a point where First Amendment protections end and government regulation of speech or expressive conduct becomes permissible. Exceptions to First Amendment protections generally fall into several delineated categories that include speech or expressive conduct designed to "incite imminent lawless action," "obscenity," "defamation," "speech integral to criminal conduct," "so-called 'fighting words, '" "child pornography," "fraud," "true threats," and "speech presenting some grave and imminent threat the government has the power to prevent." United States v. Alvarez, 567 U.S. 709, 717 (2012) (citations omitted). The Supreme Court has been reluctant to expand these categories of unprotected speech. See Stevens, 559 U.S. at 472 ("Our decisions . . . cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.").

         First Amendment principles apply with equal force to speech or expressive conduct on the Internet. There is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). No matter what changes occur to technology, "basic principles of freedom of speech . . . like the First Amendment's command[] do not vary when a new and different medium for communication appears." Brown v. Entm't Merch. Ass'n, 564 U.S. 786, 790 (2011) (internal quotation marks omitted) (citation omitted).

         We fully acknowledge that bullying, stalking, and other forms of harassment are serious problems in our society. The Legislature's interest in protecting all Minnesotans, and particularly our more vulnerable neighbors, from such conduct is proper and serious. We also understand the challenge of narrowly crafting legislation that provides meaningful protection from bullying and harassment within the constraints of the First Amendment. And we certainly do not believe that crafting such legislation is impossible. See, e.g., Rew v. Bergstrom, 845 N.W.2d 764, 776-80 (Minn. 2014) (upholding Minnesota's order for protection statute, Minn. Stat. § 518B.01, subd. 6a (2012), against a First Amendment prior restraint and facial invalidity challenge). Accordingly, we tread carefully as we balance the constitutional demands of the First Amendment against society's interest in protecting Minnesotans' safety, health, and welfare.

         We may reverse a conviction for violating the First Amendment if we determine that the statute is unconstitutionally overbroad on its face. A statute may be facially overbroad in violation of the First Amendment when "it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights." State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). Because of the fear of a "chilling effect" on speech, the traditional rules of standing have been altered in the First Amendment context to allow litigants to challenge statutes as unconstitutionally overbroad even when their own conduct could, consistent with constitutional requirements, be punished under a narrowly drawn statute. Id.; see Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Therefore, A.J.B. may bring an overbreadth challenge to the two statutes at issue here regardless of whether his own expression falls outside of First Amendment protection.

         "[T]he first step in an overbreadth challenge is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Stevens, 559 U.S. at 474 (quoting United States v. Williams, 553 U.S. 285, 293 (2008)). Once we understand the scope and sweep of the statute, we ask whether its reach is limited to unprotected categories of speech or expressive conduct. State v. Hensel, 901 N.W.2d 166, 171 (Minn. 2017).

         If we conclude that the statute is not limited to unprotected speech or expressive conduct, we turn to the core overbreadth inquiry: Does the statute prohibit a "substantial amount of constitutionally protected speech[?]" Id. at 171-72 (quoting Washington-Davis, 881 N.W.2d at 539); see Broadrick, 413 U.S. at 615. This inquiry looks to the conduct that is criminalized by the statute-some of which is unprotected speech or conduct and some of which is speech and expressive conduct protected by the First Amendment-and asks whether the protected speech and expressive conduct make up a substantial proportion of the behavior the statute prohibits compared with conduct and speech that are unprotected and may be legitimately criminalized. See Broadrick, 413 U.S. at 615 ("[P]articularly where conduct and not merely speech is involved . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."); see also Williams, 553 U.S. at 292. A statute is not substantially overbroad merely because "one can conceive of some impermissible applications." Williams, 553 U.S. at 303 (internal quotation marks omitted) (citation omitted).

         Finally, if we conclude that a statute prohibits a substantial amount of protected speech, we consider whether applying a narrowing construction or severing problematic language from the statute would remedy the constitutional defects. Hensel, 901 N.W.2d at 175. Our power to impose a narrowing construction on a statute is limited. While the canon of constitutional avoidance directs us to construe statutes to avoid meanings that violate constitutional principles, we remain bound by legislative words and intent and cannot rewrite the statute to make it constitutional. See State v. Luscher, 195 N.W. 914, 915-16 (Minn. 1923) (rejecting a construction of a statute that would avoid a constitutional difficulty because the "language of [the statute] is so positive, clear, and unambiguous that it leaves no room for construction, and must be taken to mean what it says"). As we aptly stated in Hensel in rejecting a narrowing construction, "the shave-a-little-off-here and throw-in-a-few-words-there statute [resulting from a narrowing construction] may well be a more sensible statute, but at the end of the day, it bears little resemblance to the statute that the Legislature actually passed." 901 N.W.2d at 180.

         We have broader authority when it comes to severance. Our goal is to "effectuate the intent of the legislature had it known that a provision of the law was invalid." State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014) (quoting State v. Shattuck, 704 N.W.2d 131, 143 (Minn. 2005)). Further, we "presume that statutes are severable unless the Legislature has specifically stated otherwise." Id. (citing Minn. Stat. § 645.20 (2018)).

Severing unconstitutional provisions is permissible unless we conclude that one of two exceptions applies. First, a statute cannot be severed if we determine that the valid provisions are so essentially and inseparably connected with, and so dependent upon, the void provisions that the Legislature would not have enacted the valid provisions without the voided language. Second, we are not to sever a statute if the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

Id. (internal quotation marks omitted) (citations omitted).

         If a statute is substantially overbroad, and unable to be saved by a narrowing construction or severance, "the remaining option is to invalidate the statute." Hensel, 901 N.W.2d at 175 (citing State v. Crawley, 819 N.W.2d 94, 105 (Minn. 2012)).

With these principles in mind, we turn to whether Minn. Stat. § 609.749, subd. 2(6), or Minn. Stat. § 609.795, subd. 1(3), is overbroad.



         We begin by interpreting the stalking-by-mail statute, Minn. Stat. § 609.749, subd. 2(6). Our goal in interpreting a statute is to ascertain the intent of the Legislature. State v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018); see also Minn. Stat. § 645.16 (2018). Words used in a statute must be read in context. See Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d 523, 527 (Minn. 2012).

         Minnesota Statutes § 609.749, subd. 2(6), provides:

A person who stalks another by committing any of the following acts is guilty of a gross misdemeanor: . . .
(6) repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages, through assistive devices for people with vision impairments or hearing loss, or any communication made through any available technologies or other objects[.]

(Emphasis added.) "Stalking" is defined as engaging "in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim." Minn. Stat. § 609.749, subd. 1 (2018). The statute raises several interpretive questions.

         First, subdivision 2(6) requires the State to prove that the defendant mailed, delivered, or caused the delivery of a communication. The word "delivered" has several commonly understood meanings. In the context of the stalking-by-mail provision, two definitions are worth consideration. The word "deliver" may mean "to take and hand over to or leave for another" as in "John delivered the package." Merriam Webster's Collegiate Dictionary 306 (10th ed. 1996). But the word may also mean to "speak, sing, or utter" as in "Jennifer delivered a fiery speech." Id. We interpret the word "deliver" as used in subdivision 2(6) to mean "to take and hand over to or leave for another." We do so because subdivision 2 specifically focuses on stalking "another," which suggests that the communication of the person doing the stalking must be directed at a specific person.[3]

         Notably, while the stalking-by-mail provision generally prohibits a person from "engag[ing] in conduct," the specific conduct at issue in subdivision 2(6) is closely tethered to speech or expressive activities. Subdivision 2(6) prohibits mailing or delivering "letters, telegrams, messages, packages . . . or any communication made through any available technologies or other objects . . . ." Minn. Stat. § 609.749, subd. 2(6). Four of the six items identified in the statute (letters, telegrams, messages, any communications) are purely expressive and the other two items (packages and other objects) may be expressive. Further, the statute's description of the type of communication that falls within its reach is stunningly broad. The statute applies to "any communication made through any available technologies." Id. The plain language of this phrase covers every type of communication without limitation.

         Second, the State must prove that the defendant made the delivery "repeatedly." An action is done "repeatedly" when it is done "again and again." Merriam-Webster's Collegiate Dictionary, supra, at 991; see State v. Collins, 580 N.W.2d 36, 42 (Minn.App. 1998) (defining the word "repeatedly" in Minn. Stat. § 609.749, subd. 2(6), as "more than once"), rev. denied (Minn. July 16, 1998). The word "repeatedly" limits the reach of subdivision 2(6) because it carves out from criminal sanction those instances when a person delivers a communication that frightens, threatens, oppresses, persecutes, or intimidates the recipient on a single occasion.

         Third, the mens rea requirement built into the statute is broad. Subdivision 1 of section 609.749 provides that the defendant must "know[] or ha[ve] reason to know" that the communication would cause the victim "under the circumstances" to feel "frightened, threatened, oppressed, persecuted, or intimidated." The "knows or has reason to know" standard-a negligence mens rea-means a person may be convicted under subdivision 2(6) even though the person does not intend or even know that his communication would frighten, threaten, oppress, persecute, or intimidate the victim.[4] The breadth of the negligence standard is further expanded by the phrase "under the circumstances." Id. The phrase instructs that what the actor should have known about the victim's reaction must be judged relative to the existing conditions and the context of the communications (including the victim's specific circumstances) when made. See Circumstance, Black's Law Dictionary (10th ed. 2014) ("An accompanying or accessory fact, event, or condition, such as a piece of evidence that indicates the probability of an event."). In this case, for example, a communication that may not have caused many high school students to feel frightened or threatened may nonetheless have had that effect on M.B. because of his unique life circumstances.

         The statute also requires proof of the victim's reaction. Minn. Stat. § 609.749, subd. 1. This added element limits the statute. However, the list of potential reactions is expansive, weakening the limiting nature of requiring proof of the victim's reaction. The statute criminalizes communications that cause a victim to feel physically or emotionally frightened (to be "fill[ed] with fear" or "alarm" or merely to "become afraid"), threatened ("feel[s] that his or her power, social standing, or self-esteem is in danger"), oppressed (feeling "worried or depressed"), persecuted ("oppress[ed] or harass[ed] with ill treatment" or "annoy[ed] persistently" or "bother[ed]"), or intimidated ("coerce[d] or deter[ed], as with threats"). The American Heritage Dictionary 703, 918, 1237, 1316, 1813 (5th ed. 2011) (defining "frighten," "threaten," "oppression," "persecution," and "intimidate"). None of these reactions is modified by an adverb (e.g., substantially, significantly) that would limit its scope. Further, the statutory language uses a subjective standard. The victim's feeling of fright, threat, oppression, persecution, or intimidation need not be objectively reasonable. See Minn. Stat. § 609.749, subd. 1.

         Finally, we must consider the statute's "exception" subdivision. Minnesota Statutes § 609.749, subd. 7 (2018), provides:

Conduct is not a crime under this section if it is performed under the terms of a valid license, to ensure compliance with a court order, or to carry out a specific lawful commercial purpose or employment duty, is authorized or required by a valid contract, or is authorized, required, or protected by state, federal, or tribal law or the state, federal, or tribal constitutions.

         This provision limits the scope of the stalking statute by exempting from its sweep several concrete and specific categories of conduct. The more general exemption for conduct and speech "authorized, required, or protected by . . . the state, federal, or tribal constitutions," id., means that speech or expression protected by the First Amendment is categorically exempted from the reach of the stalking statute.

         The exception from criminal prosecution under the statute for speech or expression protected by the First Amendment does not cleanse the statute of constitutional overbreadth concerns. In Machholz, we stated in dicta that the savings provision in subdivision 7 "cannot substantively operate to save an otherwise invalid statute, since it is a mere restatement of well-settled constitutional restrictions on the construction of statutory enactments." 574 N.W.2d at 421 n.4 (quoting Long v. State, 931 S.W.2d 285, 295 (Tex. Crim. App. 1996) (internal quotation marks omitted)). The Long decision cited in Machholz explained the rationale more fully:

Application of the [savings clause] on a case-by-case basis would require people of ordinary intelligence-and law enforcement officials-to be First Amendment scholars. Arguably, people are always "on notice" that constitutionally protected conduct is exempt from prosecution, and law enforcement officials could always look to the First Amendment to determine when a law should not be enforced because it would interfere with constitutionally protected activity. But, the mere existence of the First Amendment has never been held automatically to cure vagueness problems implicating First Amendment freedoms. Because First Amendment doctrines are often intricate and/or amorphous, people should not be charged with notice of First Amendment jurisprudence, and a First Amendment defense cannot by ...

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