In the Matter of the Welfare of: A. J. B., Child.
of Appeals Office of Appellate Courts
Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota,
Ellison, Attorney General, Saint Paul, Minnesota; and Ronald
Hocevar, Scott County Attorney, Todd P. Zettler, Assistant
County Attorney, Shakopee, Minnesota, for respondent.
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.
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
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
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.
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. A.J.B.'s purpose was to
elicit a negative response.
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
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.
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
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). 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.
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 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)).
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.").
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).
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.
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
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).
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
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.
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. §
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
Id. (internal quotation marks omitted) (citations
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.
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
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.
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
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.
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.
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. 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
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.
we must consider the statute's "exception"
subdivision. Minnesota Statutes § 609.749, subd. 7
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
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.
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 ...