Criminal Defamation Law Struck Down in MN

ST. PAUL, Minn. (CN) - Striking down Minnesota's criminal defamation law Wednesday, a state appeals court called it unconstitutional to omit truth as an absolute defense.

Timothy Robert Turner brought the challenge at issue after he pleaded guilty two counts of criminal defamation in connection to a post he made on the classifieds website Craigslist in 2013.

In the post, which purported to solicit sex from men, Turner included the phone numbers of his ex-girlfriend and her 17-year-old daughter, and the women soon received messages containing explicit images and videos from interested parties.

Turner, who admitted to creating the post in retaliation for an argument with his ex, entered his plea after the Isanti County District Court found the statute constitutional. His sentence was stayed pending the appeal.

Because the case implicated the First Amendment, Minnesota bore the burden of proving it constitutional.

The state Court of Appeal said Wednesday that in this regard it failed.

"Although appellant's conduct was reprehensible and defamatory, we cannot uphold his conviction under an unconstitutional statute," Justice Denise Reilly wrote for a three-person panel.

Undecided on whether to appeal, assistant county attorney Deanna Natoli defended the decision to charge Turner as she did instead of with disorderly conduct.

"To charge it as something equivalent to yelling and causing a ruckus doesn't do it justice, not only for the justice system itself but for the victims," Natoli said in a phone interview.

"Everything about what he did was not OK, and even at oral argument defense counsel conceded that this behavior is punishable because it's not protected speech," Natoli added.

Eugene Volokh, a law professor at the University of California, Los Angeles, filed an amicus brief on behalf of the Electronic Frontier Foundation in support of Turner.

The attorney said Wednesday's decision follows a gradual nationwide trend.

"Historically, it used to be that all states had such laws," Volokh said in a phone interview. "Over the last several decades, there have been repeals probably in about half the states, and they are unused in almost the others, either entirely or almost unused."

Volokh identified a notable exception in nearby Wisconsin where he said about a "half-dozen" criminal libel cases are filed yearly.

So long as the statutes are narrow and precise, Volokh said legislatures may find more luck with so-called revenge porn laws that would work to protect privacy by prohibiting the posting of private information and pictures without permission.

"That's what should be doing the work here," he said in a phone interview. "Not criminal libel laws."

The county's only hope for reversal is if the Minnesota Supreme Court construes the statute narrowly.

For the future, Natoli said she has high hopes for a law moving through the state Legislature that would make impersonating someone online a felony.

"That's in response to this case, to be perfectly honest," she said.

Turner's attorney, John Arechigo with St. Paul-based Arechigo Stokka, said the court made the right call and that a further appeal seemed unlikely.

"It's pretty clear to me that the statute is overbroad, and there's nothing the court can do to save it," Arechigo said in an interview.

The appellate court slammed Minnesota's law for making it possible to punish true statements, a direct conflict with legislative intent dating back to the 1890s.

Reilly said the law's "requirement that the truth be communicated with good motives and justifiable ends violates First Amendment protections because it penalizes protected speech - true statements - in addition to unprotected speech - false statements."

Further, the law requires no show of "actual malice" when subjects of defamation are public figures, or the defamation concerns a public matter.

On both matters, criminal defamation requires a less stringent standard than the civil penalty for defamation, the court found.

Though Minnesota called for a narrow interpretation of the statute, Reilly said that would require a rewrite in this case.

"We are mindful of the canon of constitutional avoidance, which requires, if at all possible, the judiciary to interpret a statute to 'preserve its constitutionality,'" the opinion states. "We are equally mindful that a limiting construction should be imposed only if an unconstitutional statute is 'readily susceptible to such a construction.'"

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