Thursday, August 9, 2012
A sharply divided (4-3) Minnesota Supreme Court ruled in State of Minnesota v. Crawley that the Minnesota ban on falsely accusing police officers did not violate the First Amendment.
The ruling is in tension with a 2005 case in the Ninth Circuit, Chaker v. Crogan. Between the two rulings and the split on the Minnesota court, the case is a good candidate for Supreme Court review.
The ruling narrowly construed Minnesota's ban in order to save it--ruling that the ban must be interpreted as a ban on unprotected defamatory speech. More than anything, it was that narrow construction--or, rather, the court's authority to so construe or rewrite the statute--that divided the court.
The ruling sends the case back to the trial court for retrial under the newly construed law.
Minnesota's law reads:
(a) Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer . . . has committed an act of police misconduct, knowing that the information is false, is guilty of a crime and may be sentenced as follows . . . .
Minn. Stat. Sec. 609.505, subd. 2.
The court held that this was, indeed, a content-based regulation on speech, ordinarily subject to strict scrutiny under the First Amendment. But it went on to read the statute narrowly, as a category of unprotected speech, defamation, in order to avoid ruling it unconstitutional. (The court said that "[i]t is clear that, as written, [the law] is overly broad because it punishes a substantial amount of protected speech in addition to unprotected speech." Op. at 15.)
This required some creative reading--even re-writing--to limit this very broad prohibition to mere defamation. Minnesota defamation law has four elements:
- The statement must be communicated to someone other than the plaintiff;
- The statement is false;
- The statement tends to harm the plaintiff's reputation; and
- The recipient of the false statement reasonably understands it to refer to a specific individual.
The court ruled that the statute failed to satisfy the first and fourth elements, because it didn't require that the statement be communicated to someone other than the plaintiff and because it did not require the statement to be of and concerning a specific individual.
But to avoid an over-breadth problem, the court re-read the statute (or re-wrote the statute) to require that the state prove that a defendant had informed a peace officer of misconduct by another officer and that the officer receiving the information reasonably understood it to refer to a specific individual. (The statute as written satisfied the second and third elements of defamation. As to the second, it required knowing falsity. As to the third, the statute satisfied the requirement for defamation per se by affecting an officer "in his business, trade, profession, office or calling.")
The court said that its move to re-read (and thus save) the law was sanctioned by the Supreme Court in both Chaplinsky (defering to a state authoritative construction of a statute to reach only unprotected fighting words) and R.A.V. (same, although the Supreme Court overturned the statute because it nevertheless discriminated based on the content and viewpoint of speech within that category of unprotected speech). (The latter case, of course, came out of Minnesota.)
The court ruled that even as re-read the statute discriminated based on content within the category of defamation--because it applied only to defamation per se that alleged an act of misconduct by an officer. But the court said that the statute met two exceptions set out in R.A.V.--that it regulated speech in order to address a secondary effect of the speech, independent of the content (here, the cost of investigating allegations of misconduct); and that the content-based-ness of the law created no realistic possibility that official suppression of ideas was at foot.
The court rejected the Ninth Circuit's approach in Chaker v. Crogan. In that case, the Ninth Circuit ruled that a similar statute was invalid as viewpoint discrimination, because it prohibited only knowingly false statements complaining of officer conduct, and not knowingly false statements supporting an officer. The Minnesota court said that the Ninth Circuit failed to analyze R.A.V.'s exceptions and based its analysis on "knowingly false speech" (not defamation)--a category, the court said, "since questioned by federal appellate courts in more recent decisions." Op. at 4.
The dissent, penned by Justice David Stras, argued that the court exceeded its authority in re-writing the statute. Instead, the court should have taken the statute as written. As written, Justice Stras cited Alvarez (the recent Stolen Valor Act case) and said that the majority of Justice on the Supreme Court concluded that knowing falsehoods are not categorically unprotected under the First Amendment. More: the Minnesota law creates a chilling effect on speech critical of the government--exactly the kind of speech that the First Amendment is designed to protect. Finally, Justice Stras argued that this content-based restriction did not satisfy strict scrutiny and therefore must fail.