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Friday, October 22, 2010

Minnesota Court of Appeals Reverses Conviction Based On First Amendment Challenge

The Minnesota Court of Appeals has reversed the conviction of a Minnesota resident based on a First Amendment challenge to a statute that forbids the knowing communication of false information about police misconduct to investigators (Minnesota Statute 609.505(2)).

The provision challenged here criminalizes speech in the form of the intentional lie. The intentional lie is one type of expressive action that fails to “materially advance[ ] society's interest in uninhibited, robust, and wide-open debate on public issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007 (1974) (quotation omitted); see also United States v. Daly, 756 F.2d 1076, 1081-82 (5th Cir.1985) (upholding statute criminalizing aiding and assisting in making false statements to federal government on First Amendment challenge) (citing Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 465 (1965)). Knowingly communicating a false statement against public agencies causes significant harm in the form of “perversion” of “governmental departments and agencies.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 523 (1941) (noting Congress's interest in statute punishing false statements made to federal government). The state asserts this harm-the disruption of police functions and investigations-as a proper basis for the challenged provision. As harmful conduct, the intentional falsehood is a mode of speech that can be regulated without regard to the substance of that speech. Chaker, 428 F.3d at 1225; see United States v. Masters, 484 F.2d 1251, 1254 (10th Cir.1973) (upholding constitutionality of perjury statute and noting that it punishes “specific conduct that infringes a substantial government interest”).

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Determining the protections for ...otherwise unprotected speech is a delicate task. Our guide in this undertaking is the majority opinion of Justice Antonin Scalia in R.A.V., a landmark case declaring a St. Paul ordinance banning certain cross burnings to be unconstitutional. Id. at 391, 112 S.Ct. at 2547. St. Paul punished cross burning as a hate crime, but only punished the activity when it intimidated based on race, color, creed, or gender. Id. at 380, 112 S.Ct. at 2541. Although cross burning was “proscribable” as fighting words, the Court pointed out that the First Amendment would not allow an ordinance prohibiting only those [proscribable] works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well....

Thus, “[t]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” Id. at 384, 112 S.Ct. at 2543. St. Paul's selective cross-burning ordinance, though it criminalized proscribable “fighting words,” improperly discriminated based on content by only applying to certain topics (e.g., race, gender). Id. at 391, 112 S.Ct. at 2547. What was worse, according to the Court, was that the subclassification amounted to viewpoint discrimination because, under the ordinance, “fighting words” that do not themselves invoke race, color, creed, religion, or gender-aspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. [Under the ordinance, o]ne could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis de Queensberry 5 rules.

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In accordance with R.A.V., it is clear that the state may not regulate the use of the intentional falsehood “based on hostility-or favoritism-towards the underlying message expressed.” See id. at 386, 112 S.Ct. at 2545 (discussing fighting words as “mode of speech” that can be regulated but not for its underlying message). The provision challenged in this case punishes only those known falsehoods that are critical of police conduct. Minn.Stat. § 609.505, subd. 2. Like the ordinance invalidated in R.A.V., this distinction singles out a certain viewpoint for punishment: knowingly making false statements that assert or confirm an allegation of an officer's misconduct is criminal, while knowingly making false statements to absolve an officer of wrongdoing is not. This distinction is problematic for two main reasons:

First, punishing only false statements critical of police officers runs afoul of the basic principle that laws cannot exempt otherwise punished expression because the statement expresses approval of the government. See Schacht v. United States, 398 U .S. 58, 63, 90 S.Ct. 1555, 1559 (1970) (considering a federal statute that criminalized unauthorized wearing of a military uniform except in theatrical performances that do not discredit the armed forces and holding that a statute that “leaves Americans free to praise the war in Vietnam but can send persons ․ to prison for opposing it ․ cannot survive in a country which has the First Amendment”). “It is vital to our form of government that press and citizens alike be free to discuss and, if they see fit, impugn the motives of public officials.” Janklow v. Newsweek, Inc., 788 F .2d 1300, 1305 (8th Cir.1986). The challenged provision of Minn.Stat. § 609.505, subd. 2, defies this principle by singling out only critical statements about government actors.

Second, from a practical standpoint, the distinction unevenly constrains one side of discussion on a highly charged, public issue. See R.A.V., 505 U.S. at 391, 112 S.Ct. at 2547-48. In disputes over the propriety of police conduct, the resolution of allegations often comes down to the credibility of the complainant, the accused, or other witnesses and police officers. Chaker, 428 F.3d at 1226; see Susan Bandes, Tracing the Pattern of No Pattern: Stories of Police Brutality, 34 Loy. L.A. L.Rev. 665, 669 (2001) (“Questions of credibility are of paramount importance in resolving brutality claims, since most brutality takes place in secret․”). Knowingly making false statements that attempt to absolve a police officer of misconduct can compromise a meritorious case. The state cannot allow pro-police witnesses to “fight freestyle” by tolerating them making knowingly false statements that cover up police misdeeds but impose “Queensberry rules” on complainants asserting police misconduct by exposing them to the risk of criminal sanctions if their complaints are later determined to be misrepresentations. See R.A.V., 505 U.S. at 392, 112 S.Ct. at 2548.

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Minn.Stat. § 609.505, subd. 2 criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct. Because the distinction between false critical information and false exonerating information discriminates based on the viewpoint of the speaker and does not fit under a recognized exception to content discrimination, this subdivision of the statute violates the First Amendment. We reverse the judgment on count I and remand for the district court to address the lesser-included offense and resentence.

 The case is State v. Crawley, No. A09-1795, decided September 28, 2010.

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