The Volokh Conspiracy
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From Christian Action League of Minn. v. Freeman, decided last week by the Eighth Circuit, in an opinion by Judge Jonathan Kobes, joined by Judge Raymond Gruender:
Minnesota Statute § 609.748(2) allows victims to obtain restraining orders against their harassers…. CAL is a non-profit run by Ann Redding that opposes pornography and sexual exploitation. Its roughly 150 members advocate against sexually oriented publications. One of those publications was City Pages, a Minneapolis newspaper owned by the Star Tribune. Since 2010, CAL has publicly opposed companies that advertise in City Pages. CAL's members believe that, since City Pages runs advertisements for sexually oriented businesses, companies that advertise in City Pages are tacitly endorsing those businesses. CAL primarily advocates through postcards, letters, and emails directed at City Pages' advertisers.
R. Leigh Frost is a lawyer who advertised her firm in City Pages. After Redding noticed one of Frost's advertisements, she sent Frost a postcard asking her to stop buying ad space. The card said, "Porn tears families apart. City Pages promotes strip clubs and porn. As a woman, are you ok with that?" Not long after, Frost's firm received an email and another postcard expressing the same sentiment.
Despite Frost asking CAL to stop contacting her, she received yet another postcard about a week later. Fed up with CAL's messages, Frost filed a petition for a harassment restraining order (HRO) under Minnesota Statute § 609.748(2), which provides that "[a] person who is a victim of harassment … may seek a restraining order." Among other things, it defines harassment as "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target." The day after Frost filed her petition, a state court judge issued an HRO against CAL. A few months later, the parties settled and the state court vacated the HRO.
CAL sued Mike Freeman, the Hennepin County Attorney, seeking "declaratory relief and a permanent injunction prohibiting Freeman from prosecuting any HRO under the Statute." The Eighth Circuit concluded that CAL's speech is clearly protected by the statute—and thus that any future HROs barring repetition of CAL's speech would be unconstitutional—but also held that this was so clear (despite the state court's having issued an HRO in the past) that CAL lacked standing and thus no formal declaratory judgment or injunction would be issued:
The plain text of the Statute is ambiguous as to whether it criminalizes CAL's speech. CAL wants to repeatedly contact, via email and postcards, companies who support sexually oriented businesses. The Statute prohibits "harassment," which includes "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect … on the … privacy of another, regardless of the relationship between the actor and the intended target." CAL argues that this language criminalizes its plan to persuade advertisers to boycott City Pages. If that's true, then CAL has been injured because the Statute has chilled its arguably constitutionally protected speech.
Freeman, however, argues that postcards and emails to advertisers don't have a "substantial adverse effect … on the safety, security, or privacy of another." He claims that "[c]onduct that is only offensive, argumentative, or inappropriate," like CAL's, "does not constitute harassment." If Freeman is correct, then the Statute doesn't criminalize CAL's conduct, and CAL doesn't have standing. Because either interpretation is plausible, the Statute is ambiguous….
[T]he constitutional savings canon, which dictates that "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score[,]" … strongly supports Freeman's interpretation that CAL's speech isn't criminalized by the Statute. CAL wants to write advertisers to encourage them to stop supporting sexually oriented businesses—what the Supreme Court has dubbed "core political speech." Accordingly, adopting CAL's interpretation would require us to cast doubt on the constitutionality of the Statute. This factor weighs heavily in favor of Freeman's interpretation that the Statute doesn't prohibit CAL's speech.
The noscitur a sociis canon also supports Freeman's interpretation. This canon, often expressed as "a word is known by the company it keeps," dictates that we should "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words." This is sometimes also referred to as the "word-association canon." For instance, a statute covering "motor vehicles, motorcycles, industrial and construction equipment, [and] farm tractors" would not cover electrical wiring, even though that is technically "industrial equipment."
This canon suggests that we should narrowly interpret the Statute's definition of "harassment." Harassment is defined as:
(1) a single incident of physical or sexual assault, a single incident of harassment under [Minnesota's stalking statute], a single incident of nonconsensual dissemination of private sexual images under [Minnesota's revenge porn statute], or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target;
(2) targeted residential picketing; and
(3) a pattern of attending public events after being notified that the actor's presence at the event is harassing to another.
The items listed before repeated unwanted words—sexual assault, stalking, and revenge porn—make CAL's emails and postcards look trivial by comparison. When considering the examples surrounding "repeated … unwanted acts [or] words … that have a substantial adverse effect … [on] privacy," it's clear that the Minnesota legislature only meant to capture truly egregious conduct, not the political speech that CAL engages in. In short, stalking and a few political postcards are not birds of a feather.
Finally, … [i]n Dunham v. Roer (2006), the Court of Appeals of Minnesota held that the Statute's definition of "harassment" does not include constitutionally protected speech. It reasoned that "the language of the statute is directed against constitutionally unprotected 'fighting words' … 'true threats' … and speech … that … is in violation of one's right to privacy." As a result, the court held the Statute to be narrowly tailored and constitutional. Because "state appellate court decisions are highly persuasive and should be followed when they are the best evidence of state law," this weighs heavily in favor of Freeman's interpretation.
We are convinced that the Minnesota Supreme Court would not interpret the Statute's definition of "harassment" to cover CAL's speech. As a result, nothing CAL wants to do is criminalized by the Statute—it is free to encourage advertisers to oppose sexually oriented businesses….
Chief Judge Lavenski Smith dissented:
I agree with the majority that the Statute is ambiguous. An admittedly ambiguous statute together with solid evidence that the statute has been construed—by a court—to forbid the conduct in question should suffice to show that such conduct is "arguably" proscribed by the Statute. Here, Redding and CAL have demonstrated that the Statute has in fact been construed to proscribe their conduct. Surely, this showing clears the relatively low hurdle needed for standing.
Finally, injury-in-fact in the context of a First Amendment pre-enforcement challenge equates to "[r]easonable chill." Were Redding and CAL "objectively reasonable" in refraining from their intended course of conduct? As they had recently been restrained by court order imposed under Minnesota Statute § 609.748, their decision to chill their speech would seem to meet that test.
The majority responded to the dissent thus:
The dissent argues that even if CAL's conduct isn't prohibited by Minnesota law, CAL still has standing to sue because it was previously subject to an HRO. There's certainly intuitive appeal to that argument. After all, the fact that a statute has been enforced against someone in the past can give rise to an inference of future enforcement.
Nevertheless, … here there is binding Minnesota caselaw holding that the Statute doesn't apply to speech like CAL's. See Dunham ("[T]he harassment statute only regulates speech or conduct that constitutes `fighting words,' `true threats,' or substantial invasions of one's privacy.").
The only person who has obtained an HRO against CAL is R. Leigh Frost, who is not a party to this litigation…. Because there is no allegation that the Hennepin County Attorney has ever enforced the Statute against CAL's speech or similarly protected speech—or has any plans to do so in the future—CAL lacks standing.
Here is an excerpt from County Attorney Freeman's brief that discusses the "privacy" question:
Second, the communications did not have a substantial adverse effect on Frost's privacy. The communications from CAL and Redding were sent only to the addresses that Frost Law Firm publicly advertised. Frost Law Firm's City Pages ad included the law firm's business address, phone number, and public website, and the website contained an email address for the firm. The postcards from CAL and Redding were sent to Frost Law Firm's business address, and the email was sent to Frost Law Firm's business email. CAL and Redding did not send any communications to Frost's home or to her family, friends, or clients. Moreover, the communications did not contain personal or sensitive information about Frost or Frost Law Firm.