State Of Minn. v. Crawley

• Decision Date: 28 September 2010
• Docket Number: No. A09-1795.,A09-1795.
• Citation: 789 N.W.2d 899
• Parties: STATE of Minnesota, Respondent, v. Melissa Jean CRAWLEY, Appellant.
• Court: Minnesota Court of Appeals

789 N.W.2d 899

STATE of Minnesota, Respondent,

v.Melissa Jean CRAWLEY, Appellant.

No. A09-1795.

Court of Appeals of Minnesota.

Sept. 28, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus by the Court

Minn.Stat. § 609.505, subd. 2 (2006), which criminalizes knowingly making false statements that allege police misconduct, but not knowingly making false statements to absolve police, violates the First Amendment's prohibition against viewpoint discrimination.

Lori Swanson, Attorney General, St. Paul, MN; and Charles E. MacLean, Winona County Attorney, Stephanie E. Nuttall, Thomas E. Gort, Assistant County Attorneys, Winona, MN, for respondent.

David W. Merchant, Chief Appellate Public Defender, Jodie L. Carlson, Assistant Public Defender, St. Paul, MN; and Scott M. Flaherty, Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.

Mary Vasaly, Abigail Richey-Allen, Sarah Riskin, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN; and Teresa Nelson, American Civil Liberties Union of Minnesota, St. Paul, MN, for amicus curiae.

Considered and decided by MINGE, Presiding Judge; JOHNSON, Judge; and HARTEN, Judge. ^*

OPINION

MINGE, Judge.

Appellant challenges her conviction of falsely reporting police misconduct, arguing that the statute violates the First Amendment's prohibition on viewpoint discrimination. Because the statute singles out a limited category of otherwise unprotected statements for criminalization and the limited category does not meet the exceptions to content-based discrimination established by the United States Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), we reverse.

FACTS

In 2008, appellant Melissa Crawley filed a report of police misconduct with the Winona Police Department. The report asserted that a Winona officer forged Crawley's signature on a medical release to obtain her medical records while investigating Crawley's claim that a third party had assaulted her. During an investigation into Crawley's police-misconduct complaint, a nurse said she witnessed Crawley sign the release.

The state charged Crawley with the criminal offenses of falsely reporting police misconduct, Minn.Stat. § 609.505, subd. 2, and falsely reporting a crime, Minn.Stat. § 609.505, subd. 1 (2006). Subdivision 2 provides,

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....

Crawley moved to dismiss the charge under subdivision 2 on grounds that the provision violates the First Amendment to the United States Constitution, arguing that the provision constitutes viewpoint discrimination by criminalizing only those who knowingly make false statements that criticize police. The district court denied the motion.

A jury found Crawley guilty on both counts. The district court dismissed the count under subdivision 1 as a lesser-included offense. It sentenced Crawley to 195 days in jail, 180 days stayed for two years with conditions. Crawley appeals the conviction, asserting the First Amendment challenge.

ISSUE

Does Minn.Stat. § 609.505, subd. 2, violate the First Amendment's prohibition against viewpoint discrimination?

ANALYSIS

Crawley argues that subdivision 2 violates the First Amendment by criminalizing speech based on the viewpoint of the speaker. ¹ Constitutional challenges are questions of law that this court reviews de novo. State v. Bussmann, 741 N.W.2d 79, 82 (Minn.2007). “[A]ny provision of law restricting [First Amendment] rights does not bear the usual presumption of constitutionality normally accorded to legislative enactments.” Johnson v. State Civil Serv. Dep't., 280 Minn. 61, 66, 157 N.W.2d 747, 751 (1968). In deciding a legitimate free-speech challenge, the court “proceed[s] with the understanding that the state bears the burden of establishing the statute's constitutionality.” State by Humphrey v. Casino Mktg. Grp., 491 N.W.2d 882, 886 (Minn.1992).

I. The First Amendment and Viewpoint Discrimination/R.A.V.

The First Amendment, applicable to the states through the Fourteenth Amendment, provides that government shall “make no law ... abridging the freedom of speech.” U.S. Const. Amend. I. ² The First Amendment's safeguard of expression on issues of public concern “is a fundamental principle of our constitutional system.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964) (quotation omitted). “ ‘It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.’ ” Id. (quoting Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941)).

These protections, however, are not absolute. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003). The government may, consistent with the Constitution, proscribe or regulate certain forms of expression. Id. This is because “our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” R.A.V., 505 U.S. at 382-83, 112 S.Ct. at 2542-43.

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, 41 L.Ed.2d 789 (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, 13 L.Ed.2d 471 (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, 85 L.Ed. 598 (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. ³ As harmful conduct, the intentional falsehood is a mode of speech that can be regulated without regard to the substance of that speech. ⁴ 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”).

But American caselaw “surely do[es] not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government may regulate them freely.” R.A.V., 505 U.S. at 384, 112 S.Ct. at 2543 (quotation and modification omitted). Put another way, even though intentional falsehoods are subject to regulation, the government cannot pick and choose which falsehoods to prohibit so as to criminalize certain false statements but not others based on the content of the speech or viewpoint of the speaker. See id. at 383-84, 112 S.Ct. at 2543.

Determining the protections for such 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.

Id. at 381, 384, 112 S.Ct. at 2542-43. 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.

Id. at 391-92, 112 S.Ct. at 2547-48 (footnote added).

In accordance with R.A.V., ⁶ it is clear that the state may not regulate the use of the intentional falsehood ...