Matter of Welfare of A. J. B.

• Decision Date: 19 June 2019
• Docket Number: A17-1161
• Citation: 929 N.W.2d 840
• Parties: In the MATTER OF the WELFARE OF: A. J. B., Child.
• Court: Minnesota Supreme Court

929 N.W.2d 840

In the MATTER OF the WELFARE OF: A. J. B., Child.

A17-1161

Supreme Court of Minnesota.

Filed: June 19, 2019

OPINION

THISSEN, Justice.

This case requires us to determine whether two Minnesota statutes— Minn. Stat. § 609.749, subd. 2(6) (2018), the stalking-by-mail provision, and Minn. Stat. § 609.795, subd. 1(3) (2018), known as the mail-harassment statute—are unconstitutional under the First Amendment to the United States Constitution. The juvenile court and the court of appeals concluded that both statutes are constitutional. We hold that Minn. Stat. § 609.749, subd. 2(6), is facially overbroad and not subject to either a narrowing construction or severance of unconstitutional provisions. Accordingly, we reverse the decision of the court of appeals with respect to that statute. We also hold that Minn. Stat. § 609.795, subd. 1(3), is facially overbroad, but that the statute can be saved through severance of the constitutionally problematic language. Finally, because it is unclear whether appellant’s adjudication of delinquency for mail-harassment is based on the severed language, we reverse the adjudication under Minn. Stat. § 609.795, subd. 1(3), and remand to the juvenile court.

FACTS

In March 2016, three high school students, appellant A.J.B. and two friends, saw and discussed several tweets that fellow student M.B. had posted on the social media platform Twitter referencing girls at the school. In response, A.J.B. created an anonymous Twitter account and, in a two- to three-hour period, posted approximately 40 tweets about M.B. Nearly all of the tweets "mentioned" M.B. by including his Twitter username in the tweet.¹ A.J.B.’s purpose was to elicit a negative response.

Essentially all of the tweets posted by A.J.B. and directed at M.B. contained cruel and egregious insults. One tweet contained a checkerboard of images with M.B.’s face and a caption reading, "Click the Autistic Child." Several tweets encouraged M.B. to commit suicide, encouraged M.B. to try a new cologne called "Anthrax," and suggested that M.B. kill himself by drinking bleach. Still other tweets referred to M.B. as a homosexual and used homophobic language, insults, and slurs, and called for the death penalty for gay individuals. Others insulted M.B.’s language skills, social skills, handwriting, personal interests, and involvement at school, and implied that his parents did not want him to be born. Put simply, over the course of two to three hours, A.J.B. dispatched an unrelenting torrent of cruel tweets at M.B.—an individual diagnosed with autism and Attention Deficit Hyperactivity Disorder—designed to "teach [him] a lesson." As the juvenile court put it, "[t]o say these posts are merely mean minimizes the degree of A.[J.]B.’s conduct ... [the posts] are cruel and go beyond any measure of human decency."

Several days later, A.J.B.’s tweets came to the attention of his high school’s dean of students. The dean spoke to M.B. about the messages. M.B. had not yet seen the tweets, but when he viewed them, he became extremely upset. M.B. later testified that the tweets made him want to commit suicide and that he held a knife near his chest as a result. M.B. also testified that he was afraid to return to school for fear of being attacked. He sought the assistance of a psychiatrist and a social worker. After an internal school investigation, A.J.B. admitted to the dean that he created the anonymous Twitter account and sent the tweets that mentioned M.B.

A.J.B. was charged with one count of gross-misdemeanor stalking by use of the mail in violation of Minn. Stat. § 609.749, subd. 2(6), and one count of misdemeanor harassment by use of the mail in violation of Minn. Stat. § 609.795, subd. 1(3). A.J.B. filed a pretrial motion to dismiss the charges, arguing among other things that the statutes were facially unconstitutionally overbroad in violation of the First Amendment and as applied to him. The juvenile court denied his motion. Just prior to trial, the State filed an amended juvenile petition, charging A.J.B. with an additional count of felony stalking in violation of Minn. Stat. § 609.749, subd. 3(a)(1) (2018), which requires the same proof as the gross-misdemeanor stalking charge but with an added element of demonstrating that the stalking occurred because of the offender’s bias toward the victim’s disability.

A.J.B.’s case went to trial. He was found guilty beyond a reasonable doubt on all three charges and adjudicated delinquent of gross-misdemeanor stalking under Minn. Stat. § 609.749, subd. 2(6), and harassment by use of the mail under Minn. Stat. § 609.795, subd. 1(3).² In a published decision, the court of appeals rejected A.J.B.’s constitutional challenges and affirmed his adjudications for stalking by mail and mail harassment.

In re A.J.B. , 910 N.W.2d 491, 502–03 (Minn. App. 2018). We granted A.J.B.’s petition for review.

ANALYSIS

On appeal, A.J.B. argues that his adjudications under the stalking-by-mail provision and mail-harassment statute must be vacated as contravening the First Amendment. Before turning to his specific arguments, we set out background principles that will guide our analysis. The First Amendment to the United States Constitution states that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. It applies to the states through the Fourteenth Amendment. State v. Washington-Davis , 881 N.W.2d 531, 538 (Minn. 2016) (citing 44 Liquormart, Inc. v. Rhode Island , 517 U.S. 484, 489 n.1, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) ).

"[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Ashcroft v. Am. Civil Liberties Union , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omitted) (citation omitted). The Supreme Court has stated that the First Amendment does not permit "the Government to imprison any speaker [because] his speech is deemed valueless or unnecessary, or [because] an ad hoc calculus of cost and benefits tilts in the statute’s favor." United States v. Stevens , 559 U.S. 460, 471, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Rather, the First Amendment "itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs" such that the "Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it." Id. at 470, 130 S.Ct. 1577. Further, "[o]f bedrock importance is the principle that the First Amendment’s protections extend beyond expressions ‘touching upon a matter of public concern.’ " State v. Tracy , 200 Vt. 216, 130 A.3d 196, 201 (2015) (quoting Connick v. Myers , 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ).

Of course, First Amendment protections are not limitless. There is a point where First Amendment protections end and government regulation of speech or expressive conduct becomes permissible. Exceptions to First Amendment protections generally fall into several delineated categories that include speech or expressive conduct designed to "incite imminent lawless action," "obscenity," "defamation," "speech integral to criminal conduct," "so-called ‘fighting words,’ " "child pornography," "fraud," "true threats," and "speech presenting some grave and imminent threat the government has the power to prevent." United States v. Alvarez , 567 U.S. 709, 717, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (citations omitted). The Supreme Court has been reluctant to expand these categories of unprotected speech. See Stevens , 559 U.S. at 472, 130 S.Ct. 1577 ("Our decisions ... cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.").

First Amendment principles apply with equal force to speech or expressive conduct on the Internet. There is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to online speech. Reno v. Am. Civil Liberties Union , 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). No matter what changes occur to technology, "basic principles of freedom of speech ... like the First Amendment’s command[ ] do not vary when a new and different medium for communication appears." Brown v. Entm't Merch. Ass'n , 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (internal quotation marks omitted) (citation omitted).

We fully acknowledge that bullying, stalking, and other forms of harassment are serious problems in our society. The Legislature’s interest in protecting all Minnesotans, and particularly our more vulnerable neighbors, from such conduct is proper and serious. We also understand the challenge of narrowly crafting legislation that provides meaningful protection from bullying and harassment within the constraints of the First Amendment. And we certainly do not believe that crafting such legislation is impossible. See, e.g. , Rew v. Bergstrom , 845 N.W.2d 764, 776–80 (Minn. 2014) (upholding Minnesota’s order for protection statute, Minn. Stat. § 518B.01, subd. 6a (2012), against a First Amendment prior restraint and facial invalidity challenge). Accordingly, we tread carefully as we balance the constitutional demands of the First Amendment against society’s interest in protecting Minnesotans' safety, health, and welfare.

We may reverse a conviction for violating the First Amendment if we determine that the statute is unconstitutionally overbroad on its face. A statute may be facially overbroad in violation of the First Amendment when "it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights." State v. Machholz , 574 N.W.2d 415, 419 (Minn. 1998). Because of the fear of a "chilling effect" on speech, the traditional rules of standing have been altered in the First Amendment context to allow litigants...