Summer has delivered two sizzling First Amendment decisions from the Minnesota Supreme Court, neither of which is good for online communicators.
The most recent decision came earlier this month. State v. Crawley involved a Minnesota statute that makes it a crime to knowingly file a false police report. In a 4-3 decision, the court held that even though the statute criminalizes expression based on its content–something the First Amendment abhors–the law was OK because it could be read to criminalize only defamatory speech, which is not protected by the First Amendment.
In other words, the Minnesota Supreme Court wrote language into a statute that doesn’t exist. In a dissent, Justice Stras called the court to the carpet and said the justices should not get in the business of writing statutes. It is hard to disagree.
The other decision, Tatro v. University of Minnesota, which was released in June, received more mainstream media play than Crawley. In fact, I talked about it when I was interviewed on Channel 9 last week.
In that case, the court ruled unanimously that the university could discipline a student in its morturary sciences program for making Facebook posts that most people would find to be, quite frankly, tasteless. The court acknowledged that the university was abridging freedom of speech but justified the ruling because the university had a policy prohibiting certain online communication.
From a free-speech perspective, Tatro is much less problematic than the recent Crawley case. At least the university had a policy. As for Crawley, all communicators, online and otherwise, should be concerned that the state’s highest court would rewrite a speech-restrictive statute as they did.
I would not be at all surprised to see the case end up in the United States Supreme Court, as a Minnesota case did 20 years ago. That case was R.A.V. v. City of St. Paul, where the nation’s high court disagreed with the Minnesota Supreme Court over a St. Paul ordinance that criminalized the messages that cross burnings are intended to convey. Interestingly, the Minnesota Supreme Court based its Crawley decison on R.A.V.
Interesting stuff. Stay tuned.