Archive for the 'Minnesota Law' Category

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Minnesota law banning emails and other communications for 50 years is constitutional

December 28, 2011

When a Minnesota court orders that an alleged domestic abuser cannot email, message, or otherwise contact the victim for 50 years, there is no First Amendment violation, according to a Minnesota Court of Appeals decision issued Monday.

A Minnesota man brought an appeal to challenge a law that authorizes courts to issue “orders for protection” 50 years in duration under certain circumstances.  In the case, the man had pleaded guilty assault and violating a prior order that his wife sought for her protection.  After the husband served time for stalking and harassing another woman, he again was arrested for violating the order issued with respect to his wife.

So the court issued another order for 50 years, pursuant to a Minnesota statute that forbids an alleged abuser from having any contact with the victim “whether in person, by telephone, mail or electronic mail or messaging, through electronic devices, through a third party, or by any other means.”

The husband’s claim was that the statute constituted a prior restraint on his right to engage in expression.  The court of appeals disagreed, likening the law to those that provide protest-free buffer zones around abortion clinics.  The court observed that such laws ban conduct, not speech.  The court went on to explain that state government has a “strong intrest in preventing violence in a domestic setting,” and that the law was narrowly tailored because it “applies only to the most persistent abusers.”

Fifty years is, indeed, a long time.   But the court was correct to characterize the law as one addressing actions, not speech.  The law bans all contacts with the victim, regardless of what the alleged abuser might say.  And that, under the First Amendment, is permitted.

The decision is the second this month in which the court rejected First Amendment challenges to court orders arising from domestic relations.  Earlier in December, the court ruled that blogging about a former girlfriend can constitute harassment and that a Minnesota man could be ordered to remove his blog from the internet.

Posted in First Amendment, Internet law, Minnesota Law | Leave a Comment »

Court of appeals orders for blog to be shut down

December 21, 2011

The Minnesota Court of Appeals has ruled that blogging can constitute harassment, and has ordered a Minnesota man to remove his blog from the internet.

As the decision released last week explains, the blog at issue chronicled the blogger’s ongoing issues with a former girlfriend.  Writing in the third person, the blogger wrote about his former girlfriend’s alleged sexually and physically abusive relationships, and questioned the woman’s mental health.  He publicized and promoted the blog by sending electronic messages to his former girlfriend’s relatives and friends, and also set up fake Facebook identities to post the blog to other Facebook users.

The woman already had a no-harassment order in place, and after the blogging she went to court to successfully obtain another one—one that specifically prohibited “[a]ny email or other electronic message contact with third-parties that contains any material concerning [the former girlfriend] that affects or intends to adversely affect [her] safety, security, or privacy.”  The court’s order also directed the blogger to remove the blog form the internet.

On appeal, the blogger claimed blogging is “comparable to publishing pamphlets and leaving them on your front doorstep for the public,” and that the First Amendment protected his blogging.  The Minnesota Court of Appeals disagreed.  The court acknowledged that “material published on the Internet receives the same level of protection as information published in other media.”  However, the court  held that “the constitution does not protect harassing words” and likened the blog to “fighting words” that that First Amendment does not protect.

The outcome makes sense, but the court’s reasoning could have been clearer.  Its blanket statement that “harassing words” cannot receive First Amendment protection is not entirely correct.  As the United States Supreme Court made case in the landmark case of R.A.V. v. City of St. Paul, when government seeks to ban words instead of conduct, there might be an unconstitutional—and for many, an unfortunate—result.  (In the case of R.A.V., an invalidated criminal conviction for cross-burning.)

But on balance, what I think the  court of appeals was attempting to articulate was that the act of blogging can, under certain circumstances, constitute harassment.  And here, apparently, the blogger went beyond merely posting his content and took affirmative acts to make sure people who knew his former girlfriend saw his blog—efforts that, according to the court opinion, caused the former girlfriend distress.

And that, in the eyes of the law, is not protected conduct under the First Amendment or otherwise.

Posted in Blogging, Internet law, Media Law, Minnesota Law | 2 Comments »

“Sealed” absentee ballots from 2008 Senate election shielded from public view

November 23, 2011

The Minnesota Supreme Court has rejected a request from several television stations to make public “sealed” absentee ballots  that were never counted during the 2008 Senate election.

KSTP-TV (Channel 5) in the Twin Cities, WDIO-TV (Channel 10) in Duluth, and other Hubbard Broadcasting-owned stations sent letters to each Minnesota county to try to get access to the ballots from the election, which Al Franken won 312 votes.

Ramsey County refused, so the TV stations sued.  The case eventually found its way to the Minnesota Supreme Court, which ruled last week that the ballots are to remain sealed from public view.

To reach the ruling, the court took a highly literal interpretation of the Minnesota Government Data Practices Act, a law that presumes government data are public subject to numerous exceptions.  Among those exceptions are “sealed absentee ballots prior to opening by an election judge.”

The TV stations argued that such a ruling would constitute a “simplistically literal” interpretation of the Data Practices Act, which is aimed toward making data public and not private.  However, as frequently occurs in cases of this type, the supreme court essentially threw the issue toward the legislature, which enacted the law in the first place.  If the legislature wants to change the law, it can.

Had the ballots been made public, it certainly is possible that Norm Coleman and not Al Franken could have emerged as the “real” winner.  As it stands, Minnesotans are left to guess.

 

Posted in Election '08, Media Law, Minnesota Law, Open Records, Television | Leave a Comment »

The constitutional battle over a First Amendment right to sleep could begin tonight

November 14, 2011

Hennepin County’s ban on sleeping outside the county Government Center takes effect tonight, so arguments regarding the ban’s constitutionality might awaken.

This morning, Minnesota Public Radio quoted Hennepin County Board Chairman Mike Opat as saying the ban is proper because the constitution does not prohibit rules that preserve public safety.  That much is true.  But there does not appear to be an explanation for how public safety begins being at risk tonight, but was not at risk over the past month.  Maybe the county is trying to prevent protesters from freezing to death, even though frigid temperatures are not forecast.

I’ve blogged previously about the Occupy adherents’ and their “media” (specifically their handmade signs, which the county wants to remove) as well as about whether sleeping in a public area can be considered “expressive activity.”  On that last point, Occupy would find imporant authority in a 1984 United States Supreme Court case that left open the possibility that sleeping is, essentially, speech.

In that case, the protesters hoped to draw attention to homelessness by camping in Layfayette Park, a national park across from the White House.  So too with the Occupy Minnesota protesters, for whom residential home foreclosures are chief concern.  And on the foreclosure issue, Occupy Minnesota has rightfully claimed success.

The 1984 case is very much on point.  Earlier this month, Occupy Sacramento recognized that when challenging a Sacramento city ordiance ordinance that prohibits staying in parks overnight.  In a Nov. 4 decision, a federal judge in California acknowledged the 1984 case and that “the act of sleeping out could all be expressive activity,” but explained that “nonetheless” the United States Supreme Court permitted the National Park Service to remove the slumbering protesters.  For that reason (among others), the federal judge refused to enjoin the Sacramento ordinance’s enforcement.

So Occupy Minnesota adherents do have a “sleeping is speech” argument should they be arrested.  But the battlle might be tough.

Posted in First Amendment, Minnesota Law, Occupy Minnesota | Leave a Comment »

$1 million defamation verdict against KSTP called state’s largest ever

November 8, 2011

The Star Tribune reported today that a a Dakota County jury has returned a $1 million defamation verdict against KSTP-TV for stories it aired about a holistic healer.  The newspaper reports that the jury found the broadcaster had acted with “actual malice.”  Actual malice is generally synonymous with recklessly disregarding the truth.

It is believed to be the largest defamation verdict in Minnesota.  The largest of which I had been aware was a $676,000 verdict against the Duluth News-Tribune, which was upheld on appeal in 1994.

Posted in Defamation, Minnesota Law, Minnesota Media | 1 Comment »

Attempt to use “SLAPP” statute slapped down

October 25, 2011

The Minnesota Court of Appeals has rejected a northwestern Minnesota farmer’s attempt to use Minnesota’s often-overlooked anti-“SLAPP” statute to put an end to a lawsuit that was filed against him after he refused to let an oil-pipeline company enter his property.

“SLAPP” stands for “strategic litigation against public participation.”  Anti-SLAPP laws let defendants file motions to dismiss lawsuits that are filed in response to citizens’ attempts to influence governmental projects.  Classic examples are when people get sued for speaking at a public meeting or for passing out leaflets critical of a development project.  Blogging about government might be protected too, but that remains to be seen.

Few lawyers even know the anti-SLAPP law exists.  The theory behind the law is that if people can get sued for speaking out for or against development projects, we’ll all be chilled into silence and in the end there will be no freedom of speech.

But speech was not at issue in the northwestern Minnesota case.  The farmer placed hay bales on his property in an attempt to hinder the pipeline company’s access to the Alberta Clipper pipeline, which is being built to deliver oil from Canada to the Twin Ports.  The farmer’s argument was that because the pipeline company was a public-service corporation, the company essentially was part of the government — and the hay bales were designed to procure favorable governmental action.

The Minnesota Court of Appeals would have none of it, and it let the case against the farmer go forward.  Similar cases around the country generally stress what the purpose of SLAPP laws is generally understood to be:  to ensure freedom of speech.

Posted in First Amendment, Media Law, Minnesota Law | Leave a Comment »

A shoot-to-kill “good Samaritan”?

October 23, 2011

The Pioneer Press is citing Minnesota’s “good Samaritan law” in its story about the still-unnamed guy who chased down an apparent armed robber and shot him dead in south Minneapolis Friday night.  The Strib also is  describing the shooter as a “good Samaritan” and is quoting a source who says the fatal shooting likely was legally justified.

Not so fast.

As the Minnesota Court of Appeals explained in a 2002 decision, the purpose of Minnesota’s good Samaritan law “is to encourage laypersons to help those in need, even when they are under no legal obligation to do so, by providing immunity from liability claims arising out of an attempt to assist a person in peril.”

Is an armed robber’s victim “in peril” when — as here — the mugger flees the scene?  Likely, no.  Plus, the law does not shield a gunman from criminal liability.  Further, Minnesota’s good Sam law, like all others, is intended to protect us against getting sued for not giving CPR properly or getting in an accident while driving an injured child to the hospital.  I’m not aware of anything to suggest it was intended to shield a gunman from liability for chasing down and killing an apparent armed robber who was fleeing the scene of the crime.

The newspapers suggest that because the “good Samaritan” had a handgun permit, different rules apply.  They don’t.  The Minnesota “Personal Protection Act”  is not a license to use deadly force to protect or recover personal property such as a purse—let alone someone else’s. The Star Tribune quotes a firearms trainer and vice president of the Gun Owners Civil Rights Alliance who claims Minnesotans are “completely justified in shooting” if they give chase and the confrontation turned violent.  But arguably, such a “good Samaritan” who chases an armed robber knows the confrontation could turn violent and knowingly and voluntarily put himself in a situation where self-defense might very well be necessary.

All this being said, judging from commenters to the newspapers’ stories, many Minnesotans would find the killing justified, and as is typical a grand jury probably will decide whether the “good Samaritan” should be charged.   He very well might not be, and even if he is he might very well be acquitted.  But despite the newspaper reports, the gunman does not really fit the legal definition of “good Samaritan.”

Posted in Minnesota Law, Minnesota Media | 2 Comments »

Ely newspaper benefiting from judge’s “clear material error”

October 22, 2011

The Timberjay, a scrappy newspaper in Ely, is tussling to obtain documents related to school-construction projects in environmentally-aware northeastern Minnesota.  The paper’s target is Johnson Controls, a conglomerate that contracted to build two schools in the far-flung St. Louis County school district, Minnesota’s largest (geographically speaking).

The newspaper seeks a copy of a subcontract Johnson Controls made with Architectural Resources, Inc., a northeastern Minnesota architectural and engineering firm.  State documents suggest the Timberjay wants information about how much it will cost to operate water towers and water treatment facilities related to the new schools.

Johnson Controls refused to turn over the documents, claiming  Minnesota’s open-records law did not require disclosure.  Last month, an administrative law judge agreed and dismissed the Timberjay’s lawsuit.  But earlier this month, a chief administrative law judge reversed the ruling, characterizing it as a “clear material error” on the judge’s part.

The key issue is whether Johnson Controls performed a “government function” for the school district.  If so, it needs to turn over the documents so the newspaper can write about what it will cost taxpayers to operate the schools.

The latest ruling went the newspaper’s way, and the Duluth News Tribune reported today that a hearing is forthcoming because the  chief judge rejected an appeal.  Timberjay publisher and editor Marshall Helmberger said he fears Johnson Controls is trying to run up legal bills, while Johnson Controls told the newspaper it is simply trying to protect its subcontractor’s “confidential and propriety information.”

Both sides have good arguments, but it’s hard to argue that citizens don’t have a right to know what it will cost to operate their schools.

Posted in Minnesota Law, Minnesota Media, Open Records | Leave a Comment »

Minnesota funeral-protest law a step closer to unconstitutionality

October 21, 2011

A Minnesota statute that criminalizes funeral picketing appears to be on even shakier constitutional ground now that the federal appeals court that oversees Minnesota has enjoined enforcement of a similar Nebraska law.

The case was brought by Shirley Phelps-Roper, daughter of Fred Phelps, the minister of the controversial Westboro Baptist Church, whose web address of www.godhatesfags.com sums up the organization’s troublingly misguided campaign.  Among its beliefs is that God is punishing the United States for our general tolerance of people who are something other than straight.

Minnesota’s law was enacted in 2006 with the Westboro crew in mind.  The law makes it a crime for protesters to be within 500 feet of a funeral one hour before or after a service.  Nebraska’s law is similar, forbidding protests within 300 feet one hour before and two hours after a funeral.

Phelps-Roper asked a federal court to prevent Nebraska authorities from enforcing the law, contending that her First Amendment right to protest outweighed grieving family members’ rights to privacy.  A federal judge in Nebraska refused to enjoin the law’s enforcement.  But on Thursday, the Eighth Circuit Court of Appeals agreed that Phelps-Roper likely would succeed in her case and took the unusual step of ordering Nebraska to not enforce the law.

The court cited a prior decision in which it struck down a similar Missouri law.  The decisions follow the United States Supreme Court’s decision in Snyder v. Phelps, where the United States Supreme Court held that the First Amendment protects funeral protesting.

There’s little chance the outcome would be any different should the fringy Westboro fanatics take on Minnesota’s law.  The best solution is for the news media to exercise their First Amendment right to not cover these protests, which are appalling and simply not news.

Posted in First Amendment, Minnesota Law | Leave a Comment »

“Press” vs. Public: Does It Matter? Yes, In The Minnesota House

March 18, 2009

A showdown is brewing between the Minnesota House of Representatives and nontraditional media regarding who gets to record House proceedings.  And if this goes to court, the case could be groundbreaking for helping to determine who is the “press” and who is the “public,” and does it (or should it) really matter anymore?

Here’s the deal.  The House is assigning authority to its “Sergeant At Arms” to determine who gets to make audio and video recordings anywhere our elected House members do “business.”  This would include not only the House chamber, but also committee rooms, and arguably, I would think, “press conferences” and anyplace an elected House member shows her or his face.

A copy of the “application” is here.  Predicably, it requires applicants to identify their employer, whether they’re a member of a recognized journalism group or association, and the “long-term nature of your assignment.”  In other words, it licenses existing and largely “mainstream” media.  Also, stunningly, it imposes a prior restraint by banning applicants from “videotaping audience members.”

The reason behind all this?  For the “safety and security of all.”  Really?  How in the world does restricting audio and video recordings in a publicly accessible place affect safety and security?

The current and evolving generation of citizens journalists are understandably going nuts over this.  My buddy Jason Barnett at The UpTake is helping to lead the charge.  He talked about it on Channel 4 recently, but at a time when most Minnesotans are either in church, at brunch, or sleeping in.  (Channel 4 video here.)

Consume The UpTake’s coverage and read their take on the issue here.  They’re right on point.

So what precisely are our elected representatives scared of?  It is not at all clear, and the purported concerns over “safety” and “security” are wholly speculative.  Warning: Time and time again, courts have invalidated laws based on speculative fears when, as here, freedom of expression is at issue.

This appears to be yet another attempt by Minnesota officials to restrain expression in the name of keeping order and upholding morals.  These were the reasons behind our Legislature’s nineteenth century ban on newspapers publishing true details of public executions, its World War I-era laws targeted at anti-war protesters, and the horrible Public Nuisance Law of 1925 that authorized the state to shut down “nuisance” newspapers.  Amazingly, it was the Public Nuisance Law and the Minnesota Supreme Court’s refusal to invalidate it that finally led the United States Supreme Court to say in Near v. Minnesota that enough was enough, that the First Amendment applied not only to the federal government but also to the states.

Think our state is a place where everyone is above average when it comes to free expression?  Think again.  Near v. Minnesota is the reason why we have freedom of expression (not just freedom of the press) from coast to coast.  In the words of a Lutheran confirmation student, this is most certainly true.

Is Minnesota on the cusp of another legal revolution, one that would be expensive for state taxpayers?  Stay tuned.

Posted in First Amendment, Minnesota Law, Minnesota Media | 1 Comment »
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