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We are currently representing an individual in Blue Earth County, Minnesota who is charged with Criminal Defamation in violation of Minn. Stat. § 609.765.  We previously filed a motion to dismiss arguing the Minnesota criminal defamation statute is unconstitutional.  In our opinion, the Minnesota criminal defamation statute is overbroad because it punishes constitutionally protected free speech and does not provide for an absolute defense of truth.

The Minnesota criminal defamation statute was enacted in 1963.  In 1964, the United States Supreme Court issued its landmark opinion in New York Times Co. v. Sullivan. Later that same year, the U.S. Supreme Court issued another landmark decision in Garrison v. Louisiana.  NY Times and Garrison laid out the test for determining when speech is not protected by the First Amendment, and when, if ever, states can impose criminal punishment for speech.  The biggest holding from these cases is the explicit instruction from the Supreme Court that truth must be an absolute defense to any allegation of defamation.  Before this decision, most states’ criminal defamation statute provided for a defense of truth as long as the statement was made “with good motives and for justifiable ends.”  Following the NY Times and Garrison decisions, a number of states declared their criminal defamation statutes unconstitutional because they limited the defense of truth.  Limiting the defense of truth in a criminal defamation matter unfairly shifts the burden of proof to the accused to show that he or she had a good enough reason for making the statement.  This is contrary to our notion of criminal justice in which the burden is on the state to prove an accused’s guilt beyond a reasonable doubt.

Not only does the Minnesota criminal defamation statute fail to provide for an absolute defense of truth, but it also unfairly punishes speech on matter of public concern or comments made about Minnesota’s public officials.  People who choose to put themselves in the public spotlight – such as elected representatives – implicitly acknowledge that they are subject to increased criticism and public comment.  In order to be punished for commenting on a public official or a public official’s actions, the comment must  have been made with a level of actual knowledge that the comment was false.  The Minnesota criminal defamation statute does not contain this vital constitutional protection.  At least one Minnesota county attorney has publicly acknowledged that Minnesota’s criminal defamation statute is most likely unconstitutional.

While Judge Johnson may have denied our motion, the fight is not over.  We are currently exploring all options for an immediate pre-trial appeal.  The Minnesota ACLU, as well as noted law professor Eugene Volokh, have expressed interest in this case.

If you or someone you know is facing a charge of Minnesota criminal defamation – or any other criminal charge in Minnesota – contact our St. Paul criminal defense lawyers for a free consultation.  Our Minnesota criminal defamation lawyers will fight to have your charges dismissed.

Author Photo John T. Arechigo, Esq.

Attorney John Arechigo has a passion for criminal defense in St. Paul, MN. John received his J.D., from Hamline University School of Law and also carries a Bachelor of Arts from, The University of Minnesota. John was named Attorney of the Year for 2019 by Minnesota Lawyer. Additionally, John was also named as a 2019 Rising Star and was selected to Minnesota Super Lawyers in 2021. He devotes nearly 100% of his practice to defending individuals charged with a crime.

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