UPDATE CRIMINAL DEFAMATION
As previously discussed, we have been fighting the constitutionality of the Minnesota Criminal Defamation statute for sometime. After we successfully obtained a full dismissal of all charges for a client in Blue Earth County, we picked up another Criminal Defamation case out of Isanti County. The prosecutors held firm in that case and refused to dismiss the charges. The district court judge also denied our motions to have the charges dismissed. We have since filed an appeal with the Minnesota Court of Appeals seeking a review of the district court judge’s decision. Professor Eugene Volokh of the UCLA School of Law has joined the appeal as an amicus curiae, which essentially means he’s taken a position supporting our argument that the Minnesota Criminal Defamation statute is unconstitutional. The Court of Appeals has not scheduled oral argument, yet. For those interested, a link to our appellate brief and Professor Volokh’s supporting brief is below. We’ll be sure to provide an update when the appeal is scheduled for argument.
The state has filed its responsive brief. The state argues that the Criminal Defamation statute does not unnecessarily criminalize protected speech and, therefore, the statute is not overbroad. The state also argues that the facts in this appeal deal with private speech between private individuals and, therefore, the speech has less constitutional protection which the state can rightfully punish. Finally, the state argues that if the Court of Appeals were to find the statute impermissibly limits the defense of truth, that the Court can simply delete the impermissible language from the statute and, therefore, the statute would then be constitutional.
The state completely misses the boat. While it is true that speech on matters of purely private concern between private individuals has less constitutional protection than speech on matters of public concern, it is still absolutely protected if true. That is the major shortcoming of the Minnesota Criminal Defamation statute.
SPEECH, REGARDLESS OF THE TYPE, ENJOYS ABSOLUTE CONSTITUTIONAL PROTECTION IF TRUE. IN ORDER TO CONSTITUTIONALLY PUNISH SPEECH, A STATE STATUTE MUST PROVIDE FOR THE ABSOLUTE DEFENSE OF TRUTH.
Minnesota’s Criminal Defamation statute limits the availability of truth as an absolute defense of truth by placing a burden on the speaker to show the statement was made for good motives and justifiable ends. This is an impermissible constitutional limitation on the absolute defense of truth. Moreover, although the facts of this case may deal with private speech between private individuals, the appeal focuses on what’s called the “face of the statute.” Our argument is the statute unconstitutionally punishes all types of speech so the statute itself is facially invalid. The state completely fails to address this argument.
IN ORDER TO SURVIVE OUR FACIAL ATTACK, THE STATE ARGUES THE COURT OF APPEALS COULD SIMPLY DELETE THE THE “GOOD MOTIVES AND JUSTIFIABLE” ENDS LANGUAGE FROM THE STATUTE AND, THEREFORE, THE STATUTE WOULD THEN PROVIDE FOR AN ABSOLUTE DEFENSE OF TRUTH.
This argument asks the Court to re-write a statute, which is not a function of our courts. It is well settled law that courts should not engage in re-writing state statutes. Courts interpret statutes; they do not write them. If the state wants the statute amended, it needs to take that issue up with the Minnesota legislature.
A link to the state’s full brief is below.