A few years back, after John Arechigo landed a client in Mankato facing a charge of criminal defamation, Arechigo took his first close look at the statute and was instantly struck by a question: How the heck is this still on the books?
“I assumed that there must have been some challenge, at some time, but there just wasn’t. I had a hard time trying figure out why that was,” said Arechigo, who was champing at the bit to take a run at the law.
After a Blue Earth County District Court judge tossed the charge against his client in Mankato, Arechigo had to wait a few more years until another client was slapped with the seldom-invoked charge.
The wait paid off on Tuesday, when the Minnesota Court of Appeals ruled the state’s criminal defamation law was overbroad and unconstitutional.
“It’s been a busy couple of days here. I’ve gotten a lot of nice emails from fellow attorneys,” said the 36 year-old attorney, speaking on the phone from the St. Paul office of Arechigo & Stokka, the two-man firm he founded in 2007 with fellow Fargo native and Hamline alum Joshua Stokka.
Arechigo’s client in the case — Timothy Robert Turner, 50, formerly of Mora — was convicted at trial of two counts of criminal defamation in Isanti County District Court after admitting that he had posted the phone numbers and names of his ex-girlfriend and her 17-year-old daughter in sexually explicit advertisements on Craigslist. The mother contacted authorities after she and her daughter received phone messages and videos from men seeking sex.
The appeal had nothing to do with the sordid particulars of Turner’s case but rather the particulars of a statute that was drafted in 1890s and last revised in 1963.
Because the law was so clearly out of step with contemporary legal thinking, the appeals court’s ruling did not come as much of a surprise, according to Minneapolis attorney Erick Kaardal.
“Under modern standards of First Amendment jurisprudence, our view was that the statute was obviously illegal and we’re very happy the Court of Appeals agreed,” said Kaardal, who served as local counsel in the case for Eugene Volokh, the eminent UCLA law professor and creator of the legal blog, Volokh Conspiracy.
He pointed out that Volokh — who was brought into the case at Arechigo’s invitation — has been successful with similar challenges to antiquated criminal defamation laws in other states.
Under the Minnesota law, even truthful speech could be deemed criminal if the statements are not made with “good motives and for justifiable ends.” That’s an affront to the modern view of truth as an absolute defense to defamation, Kaardal said.
In the amicus brief, Volokh argued that the provision also presents a clear conflict with U.S. Supreme Court’s established holding that a “speaker’s motivation is irrelevant to the question of constitutional protection.”
If the constitutionality of the statute was so dubious, why was the decision so long in coming?
Most likely that’s because the statute hasn’t been used much, according to Mark Anfinson, the Minneapolis attorney and newspaper representative.
“I think there has long been some recognition among prosecutors that the statute had some tin cans tied to its back bumper in terms of constitutionality,” Anfinson said.
In terms of substance and procedure, Anfinson likened the decision to one of the most famous U.S. Supreme Court cases to come out of Minnesota in recent decades, R.A.V. v. City of St. Paul (1992). In that case, the court threw out the hate crime conviction of the 17-year-old defendant who burned a cross on a black family’s lawn, ruling that St. Paul’s bias-motivated crime ordinance was unconstitutional.
The public defender who argued the case before the high court did not defend his client’s actions, Anfinson pointed out, but instead attacked the hate crime ordinance on facial grounds; essentially that’s the same strategy that Arechigo and Volokh employed in the Turner case. (In a curious footnote, Edward Cleary — the public defender in R.A.V., now the Chief Judge of the Court of Appeals — served on the three-member panel that heard arguments in the Turner case).
With the defamation statute consigned to the junk heap for less than a day, state lawmakers were already mulling its potential replacement.
A day after the decision came down, Rep. John Lesch, DFL-St. Paul, called for the establishment of a stakeholder panel to help promulgate a constitutionally palatable “revenge porn” law. Lesch, who is also a city prosecutor in St. Paul, said “over 15” states have enacted such statutes.
He said the law should adhere to the “seven pillars of an effective revenge porn statute” outlined by the Cyber Civil Rights Initiative, an advocacy group dedicated to promulgating legal responses to the problems of online harassment and revenge porn.
Kaardal said he welcomes the coming debate, saying, “It’s time for the statute to be written in a way that conforms to our modern standards.”
For his part, Anfinson was more circumspect. “It would not be hard to redraft our criminal defamation statute to satisfy constitutional standards,” he said. “The question is whether we need it.”
For a long time, the criminal defamation statute was “preposterously irrelevant with hardly any functionality,” he said. And while the rise of social media has changed that, Anfinson thinks prosecutors probably have existing laws at their disposal to charge out cases.
What does the appeals court ruling mean for other individuals who have been convicted under the now-invalidated law?
The answer to that question is complicated, according to Ted Sampsell-Jones, a professor at William Mitchell and criminal appellate attorney.
Assuming the court was correct in its holding that the statute is “facially overbroad” — and Sampsell-Jones has technical reservations on that score — he said the ruling will void any convictions that are currently under appeal and, potentially, some convictions that are final.
But even if the court’s decision applies retroactively, he said it could prove tricky to clear procedural hurdles in some cases, particularly older ones.