Archive for the 'Minnesota Law' Category

MPR: Minnesotans are part of the copyright controversy over lawsuits alleging illegal porn downloads

May 20, 2013

Minnesota Public Radio’s Martin Moylan has a nicely done piece involving tactics that porn companies and their lawyers are using to combat what they see as copyright violations involving downloads.

Similar efforts exist involving owners of stock photos who, for example, sue mom-and-pop businesspeople over photographs that web-site builders used without the owner’s consent.  I’ve represented one such Minnesota business, and there are many more who need help.

The statutes authorizing lawsuits over such alleged illegalities typically have attorneys’ fees provisions in them, so such litigation can be attractive to lawyers.  The potential defendants in a tough spot:  pay up a settlement, or pay a lawyer to try to defend the case.


Recent Minnesota Supreme Court decisions are unfriendly to free speech

August 20, 2012

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.

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.

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.

“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.


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.

$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.

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.

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.”

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.