Federal judge says “no go” to East Grand Forks’ attempt to regulate adult media

August 1, 2012

Much of the law that protects the media comes from the world of adult media, and a dispute over an “adult” business ordinance in East Grand Forks, Minn., provides the latest chapter.

Last week, a federal judge took the fairly unusual step of enjoining the city from enforcing an ordinance against “Fantasysrus” because the ordinance potentially infringes on First Amendment rights. 

Judge John Tunheim ruled that the ordinance was too vague to be enforced because it did not define “adult uses” and permitted arbitrary enforcement.  As the judge explained:

The East Grand Forks city ordinance does not define “sexually oriented” and provides no guidance as to how much of the merchandise or activity must be sexually explicit or an “adult use” to trigger the ordinance. Consequently, an art gallery with some paintings of nudes, a dance studio that teaches belly dancing, a sauna that allowed nudity at certain times, or a bookstore selling Fifty Shades of Gray could be “sexually oriented” or not, depending on the discretion of the city official.

Judge Tunheim also ruled that because the ordinance provided no framework for differentiating between a “sexually oriented store” and a “sexually oriented bookshop,” the city got too much discretion over who could operate a business and who could not.

The decision is yet another reminder that the government has limited power to restrict not only the freedom of expression, but the freedom to purchase others’ expression—even when the expression has more to do with what goes on behind closed doors.


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.

Occupy Minnesota wins partial victory in federal court

November 29, 2011

Cutting off electricity has nothing to do with the First Amendment, but sleeping outside Hennepin County Government Center does.  Even so, the Occupy Minnesota tents need to go.   But their signs can stay.  And the “chalking” needs to stop.

Those were among the rulings from federal Judge Richard Kyle, who last week handed Occupy Minnesota adherents a partial victory in their ongoing effort to occupy the public plaza outside the Government Center.

Interestingly, the judge’s “sleeping is speech” ruling was based on a decision from balmy Fort Myers, Florida, where a federal court ruled that “tenting and sleeping” was protected as expressive activity.  Hennepin County had suggested that banning sleeping in frigid Minnesota was a matter of public safety.  Apparently, Judge Kyle trusts Minnesotans enough to know when to come  out of the cold.

However, as I predicted, he cited a 1984 case in which the United States Supreme Court held that the National Park Service was within its rights to prevent protesters from sleeping in Lafayette Park across from the White House.  As the judge explained, government may ban sleeping in public because doing so is a “valid time, place, and manner restriction” that does not violate the First Amendment.

The judge would have none of Occupy’s argument that cutting off  electricity has anything to do with the First Amendment.  He also ruled that the county was within its rights to prevent “chalking” on plaza property.

But significantly, he ruled that the Occupy signs can remain and he ordered the county to not enforce a resolution that bans the signs.  The county’s resolution contains an exception for signs “placed by county personnel related to county business.”  The judge explained that “this difference is crucial” because it creates a rule based on content of signs — specifically what the First Amendment forbids.

The decision was extremely well-reasoned and fair and based in practicality.  As the judge explained, Occupy adherents “are unlikely to leave the Plazas anytime soon,” so he ordered the parties to mediate their dispute as soon as possible.

“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.

Iowa leaves Minnesota in the dust with protections afforded to student newspapers

November 10, 2011

Neighboring Iowa and its appellate courts have led the way on issuing courageous, well-reasoned decisions that protect important rights.  First came gay marriage.  Now it’s students’ free expression.

On Wednesday, the Iowa Court of Appeals issued a decision that unambiguously protects the rights of high school students to learn journalism by doing, and also affirms the right of faculty advisers to let that learning happen.

At issue was the Iowa Student Free Expression Law, which the Iowa Legislature passed in 1989 in response to the United States Supreme Court’s decision in Hazelwood v. KuhlmeierHazelwood generally gave school administrators broad discretion to censor student newspapers, despite the Frist Amendment.  In response, Iowa and eight other states (not Minnesota) passed laws protecting students’ rights “to exercise freedom of speech, including the right of expression in official school publications.”  Exceptions arise when expression is obscene, libelous, encourages law- or rule-breaking, or encourages “substantial disruption of the orderly operation of the school.”

The law also expressly forbids “prior restraint of material prepared for official school publications,” specificies that student editors have the final say, and limits advisers’ roles to supervising “production” and maintaining “professional standards of English and journalism.”

The case that led to Wednesday’s decision arose in Waukon, Iowa, where the newspaper’s faculty adviser was reprimanded for an April Fools’ parody editon of the paper as well as a non-parody story about students who chew tobacco, which the school’s adminsitration contended had caused “material disruption” of the school.  The 25-page court decision recites some of the complained-of conduct, including the students’ “derogatory twist” of a rival school’s mascot name “Kee Hawks” into “Keysucks.” 

The appeals court explained that there was no evidence that the newspaper content had encouraged breaking the law or rules.  For example, with respect to the Keysucks name, the school district’s attorney “was unable to explain” how the twist had caused any disruption.  Rather, the school administration’s concerns were entirely speculative.  The court also held the content was not libelous and did not violate the “professional standards of journalism.”  The judges also took the remarkable step of ordering the school district to remove the advier’s reprimands from his employment file, explaining:

The purpose of section 280.22 is to allow students broader free expression. If a school district is entitled to sanction a journalism advisor for student publications that comply with section 280.22, the statutory protections will be eroded and student speech will be chilled. Removing the reprimands from Lange‟s personnel file is necessary to protect the free speech rights of Iowa students as contemplated by Iowa Code section 280.22.

On a day when when Facebook is alive with chatter about how poorly Penn State students have behaved after a football coach’s firing, it is somewhat incongruous to trumpet a win for the rights of students.  But in the end, students need to be trusted to do the right thing, and to learn by doing, and to recognize parody on the Daily Show, in The Onion, or in their school newspaper.

$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.

BMI sues bar in Shakopee, alleging copyright infringement

November 8, 2011

Music-licensing company BMI today filed its third copyright-infringement case this month, again alleging a Minnesota establishment has permitted popular music to be performed without paying for the right to do so.

The bar in question is the Pullman Club in Shakopee.  The complaint and an exhibit filed in federal court in Minnesota allege the establishment did not pay for the right to perform Brown Eyed Girl by Van Morrison, Folsom Prison by Johnny Cash, Rocket Man by Elton John, and three songs attributed to Mick Jagger and Keith Richard:  Honky Tonk Women, Jumpin’ Jack Flash, and Paint It Black.  The alleged copyright infringement occurred Sept. 10, 2011.

As I posted previously, earlier this month BMI filed lawsuits alleging copyright infringement at establishments in Anoka and Jordan.

Revolutionary War printing plate ends up in Minnesota

November 7, 2011

For now at least, Minnesota courts are providing a forum for determining who owns some of the oldest media imaginable in these parts:  a Revolutionary War currency-printing plate dating to 1775.

According to a Minnesota Court of Appeals decision released this morning, a Minnesota man bought the plate at a 2009 estate sale in Minnesota and a year later contracted to sell it at a Massachusetts auction.  The morning of the auction, the state of New Hampshire claimed it owned the plate and successfully halted the sale.  After the Minnesota man started a Minnesota lawsuit in Fillmore County, New Hampshire asked the court to dismiss the case on the theory that a Minnesota court did not have “jurisdiction” over the State of New Hampshire.

The trial court denied New Hampshire’s motion to dismiss — a decision the court of appeals said this morning was an error but was subject to further “due process” review.

The law is dry, but the factual circumstances of the printing plate are fascinating.

According to a story New Hampshire television station WMUR aired in May, the printing plate is “about the size of a sheet of paper and was used during the war to print what amounted to war bonds,” and was commissioned by the New Hampshire Legislature in 1775.  A state archivist told the station that it’s unclear how the plate ended up in Minnesota, but that there’s evidence it was loaned to Baltimore doctor in the mid-1850s.

Mid-1850s?  Wow.  Minnesota wasn’t a state till 1858.