State v. Hensel, Minn.S.Ct., 9/13/2017. So far September has been David Stras month up at the Judicial Center. Elsewhere too, for that matter and a rather destructive one at that. Last week the Justice delivered a near-fatal blow to the "rule of lenity;" here, the Justice throws out a portion of the disorderly conduct statute, saying that it is facially unconstitutional under the First Amendment. In doing so the court reverses the court of appeals and draws a dissent from two of three dissenters from the previous week: Justice G. Barry Anderson and the Chief Justice.
At the first of two meetings of the Little Falls City Council Ms. Hensel, sitting in the front row, held up signs which displayed dead and deformed children. The signs, one of which was on her head, obstructed the view of those seated behind her. Eventually, even though those whose view was obstructed were invited to sit in some chairs that were normally not used during council meetings, the council adjourned prematurely. At the next meeting Ms. Hensel moved a chair into a sort of DMZ between the public seating area and the dais where the council sat. She refused multiple requests to return to the general seating area, during which she had words with the city attorney among others. When she persisted in not moving back to the general seating area an officer escorted her out of the room.
Whereupon the state charged Ms. Hensel under a section of the disorderly conduct statute that says:
Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
. . .
(2) disturbs an assembly or meeting, not unlawful in its character . . . .
Justice Stras concluded that this statute is "broad and unambiguous, prohibiting any conduct or speech that 'disturbs an assembly or meeting,' whether expressive or not." Raising one's voice would be enough to violate the statute (as in, say, a heated cross examination or an argument around the dinner table with an unruly child). After hauling out the dictionaries to define various words in the statute the Justice sums up:
Combining its component parts, the statute prohibits any activity, whether expressive or not, that “interferes with” or destroys the “tranquility” of any lawful “gathering of people” who share a common purpose or reason for gathering, so long as the individual knows, or has reason to know, that the activity will, or will tend to, disturb others. Minn. Stat. § 609.72, subd. 1(2). This statute presents us with a “criminal prohibition of alarming breadth.” Stevens, 559 U.S. at 474. It criminalizes a public speech that “criticize[s] various political and racial groups . . . as inimical to the nation’s welfare.” Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). It prohibits an individual from wearing a jacket containing an offensive inscription to a meeting. See Cohen v. California, 403 U.S. 15, 16 (1971). And certainly, it would forbid someone from burning the American flag on a public street. See Texas v. Johnson, 491 U.S. 397, 399 (1989).
The statute thus facially violates the First Amendment overbreadth doctrine. The Justice was unwilling to narrow the statute to survive this facial infirmity and so the court wipes it off the books. Justice B. Barry Anderson, joined by the Chief Justice, wrote in dissent that the statute could be saved by a narrowing construction that only punished conduct and not speech.