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The ubiquity of social media has thrust the subject of free speech into the spotlight of late.  Politicians, civil libertarians and tech giants struggle to balance the First Amendment’s speech protections against risks to our democracy and public safety by posed by malign actors, be they hate groups or agents of foreign governments seeking to interfere with our elections.  Given the ease of tweeting to billions with a simple mouse click, it is important for all of us to know the rules of the road.  I have written elsewhere about the laws of defamation generally. This article will highlight Minnesota’s little know criminal defamation law.

Minnesota is one of 24 states in which defamation is a crime, punishable (in Minnesota’s case) by a fine of up to $3,000 and/or imprisonment for up to one year. Minn. Stat. § 609.765. The statute is breathtakingly broad, applying to any language “which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.” This formulation contemplates two categories of harm: personal and business. The former might include accusations of, say, pedophilia (“Pat is a child molester”). The latter might include statements denigrating a product (“MacDonalds puts worms in its hamburgers”).

The paucity of reported cases in Minnesota suggests that prosecutors are either unaware of this fairly obscure law or are reluctant to press charges, in general, owing to the obvious constitutional issues implicated in criminalizing speech. (And perhaps the fact that civil remedies exist to confront defamation, ignoring the expense of suing and difficulty of proving financial harm, let alone collecting on a judgment for damages). In fact, the highest profile case applying the statute invalidated the law on that very basis. The case State v. Turner, 864 N.W.2d 204 (Minn. App. 2015) involved a former boyfriend who posted sexually explicit Craigslist ads on behalf of his former girlfriend and her minor daughter, listing their cellphone numbers. While describing the statements as “reprehensible and defamatory,” the Court had no choice but to overturn the law under the First Amendment because it contained no exception for truthful statements (truth being a defense to defamation) and, as to statements of public concern, included no requirement to show of “malice” on the part of the speaker.

In response, the Minnesota Legislature amended the criminal defamation statute the very next year. Its 2016 changes defined the crime as communication of statements that are false as well as defamatory. As modified, Minnesota’s law incorporates the well established defenses of truth, consent and, as applied to public figures on matters of public concern, absence of malice.  To date, there have been no reported cases applying the law, as amended.  This may change.  The internet has increased exponentially the risk of harm posed by false and defamatory speech. Given this reality, and the trend of ever more vile statements flashing across our screens, one might venture to predict that prosecutors will take a second look at Minnesota’s criminal defamation law.  Or first look, as the case may be.  The takeaway is that we all should mind our P’s and Q’s while communicating online.  Mindful that defamation may be a crime.