the states through the Fourteenth Amendment, provides that government shall “make no
law . . . abridging the freedom of speech.”1 U.S. Const. amend. I. “A statute is overbroad
on its face if it prohibits constitutionally protected activity, in addition to activity that
may be prohibited without offending constitutional rights.”
State v. Machholz, 574
N.W.2d 415, 419 (Minn. 1998). With respect to limitations on speech, a statute is
overbroad “if a substantial amount of protected speech is prohibited or chilled in the
process” of banning unprotected speech. Ashcroft v. Free Speech Coal., 535 U.S. 234,
255, 122 S. Ct. 1389, 1404 (2002). The overbreadth must be substantial in relation to a
statute’s plainly legitimate sweep. United States v. Williams, 553 U.S. 285, 293, 128 S.
Ct. 1830, 1838 (2008).
Applying the overbreadth doctrine to invalidate a statute,
however, is a “strong medicine” that should be “used sparingly and only as a last resort.”
N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S. Ct. 2225, 2234
(1988).
The first step in overbreadth analysis is to construe the challenged statute.
Williams, 553 U.S. at 293, 128 S. Ct. at 1838.
Minnesota’s criminal defamation statute
reads:
Subdivision 1. Definition. Defamatory matter is anything
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.
1
Appellant challenges section 609.765’s constitutionality under the United States
Constitution. At the district court, appellant challenged section 609.765 under both the
Minnesota and United States Constitutions. He has abandoned his Minnesota challenge
on appeal.
4
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