Id. (citations and quotations omitted). If the statute is not limited to unprotected categories
of speech or expressive conduct,
we turn to the core overbreadth inquiry: Does the statute
prohibit a substantial amount of constitutionally protected
speech? This inquiry looks to the conduct that is criminalized
by the statute—some of which is unprotected speech or
conduct and some of which is speech and expressive conduct
protected by the First Amendment—and asks whether the
protected speech and expressive conduct make up a substantial
proportion of the behavior the statute prohibits compared with
conduct and speech that are unprotected and may be
legitimately criminalized. A statute is not substantially
overbroad merely because one can conceive of some
impermissible applications.
Id. at 847-48 (citations and quotations omitted).
If the statute prohibits a substantial amount of protected expressive conduct, we
consider whether applying a narrowing construction or severing problematic language
from the statute would remedy the constitutional defect. Id. at 848. If the statute is
substantially overbroad and cannot be saved by a narrowing construction or severance, “the
remaining option is to invalidate the statute.” Id. (quotation omitted). “Because the
overbreadth doctrine has the potential to void an entire statute, it should be applied only as
a last resort and only if the degree of overbreadth is substantial and the statute is not subject
to a limiting construction.” Dunham, 708 N.W.2d at 565 (quotation omitted).
With these principles in mind, we turn to the language of Minn. Stat. § 617.261.
1.
Minn. Stat. § 617.261 has a broad sweep.
Minn. Stat. § 617.261 provides:
7
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