5.
The remedy for the First Amendment violation is to invalidate Minn.
Stat. § 617.261.
Having determined that Minn. Stat. § 617.261 is overbroad in violation of the First
Amendment, we consider whether applying a narrowing construction or severing
problematic language from the statute would remedy the constitutional defect. A.J.B., 929
N.W.2d at 848.
When a court determines that a statute is unconstitutional, it must invalidate as much
of the statute as is necessary to eliminate the unconstitutionality. Archer Daniels Midland
Co. v. State, 315 N.W.2d 597, 600 (Minn. 1982). We look to the intent of the legislature
to fashion a remedy consistent with that intent. Id. “[W]e are not to sever a statute if the
remaining valid provisions, standing alone, are incomplete and are incapable of being
executed in accordance with the legislative intent.” A.J.B., 929 N.W.2d at 848 (quotation
omitted). Although we can strike a severable statutory provision if it is unconstitutional
and void, “we cannot add language to a statute in order to render it constitutionally
permissible.” Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 836 (Minn. 2002)
(quotation omitted).
The state argues that Minn. Stat. § 617.261 is subject to a limiting construction that
can remedy its constitutional defect. For example, the state suggests that we construe the
statute to refer only to obscenity. But limiting the statute’s application to obscenity is
inconsistent with the plain language of the statute, which defines the images subject to
regulation much more broadly than the recognized definition of obscenity, indicating that
the legislature did not intend such a limitation.
26
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