United States or of this state.”). We are equally mindful that a limiting construction
should be imposed only if an unconstitutional statute is “readily susceptible to such a
construction.” United States v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 1591-92
(2010). The state’s proffered limiting construction would require us to do more than
construe section 609.765 narrowly, it would require a rewrite of section 609.765. See id.
at 481, 130 S. Ct. at 1591 (cautioning the judiciary against rewriting a statute as opposed
to merely reinterpreting it when contemplating a limiting instruction). In addition to
removing language from subdivision 3(1), a narrowing construction of section 609.765
that passes constitutional muster would also require us to add language to subdivision
3(3).2 As section 609.765, subdivision 3(3), currently reads, it does not exempt all true
statements on matters of public concern. Rather, a true statement is only exempt if it is
fair and made in good faith. This is in direct conflict with United States Supreme Court
precedent. Garrison, 379 U.S. at 71-73, 85 S. Ct. at 214-15.
Lastly, section 609.765 does not require a showing of “actual malice” before it
imposes liability for false statements on matters of public concern. In Crawley, the
supreme court noted that the mental state required for conviction under Minn. Stat.
§ 609.505, subd. 2, “exceed[ed] the actual malice standard for defamation of a public
official established by the Supreme Court.” 819 N.W.2d at 108. Thus, in narrowly
construing the challenged statute in Crawley, the Minnesota Supreme Court did not have
2
The state’s briefing did not provide us with a narrowing construction that addresses the
“actual malice” standard. When asked at oral arguments how this court could construe
section 609.765 to preserve its constitutionality, the state suggested only that we interpret
the statute to include truth as an absolute defense or, in the alternative, only apply the
statute to false statements.
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