to read a mental state into the statute. Here, we would either have to write in the actual malice standard or construe the statute to include this mental state. Removing language, as argued by the state, and adding language, as required by law, would require a rewrite of the statute and “would constitute a serious invasion of the legislative domain.” Stevens, 559 U.S. at 481, 130 S. Ct. at 1592. We conclude that the state has not met the burden of proving the constitutionality of Minnesota’s criminal defamation statute nor provided a functional narrowing construction. And although appellant’s conduct was reprehensible and defamatory, we cannot uphold his conviction under an unconstitutional statute. DECISION Minnesota Statutes section 609.765 criminalizes true statements and statements made without “actual malice.” Because the statute penalizes protected, as well as unprotected speech, it is unconstitutionally overbroad and in violation of First Amendment protections and is not susceptible to a narrowing construction. Accordingly, we reverse appellant’s conviction under section 609.765. Reversed. 13