Subd. 2. Acts constituting. Whoever with knowledge of its
defamatory character orally, in writing or by any other means,
communicates any defamatory matter to a third person
without the consent of the person defamed is guilty of
criminal defamation and may be sentenced to imprisonment
for not more than one year or to payment of a fine of not
more than $3,000, or both.
Subd. 3. Justification. Violation of subdivision 2 is justified
if:
(1) the defamatory matter is true and is communicated
with good motives and for justifiable ends; or
(2) the communication is absolutely privileged; or
(3) the communication consists of fair comment made
in good faith with respect to persons participating in
matters of public concern; or
(4) the communication consists of a fair and true report
or a fair summary of any judicial, legislative or other
public or official proceedings; or
(5) the communication is between persons each having
an interest or duty with respect to the subject matter of
the communication and is made with intent to further
such interest or duty.
Subd. 4.Testimony required. No person shall be convicted on
the basis of an oral communication of defamatory matter
except upon the testimony of at least two other persons that
they heard and understood the oral statement as defamatory or
upon a plea of guilty.
Minn. Stat. § 609.765. During oral arguments, the state conceded that section 609.765 is
overbroad but maintained that we can uphold the statute through use of a narrowing
construction. We agree that section 609.765 is overbroad, but further analysis of the
statute’s overbreadth is necessary for determining the statute’s susceptibility to a
narrowing construction.
Minnesota’s criminal defamation statute dates back to the 1890s. See Minn. Gen.
Stat. ch. 86 §§ 6165-75 (1891). It was codified in its current form in 1963. 1963 Minn.
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