Citing protected speech, Minnesota Court of Appeals overturns telephone stalking conviction

Minnesota's law banning stalking-by-telephone is overly broad and unconstitutional, the state Court of Appeals ruled in the case of a Rice County man who left angry phone messages with government officials.

The three-judge panel cited a recent state Supreme Court ruling that found the state's cyberbullying ban to be overly broad. Like harassment by Twitter, the state's stalking-by-telephone law similarly impedes free speech and violates the First Amendment to the Constitution, the court ruled.

Under current law, the court said Monday, what many people consider routine complaints or calls would be considered illegal. Someone could be charged with stalking by telephone, for example, for repeatedly calling a business to complain or announcing a social media boycott of their products.

In the current case, Jason Elliot Peterson was convicted in Rice County District Court on two counts of stalking. He was sentenced to a year in jail, but that was stayed pending his appeal.

Prosecutors said that in 2016 and 2017, Peterson repeatedly left voice mails for several employees of the County Sheriff's Office and Social Services Department complaining about his 2002 family law case. The recipients of the calls were frightened, the court said, citing instances where Peterson said he was coming for them, used expletives or threatened to "arrest" officials.

"To be clear, we acknowledge that Peterson's behavior is upsetting and inappropriate, and that the state has an interest in prohibiting this type of conduct," the opinion read. "But the state may not do so by criminalizing a substantial amount of protected speech in an overly broad statute."

The appellate court listed three reasons for striking down the law.

The first is that the law criminalizes repeated calls and text messages regardless of their content, the court said in the decision written by Judge Diane Bratvold on behalf of Judges Louise Dovre Bjorkman and Lucinda Jesson.

Although stalking is illegal when directly linked to facilitating a crime, the Court of Appeals determined that the stalking-by-telephone statute goes too far because it prohibits behavior that requires no link to conduct linked to committing a crime.

Second, the court said the stalking-by-telephone statute requires criminal negligence that covers both intentional and unintentional speech.

Under that provision, a person can be convicted "even though the person does not intend or even know that his communication would frighten, threaten, oppress, persecute or intimidate the victim," the court noted. The negligence requirement in the stalking-by-telephone law covers a wide range of protected communications "that have unintended, albeit reasonably foreseeable consequences," the court said.

Finally, the court said the stalking-by-telephone law requires prosecutors to prove that the victim of the alleged stalking felt "frightened, threatened, oppressed, persecuted, or intimidated."

In a footnote, the court acknowledged that some of Peterson's statements may have been "true threats" that aren't protected by the Constitution because he intended to "communicate a serious expression of an intent to commit an act of unlawful violence to" an individual or groups.

But the court said the existing stalking-by-telephone law could criminalize speech in which a constituent scares a lawmaker by repeatedly calling and threatening to run against them if they don't pass gun legislation.

That's speech that is at the core of what the First Amendment aimed to protect, the court said.

Teresa Nelson, legal director of the state chapter of the American Civil Liberties Union, said that while Peterson isn't a "great poster child" for First Amendment cases, prosecutors could've chosen to charge him with making "true threats," without also "scooping up constitutionally protected speech."

"I think that the Legislature needs to go back to the drawing board and craft a more carefully written statute to address these issues," she said. "Any time you're going to put somebody in prison for things that they are saying, it has to be narrowly drawn."

Michael Friedman, executive director of the Legal Rights Center in Minneapolis, said that while he wasn't familiar with this particular case, "there are a lot of laws that are framed vaguely and give too much discretion on how they may be prosecuted."

"Any use of a stalking ordinance [against someone who] complains about the conduct of a government official, would seem on the surface to be inappropriate, because of the First Amendment," he said.

In the state Supreme Court ruling from June, the higher court struck down a cyberbullying law. That decision overturned a conviction for a juvenile, identified only with initials. The juvenile was convicted of cyberbullying for an "unrelenting torrent or cruel tweets."

Writing for the court, Justice Paul Thissen said the state's laws on mail harassment and stalking by mail are written so broadly that they impinge on free speech protected by the U.S. Constitution.

The state can ask the Supreme Court to hear the case, but the higher court is not required to take it up.

Staff writer Libor Jany contributed to this report. Rochelle Olson • 612-673-1747 Twitter: @rochelleolson