Under current Minnesota law, an adult who texts a child a naughty scene from Game of Thrones or a racy Beyoncé music video could face felony criminal charges.
But that statute, created to prevent predators from luring children into a sexual encounters online, was ruled unconstitutional by the state Court of Appeals Monday in an opinion that called it too broad with the potential to chill speech protected by the First Amendment.
The 18-page ruling has a huge impact on the law because it’s now permissible to engage in speech that might have the potential to sexually arouse someone, even a child, said University of Minnesota media ethics professor Jane Kirtley. But the statutory definitions are not limited to children, and could include communications related to or describing the sexual conduct of any person, including adults.
“The Legislature tries to criminalize conduct before it’s criminal,” said John Westrick, who represented the defendant in this case. “I understand their desire to protect the children, I really do. But prosecutors need to show intent to commit a crime. It doesn’t fly in this case.”
That case involved Krista Muccio, a 43-year-old Dakota County middle school lunch lady and a 15-year-old student. In November, 2014, the child’s father reported to law enforcement that he found inappropriate images on his son’s iPad. The photographs depicted female genitals and naked pictures of women.
The pictures were sent from Muccio’s Instagram account via direct message. A search warrant revealed that she and the student had sexual explicit conversations and exchanged sexually explicit photographs.
Muccio was charged with one count of felony communication with a minor describing sexual conduct and another count of possessing pornographic work involving a minor. In a pretrial motion, a Dakota County District Court judge dismissed the first count because it was unconstitutional.
The statute states that a person 18 years of age or older who uses the internet or electronic device to intentionally arouse the sexual desire of a child or any person is guilty of a felony. The statute, created in 2007, was intended to criminalize what is referred to as “grooming”— the process where sexual predators engage in explicit conversations with a child and expose them to pornographic material in an attempt to acclimate the child toward a sexual encounter. A child is defined as a person 15-years-old or younger. The “or any person” language was, in part, why the Appeals Court found the law troubling in that it risked banning protected speech that adults have the right to receive and to address to one another. Specifically, the required intent occurs if the adult wishes to “arouse the sexual desire of any person,” not just children, Kirtley said.
In Muccio’s case, Westrick said the student asked her when they would meet, and she replied, “Maybe in four or five years from now.” This isn’t your typical type of grooming, he said.
“This ruling doesn’t affect if an adult solicits a minor on the internet or through texting to meet at a hotel for a sexual encounter,” he said.
Dakota County prosecutors appealed the district court’s rulings with four arguments. First, they stated that the speech involved in Muccio’s case wasn’t entitled to First Amendment protection because soliciting sexual activity from a child is illegal. But the court said “the government may not prohibit speech on the ground that it may encourage [sexual predators] to engage in illegal conduct.”
The county attorney also lost its arguments that Muccio engaged in obscene speech and child pornography, which aren’t protected by the Constitution.
Lastly, the county argued that the public could count on prosecutors’ decisionmaking to avoid “absurd applications” of the law. Although the court found prosecutors’ aim of protecting children laudable, the panel maintained that the statute goes well beyond that legitimate interest, and could be abused.
Westrick said he was surprised nobody had previously challenged the statute, which he believes was poorly written. A similar law in Texas was thrown out by its Court of Appeals.
“I believe the public is the winner with this ruling,” he said.
Dakota County Attorney James Backstrom said he believes the Minnesota Supreme Court should decide the constitutionality of these matters and plans to appeal the decision.
State Sen. Ron Latz, DFL-St. Louis Park, who chairs the Judiciary Committee, who hadn’t read the ruling, was surprised that Court of Appeals based much of their decision on First Amendment grounds. He expects Dakota County will file a petition for the Supreme Court to review the case.
“There is always a gray area with legislation that tries to address potential criminal risk compared to actual harm,” he said.