State Supreme Court to take up First Amendment issue in lunch lady sexting case

The Minnesota Supreme Court will take up a case looking at whether a state law banning adults from sexting with minors is unconstitutional.

In what became known across some internet forums as the "Lunch Lady sexting case," Dakota County prosecutors charged Krista Ann Muccio with two felonies in 2014 after she was accused of exchanging nude photos and lewd texts with a 15-year-old boy.

Muccio, 43, met the boy when he was in eighth grade while she worked at the Inver Grove Heights middle school and high school cafeteria, according to court records. The two began texting in June 2014. That November, the boy's father found nude photos sent by Muccio on his son's iPad. Police later found texts from Muccio writing that she wanted to have sex with the teen.

Muccio sought to dismiss the first count, communication with a minor describing sexual conduct, arguing that one of the laws Dakota County accused her of breaking instead violated the First Amendment's protection of freedom of speech.

Minnesota's law makes it illegal for anyone to engage "in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct."

Muccio's attorney argued that the law was so broad that it could capture constitutionally protected speech.

In November 2015, the judge in the case, Patrice Sutherland, agreed. After the county appealed, the Minnesota Court of Appeals upheld the decision in June, saying the law "suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."

States often run into First Amendment issues when writing legislation that is meant to curb online sex offenses, said Raleigh Hannah Levine, a professor with the Mitchell Hamline School of Law who specializes in free-speech issues.

"It's difficult to craft these laws in a way that doesn't cover speech that is constitutionally protected," she said.

Levine said another example is the state's revenge porn law, passed by the Legislature this year. Before it was passed, she testified that it was unconstitutional. As an example, Levine said, it would be illegal if someone forwarded a video to friends without realizing it was revenge porn.

In its argument to the Appeals Court, Dakota County and the state attorney general's office argued that the law was not overbroad, because its intent is to stop sexual predators from grooming children. The Supreme Court in August agreed to hear the case, but it has not been scheduled.

Muccio still faces a charge of possession of pornographic work involving a minor. Her attorney, John Westrick, could not be reached for comment.