Criminal Coercion Statute Struck Down in Minnesota

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From yesterday’s decision in State v. Jorgenson, written by Judge Diane Bratvold and joined by Presiding Judge Lucinda Jesson and Judge Renee Worke; for more on past cases in other states that had reached a similar result, see this post:

The state’s complaint alleged the following facts: [John Joseph] Jorgenson and J.C. were in a romantic relationship and lived together on J.C.’s property. J.C. ended the relationship in the fall of 2016 and was “in the process” of evicting Jorgenson at the time Jorgenson made phone calls to J.C.’s father. J.C.’s father contacted law enforcement and complained that Jorgenson called him multiple times, stating that he wanted $25,000 to not release a video of J.C. “talking about smoking marijuana.” Jorgenson allegedly threatened to release the video to the Minnesota Department of Human Services and J.C.’s employer.

The state charged Jorgenson with one count of attempted coercion under Minn. Stat. § 609.275 (2016), with reference to Minn. Stat. § 609.27, subd. 1(4). Specifically, the complaint alleged that Jorgenson had unlawfully made “a threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule, but failed to cause the intend[ed] act or forbearance.” … Minn. Stat. § 609.27, subd. 1, prohibits coercive threats, which it defines in six clauses, the fourth of which is relevant to this appeal.

“Whoever orally or in writing makes any of the following threats and thereby causes another against the other’s will to do any act or forbear doing a lawful act is guilty of coercion ….

“(4) a threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule.” …

The state is correct that subdivision 1(4) prohibits threats to extort because a threat to expose a secret or deformity and thereby cause “another against the other’s will to do any act” may include a demand for money or property in exchange for keeping a secret. Extortion is unprotected speech because it is “speech integral to criminal conduct”—using threats unlawfully to take someone’s property. Subdivision 1(4) also criminalizes a threat to defame, which is unprotected speech.

But subdivision 1(4) is not limited to threats to extort or defame because it does not criminalize only a demand for money or property, nor does it require that the threatened disclosure be false information. Instead, subdivision 1(4) broadly criminalizes any threat to expose a secret or deformity “that causes another against the other’s will to do any act or forbear doing a lawful act.” Subdivision 1(4) thus criminalizes threats that do not extort money or property and threats to reveal information that is not defamatory so long as the threat demands a lawful or unlawful act or the forbearance of a lawful act.

With the expansive and unambiguous language of subdivision 1(4) in mind, we agree with the district court that some constitutionally protected private and public speech is criminalized by subdivision 1(4). The breadth of the threats proscribed by subdivision 1(4) is troubling because, for example, it would prohibit a former classmate or coworker from privately threatening to disclose to the media an elected official’s embarrassing past if the official does not resign from public office. Subdivision 1(4) would also criminalize a prosecutor’s attempt to induce a defendant to plead guilty in exchange for not filing charges on an unrelated incident. In these examples, the former classmate, former coworker, and the prosecutor would be threatening to expose a secret or otherwise “expose [a] person to disgrace or ridicule” in order to “cause[ ] another against the other’s will to do any act or forbear doing a lawful act.” …

In light of the broad language of the statute and persuasive caselaw from other jurisdictions, we conclude that Minn. Stat. § 609.27, subd. 1(4), prohibits “a substantial amount of constitutionally protected speech.” … Subdivision 1(4) prohibits a significant amount of protected speech, such as expressions asserting legitimate claims of right, e.g., a consumer threatening to write a bad review for a defective product unless she receives a remedy, and expressions attempting to correct a wrong in private, e.g., an employee privately communicating that she will publicly expose her employer’s tolerance of sexual harassment unless the employer changes its policy.

{Although we do not endorse any particular statutory scheme, we acknowledge … that the Model Penal Code narrows the crime of coercion by incorporating an affirmative defense. The Model Penal Code’s “criminal coercion” section provides an affirmative defense when an actor seeks to compel others “to behave in a way reasonably related to the circumstances which were the subject of the accusation,” such as “making good a wrong done” or “refraining from taking any action or responsibility for which the actor believes the other is disqualified.” Many states with criminal coercion statutes have adopted the Model Penal Code’s approach, or something similar to it, in drafting their statutes.}

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