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State supreme court reversed free speech ruling

    At the first of two meetings of the Little Falls City Council, Robin Lyne Hensel sat in the public gallery, which was about 15 to 20 feet from a raised dais located at the front of the room and reserved for city council members. Tables and chairs were positioned in the area between the gallery and the dais. 

    During the meeting, Hensel, who was sitting in the front row of the gallery, displayed signs that depicted dead and deformed children. These signs, which were approximately four feet long and four feet high, along with a sign on her head, obstructed the view of those seated behind her, causing the city council president to grant permission to affected members of the gallery to come forward and sit in the chairs available at the front of the room. Hensel’s actions eventually led the city council to adjourn and reschedule the meeting.

    Four days later, the city council reconvened in the same room, but this time there were no tables or chairs in the area between the gallery and the dais. Rather than sitting in the gallery, as she had at the previous meeting, Hensel took one of the folding chairs from the gallery and placed it in the space previously occupied by the tables and chairs. 

    Hensel refused multiple requests to return to the gallery and challenged the city council by demanding to see a policy that prohibited her from sitting there. Eventually, the Little Falls City Attorney warned Hensel that a police officer would remove her from the meeting room and issue her a ticket for disorderly conduct if she did not return to the gallery. When Hensel again refused a request to move, an officer escorted her from the room.

Based on these events, the State charged Hensel with disorderly conduct under Minn. Statute § 609.72, subd. 1(2). Before trial, Hensel moved to dismiss the charge, arguing, among other grounds, that the statute violated the First Amendment because it was unconstitutionally overbroad, unconstitutionally vague, and unconstitutional as applied to her case. The district court, in denying Hensel’s motion, rejected her vagueness challenge, reasoning that the statutory language was clear and understandable. Hensel’s overbreadth  challenge, by contrast, presented a closer call. Even though the court concluded that statute, was overbroad, it upheld the statute by narrowly construing it to require proof that “the disturbance in this case was caused by defendant’s conduct itself and not the content of the activity’s expression.” 

    Because Hensel’s conduct fell within the contours of the revised statute, the court held that probable cause for the charges existed and that the as-applied challenge to the statute failed.

    At trial, Hensel indirectly renewed her challenge to the constitutionality of the disturbance-of-an-assembly-or-meeting statute, by requesting a jury instruction requiring the jury to find that her conduct, if expressive, constituted “fighting words.” Hensel also sought another jury instruction requiring the jury to find that her disturbing conduct was completely separate from any protected expression.

    The district court denied both requests and convicted her of disorderly conduct after the jury returned a guilty verdict.

    The court of appeals affirmed Hensel’s conviction, but disagreed with the district court’s analysis of Hensel’s overbreadth challenge. Specifically, the court of appeals held that the disturbance-of-an-assembly-or-meeting statute was a time, place, or manner restriction that was not subject to standard overbreadth analysis. 

    The Minnesota Supreme Court reversed the decision of the court of appeals and instructed the district court to vacate Hensel’s disorderly-conduct conviction

    Both the district court and the court of appeals concluded that the statute is constitutional. Because Minn. Stat. § 609.72, subd. 1(2), violates the First Amendment and there is no reasonable narrowing construction of the statute.

    609.72 DISORDERLY CONDUCT. Subdivision 1.Crime. Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

    (1) engages in brawling or fighting; or (2) disturbs an assembly or meeting, not unlawful in its character; or (3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

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