281 Care Committee et al v. Arneson et al

Filing 131

MEMORANDUM OPINION AND ORDER granting 98 Defendants Ross Arneson's and Michael Freeman's Motion for Summary Judgment; denying 106 Defendant Lori Swanson's Motion for Summary Judgment; denying 111 Plaintiffs' Motion for Summary Judgment. All claims in the First Amended Complaint 23 are DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Ann D. Montgomery on 01/25/2013. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

281 CARE Committee, Ron Stoffel,
Citizens for Quality Education,
and Joel Brude,

MEMORANDUM OPINION
AND ORDER
Civil No. 08-5215 ADM/FLN

Plaintiffs,
v.
Ross Arneson, in his official capacity as
County Attorney for Blue Earth County,
Minnesota, or his successor,
Michael Freeman, in his official capacity as
County Attorney for Hennepin County,
Minnesota, or his successor, and
Lori Swanson, in her official capacity as the
Minnesota Attorney general, or her successor,

Defendants.
______________________________________________________________________________
William F. Mohrman, Esq., and Erick G. Kaardal, Esq., Mohrman & Kaardal, P.A., Minneapolis,
MN, on behalf of Plaintiffs.
Daniel P. Rogan, Esq., and Beth A. Stack, Esq., Hennepin County Attorney’s Office,
Minneapolis, MN, on behalf of Defendants Ross Arneson and Michael O. Freeman.
John S. Garry, Esq., Minnesota Attorney General’s Office, St. Paul, MN, on behalf of Defendant
Lori Swanson.
______________________________________________________________________________
I. INTRODUCTION
On November 8, 2012, the undersigned United States District Judge heard oral argument
on Plaintiffs’ Motion for Summary Judgment [Docket No. 111]; Defendants Ross Arneson’s and
Michael Freeman’s (the “County Attorneys”) Motion for Summary Judgment [Docket No. 98];
and Defendant Attorney General Lori Swanson’s Motion for Summary Judgment [Docket No.
106]. Plaintiffs challenge the constitutionality of Minn. Stat. § 211B.06, a statute prohibiting the

dissemination of certain false political statements. Defendants argue the statute is constitutional,
and the Attorney General separately argues she is entitled to Eleventh Amendment immunity
from Plaintiffs’ suit. For the reasons stated herein, the County Attorneys’ motion is granted;
Plaintiffs’ motion is denied; and the Attorney General’s motion is denied as moot.
II. BACKGROUND
Plaintiffs are Minnesota residents and organizations who campaign against ballot
initiatives that seek to increase funding for local school districts through the use of bond
increases and tax levies. Plaintiff Ron Stoffel is the treasurer of Plaintiff 281 CARE Committee
(“281 Care”), while Plaintiff Joel Brude is the Chair of Citizens for Quality Education. First
Decl. of Erick G. Kaardal [Docket No. 44] at Exs. 1, 3. Plaintiff Victor Niska, former Chairman
of Plaintiff W.I.S.E. Citizen Committee (“W.I.S.E.”), died after the filing of the motions at issue,
and has been dismissed from the lawsuit. Stip. of Dismissal [Docket No. 124].
Plaintiffs challenge the constitutionality of Minn. Stat. § 211B.06, a provision of the
Minnesota Fair Campaign Practices Act (FCPA). The statute states in relevant part:
A person is guilty of a gross misdemeanor who intentionally participates in the
preparation, dissemination, or broadcast of paid political advertising or campaign
material with respect to the personal or political character or acts of a candidate, or with
respect to the effect of a ballot question, that is designed or tends to elect, injure,
promote, or defeat a candidate for nomination or election to a public office or to promote
or defeat a ballot question, that is false, and that the person knows is false or
communicates to others with reckless disregard of whether it is false.
Minn. Stat. § 211B.06, subd. 1 (2012). Minnesota has regulated knowingly false speech about
political candidates since 1893. See Minn. Stat. ch. 1, § 199 (1894) (amended 1901). However,
Minnesota did not begin regulating knowingly false speech about ballot initiatives until 1988.
Minn. Stat. § 211B.06 (1988) (amended 1998). From 1988 until 2004, the FCPA’s only

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enforcement mechanism was the prosecution of alleged violators by the relevant county attorney.
Id. In 2004, the state legislature amended the FCPA to allow private persons to file a civil
complaint before the Office of Administrative Hearings (OAH). Id.; see Minn. Stat. § 211B.32.
The amended FCPA allows a county attorney to bring criminal charges only after the civil
complaint reaches a final disposition. Minn. Stat. § 211B.32, subd. 1.
Plaintiffs have a history of involvement with § 211B.06. In 2006, the B.U.I.L.D. Citizen
Committee (“B.U.I.L.D.”) filed a civil complaint with the OAH against the late Mr. Niska and
his organization, W.I.S.E. Third Decl. of Erick Kaardal [Docket No. 46] Ex. U. B.U.I.L.D.
supported a school bond referendum to raise money for a new school building in the Howard
Lake, Waverly-Winsted School District. Id. In its complaint, B.U.I.L.D. alleged Mr. Niska
disseminated campaign materials containing false statements about the impact of the school bond
referendum. Id. The OAH found that B.U.I.L.D. had stated a prima facie case against Mr. Niska
and W.I.S.E. but ultimately dismissed the complaint. See id. The OAH concluded that of the
three statements at issue, two were not verifiably false and one did not fall under § 211B.06
because it was not a statement about the “effect” of a ballot initiative. See id.
In late 2007, Stoffel and 281 Care campaigned against a Robbinsdale School District
ballot initiative. Ron Stoffel Decl., Apr. 14, 2009 [Docket No. 47]. After the initiative was
defeated, 281 Care filed a “pre-emptive” suit against the district, alleging the infringement of
free speech rights. Id. at Ex. 1. On November 8, 2007, the Superintendent for the district
responded that the district was “weighing its options” for dealing with 281 Care’s alleged use of
false statements, including considering whether to pursue a case against Stoffel’s organization.
Id. at Ex. 3. Neither the school district nor any other person filed an action against Stoffel, and

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Stoffel voluntarily dismissed his claims without prejudice. 281 Care Committee v. Krause, No.
07-4560 JMR/FLN (D. Minn. July 8, 2008).
On September 19, 2008, Plaintiffs filed this action against several County Attorneys.1
Plaintiffs allege that they have and will continue to engage in advocacy and campaigning
involving statements that “will be interpreted” as false or misleading. See, e.g., Am. Compl.
[Docket No. 23] ¶ 38. Section 211B.06, Plaintiffs allege, chills their ability to engage in
vigorous political debate. Plaintiffs thus seek a declaratory judgment ruling Minn. Stat. §
211B.06 unconstitutional, as well as permanent injunctive relief preventing Defendants from
enforcing the statute.
In mid-2009, Defendants filed a motion to dismiss and Plaintiffs filed a motion for
summary judgment. Order, Feb. 19, 2010 [Docket No. 70]. On February 19, 2010, Judge
Rosenbaum, now retired, granted the former and denied the latter. Judge Rosenbaum held that
Plaintiffs lacked standing to bring suit, that the issue was not ripe for decision, and that Plaintiffs
had failed to state a claim upon which relief could be granted. See id.
Plaintiffs appealed, and on November 17, 2010, the Eighth Circuit reversed the order
granting dismissal. The Eighth Circuit held that Plaintiffs had sufficiently established standing
and ripeness, and that Minn. Stat. § 211B.06 should be subject to strict scrutiny analysis. See
281 Care, 638 F.3d at 626-31, 633-36. The court also held that the Attorney General was not
protected by Eleventh Amendment immunity. Id. at 631-33. The Eighth Circuit remanded the
case for further proceedings. In the meantime, Judge Rosenbaum retired and this action was

1

Because the parties agreed to dismiss Plaintiffs Niska and W.I.S.E., the relevant
County Attorneys in this action, Michael Junge and Thomas N. Kelly, were also dismissed. Stip.
of Dismissal [Docket No. 124].
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reassigned to the undersigned Judge [Docket No. 84]. Upon remand, the parties brought the
present motions for summary judgment.
III. DISCUSSION
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall
be rendered if there exists no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. On a motion for summary judgment, the court views the
evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465,
470 (8th Cir. 1995). However, the nonmoving party may not “rest on mere allegations or
denials, but must demonstrate on the record the existence of specific facts which create a genuine
issue for trial.” Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
If evidence sufficient to permit a reasonable jury to return a verdict in favor of the
nonmoving party has been presented, summary judgment is inappropriate. Id. However, “the
mere existence of some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under
prevailing law.’” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation
omitted). However, “summary judgment need not be denied merely to satisfy a litigant’s
speculative hope of finding some evidence that might tend to support a complaint.” Krenik, 47
F.3d at 959.
B. Scope of Decision
With this decision, the Court addresses only those provisions of Minn. Stat. § 211B.06
regarding ballot initiatives. The parties do not offer any argument regarding the constitutionality

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of the provisions governing statements about candidates, nor do they address the
constitutionality of the statutory provision regarding letters to the editor. The County Attorneys
also argue that severing the ballot-related language from the statute would be an appropriate
remedy if the Court were to find the language unconstitutional, and Plaintiffs do not object to
this suggestion. Plaintiffs’ willingness to accept severance as a remedy indicates they do not
challenge the remainder of the statute.
In addition, the Eighth Circuit noted the significant and long-standing distinction
between knowingly false speech about candidates and knowingly false speech about political
issues. See 281 Care, 638 F.3d at 625. The distinction between these two veins of speech
restriction is significant; as the parties agree, knowingly false speech about candidates implicates
defamation concerns while false speech about ballot initiatives does not. Given the parties’
arguments and the Eighth Circuit’s holding, the Court will not rule on the constitutionality of
Minn. Stat. § 211B.06 in its entirety. Thus, this decision addresses only those portions of the
statute the parties challenge: paid political advertising and campaign materials about ballot
initiatives.
C. Standing
In their summary judgment memoranda, the County Attorneys revisit the issue of
Plaintiffs’ standing to bring suit. The County Attorneys originally argued Plaintiffs had failed to
establish sufficient injury in fact because Plaintiffs did not allege an intent to make maliciously
false statements (i.e. knowingly false statements or statements made with reckless disregard for
the truth) about ballot initiatives. Defs.’ Mem. Supp. Mot. Dismiss [Docket No. 49] 6. Instead,
the County Attorneys argued, Plaintiffs only alleged an intent to use exaggerated rhetoric that

6

might be interpreted as false.
The Eighth Circuit rejected the County Attorneys’ argument. The appellate court held
that for a First Amendment challenge of a state statute, a plaintiff need only “establish that he
would like to engage in arguably protected speech, but that he is chilled from doing so by the
existence of the statute.” 281 Care, 638 F.3d at 627 (citation omitted). In evaluating First
Amendment standing, the relevant inquiry is whether the plaintiff’s decision to chill his or her
speech was “objectively reasonable,” meaning there is a “credible threat of prosecution.” Id.
(citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). In this case, the
Eighth Circuit held that Plaintiffs had standing to sue because the legislature had recently
enacted § 211B.06, which presented a credible threat of prosecution. 281 Care, 638 F.3d at 628.
Perhaps just as importantly, the court also held that Plaintiffs’ intent to engage in speech that
“could reasonably be interpreted as making false statements with reckless disregard for the truth”
justified an objectively reasonable fear of prosecution. Id. at 628. This fear amounted to
sufficient injury in fact to support constitutional standing.
In their present motion, the County Attorneys again challenge standing, this time for a
failure of proof. The County Attorneys argue that even if Plaintiffs sufficiently alleged standing
at the motion to dismiss stage, they have failed to prove standing sufficient to survive summary
judgment. Although Plaintiffs have submitted multiple affidavits and declarations over the
course of this litigation, the County Attorneys argue Plaintiffs have failed to offer “specific
facts” supporting Plaintiffs’ standing. Defs.’ Mem. Supp. Summ. J. [Docket No. 100] 15. For
example, the County Attorneys argue Plaintiffs have not identified a specific ballot initiative
they intend to oppose, nor have Plaintiffs provided examples of specific statements they intend

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to use. Id. at 15-16. For their part, Plaintiffs respond that the Eighth Circuit expressly found
Plaintiffs had standing to sue, and the County Attorneys are improperly re-opening an issue
decided by the court.
Plaintiffs have established standing to bring this action. First and foremost, the Eighth
Circuit specifically directed this Court to evaluate the parties’ arguments on their merits, and the
rationale for the ruling remains sound. The appellate court concluded that Plaintiffs had standing
because a credible threat of prosecution existed by virtue of the recent enactment of § 211B.06.
That basis for standing is just as applicable at the summary judgment stage as it was during the
motion to dismiss stage. In addition, the Eighth Circuit held that Plaintiffs’ fear of prosecution
under the statute was reasonable given their alleged intent and past experiences. Plaintiffs cite
several declarations testifying to their intent to use heated, arguably-misleading rhetoric, and the
chilling effect § 211B.06 has caused. See, e.g., Decl. of Erick Kaardal, Dec. 23, 2008 [Docket
No. 11] Exs. 1, 3, 4, 6; Decl. of Ron Stoffel, Apr. 14, 2009 [Docket No. 47]; Decl. of Joel Brude,
Oct. 18, 2012 [Docket No. 120]; and Decl. of Ron Stoffel, Oct. 18, 2012 [Docket No. 121].
Plaintiffs have also cited evidence of Mr. Niska’s past prosecution, and their awareness of the
similarity of their own conduct to Mr. Niska’s complained-of conduct. See, e.g., Kaardal Decl.,
Dec. 23, 2008 at Ex. 1, ¶¶ 16, 23. This evidence is sufficient to establish standing in the manner
stated by the Eighth Circuit.
For the same reasons, the additional discovery requested by the County Attorneys under
Rule 56(d) of the Federal Rules of Civil Procedure is unwarranted. As the appellate court held,
specific examples of proposed speech, or the identification of contested ballots, are unnecessary
to establish a reasonable fear of prosecution.

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D. Constitutionality of Ballot Language in Minn. Stat. § 211B.06
1. Level of Scrutiny
In the decision remanding this case, the Eighth Circuit directed this Court to apply strict
scrutiny analysis to § 211B.06. The appellate court held that knowingly false speech is not
categorically exempt from First Amendment protection in the same manner as “fighting words,
obscenity, child pornography, and defamation.” 281 Care, 638 F.3d at 633. In particular, the
Eighth Circuit reasoned that knowingly false speech is not automatically akin to fraud or
defamation; while knowingly false speech may be an element of fraud or defamation, false
speech by itself does not implicate “important private interests” such as an individual’s
reputation. Id. at 634. As a result, knowingly false speech does not fall outside of First
Amendment protection and any attempt to limit such speech is a content-based restriction. The
Eighth Circuit thus directed this Court to apply strict scrutiny—the default First Amendment test
for content-based restrictions—to analyze the constitutionality of Minn. Stat. § 211B.06.
After the Eighth Circuit’s decision in this action, however, the Supreme Court addressed
the level of scrutiny appropriate for knowingly false speech. In United States v. Alvarez, the
Supreme Court addressed the constitutional challenge of a man charged under the Stolen Valor
Act, 18 U.S.C. § 704, with falsely representing himself as a recipient of a decoration or medal
from Congress or the armed forces. United States v. Alvarez, 132 S. Ct. 2537 (2012). In a split
decision, a majority of the justices upheld the Ninth Circuit Court of Appeal’s ruling that the
Stolen Valor Act was unconstitutional. Id. at 2551. The majority also agreed that no categorical
exemption from First Amendment protection existed for false speech. See generally, id. at 254348. In conducting its First Amendment analysis, however, the Court disagreed regarding the

9

appropriate level of scrutiny. A four-justice plurality, led by Justice Kennedy, held that strict
scrutiny must apply to the Stolen Valor Act.2 See id. at 2548-51. Although the plurality
recognized the compelling interests behind the Stolen Valor Act, it held that the law was not
necessary to achieve these interests and that less restrictive alternatives existed. Id. at 2250-51.
As a result, the plurality found the act unconstitutional. See id. at 2549-51.
Justice Breyer, joined by Justice Kagan, wrote a concurring opinion in which he agreed
that the Stolen Valor Act was unconstitutional. Unlike the plurality, the concurring justices held
that intermediate scrutiny, not strict scrutiny, should apply to restrictions against knowingly false
speech. Id. at 2551-52. The concurrence held that false speech had less social value than other
types of speech, though it could still “serve useful human objectives.” Id. at 2553. As a result,
the justices supported a “proportionality” analysis in which suitably narrow restrictions of false
speech would survive constitutional challenges. See id. at 2554-56 (reviewing various examples
of restrictions against false speech, including perjury, fraud, and trademark infringement
statutes). With regard to the Stolen Valor Act, the concurrence, like the plurality, expressed
serious concern that the statute criminalized speech made in “family, social, or other private
contexts.” Id. at 2555. The concurrence held that Congress could have passed a more “finely

2

The Alvarez plurality used the term “exacting scrutiny” instead of “strict scrutiny” in
its analysis of the Stolen Valor Act. In the past, the Supreme Court has used these terms
interchangeably. See, e.g., Burson v. Freeman, 504 U.S. 191, 198, 211 (1992). But it has also
used the term “exacting scrutiny” to refer to a potentially less-demanding standard in the context
of disclosure laws. See Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 87476 (8th Cir. 2012) (analyzing Supreme Court’s use of “exacting scrutiny” in reviewing
disclosure laws). In Alvarez, it appears the plurality used the term “exacting scrutiny” to mean
the highest level of constitutional scrutiny, because it applied the necessary elements of a strict
scrutiny analysis. See Alvarez, 132 S. Ct. at 2548-51 (discussing the “most exacting scrutiny”
and considering the compelling interests behind the Stolen Valor Act, as well as whether the law
was narrowly tailored); see also Minn. Citizens, 692 F.3d at 876 (observing same).
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tailored” statute, perhaps by requiring a showing of harm or materiality. Id. at 2556. As a result,
the concurrence joined the plurality in striking down the Stolen Valor Act.
In their motion for summary judgment, the County Attorneys argue that Justice Breyer’s
concurrence is the controlling opinion in Alvarez. In support of this contention, the County
Attorneys cite Marks v. United States, which held that when “a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds . . . .” Marks v. United States, 430 U.S. 188, 193-94 (1977) (internal
quotation omitted). The County Attorneys reason that the application of intermediate scrutiny to
false speech, as held by the Alvarez concurrence, is the narrower basis for striking down the
Stolen Valor Act as unconstitutional. Plaintiffs respond that Alvarez does not affect the Eighth
Circuit’s mandate, as strict scrutiny and intermediate scrutiny are mutually-exclusive bases for
the Alvarez majority opinions. Plaintiffs also argue that this case is sufficiently distinguishable
from Alvarez, meaning the Eighth Circuit’s holding in this case is not “clearly wrong” and thus
overruled. Pls.’ Mem. Opp’n [Docket No. 122] 17 (citing Morris v. Am. Nat’l Can Corp., 988
F.2d 50, 52 (8th Cir. 1993)).3
Under the Marks rule, Justice Breyer’s concurrence is the controlling opinion of Alvarez.

3

Plaintiffs also argue that neither level of scrutiny should apply in this case because
restrictions on libel against the government, or its laws, are categorically unconstitutional. This
argument contradicts the Eighth Circuit’s decision in this case, as the appellate court explicitly
held that strict scrutiny should apply to Minn. Stat. § 211B.06. Also, Plaintiffs too readily
conflate libel against the government with false speech meant to mislead voters as to the effect of
a ballot initiative. Section 211B.06 restricts only certain types of false speech made with respect
to the “effect of a ballot question”; as discussed in Section III.D.2.c.i., below, it does not restrict
false statements about the State.
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In applying Marks, appellate courts have attempted to discern which holding would elicit the
support of the majority of justices. See, e.g., United States v. Johnson, 467 F.3d 56, 63-64 (1st
Cir. 2006). For example, the concurring justices in Alvarez would, in the future, invalidate as
unconstitutional fewer false speech statutes than the plurality, since the concurrence supports the
application of a less stringent level of scrutiny. However, the Alvarez plurality would always
agree with the concurring justices when the concurrence found a statute unconstitutional, as a
statute that does not satisfy intermediate scrutiny could never satisfy strict scrutiny. See
Alvarez, 132 S. Ct. at 2552 (Breyer, J., concurring) (expressly placing intermediate scrutiny on a
continuum between strict scrutiny and rational basis review). As a result, the Alvarez
concurrence is a “logical subset” of the plurality opinion and thus the narrower holding, as it
would find fewer statutes unconstitutional while always enjoying the support of the majority.
See Coe v. Melahn, 958 F.2d 223, 225 (8th Cir. 1992) (holding Justice O’Connor’s concurrence
in Hodgson v. Minnesota, 497 U.S. 417 (1990), was the narrowest ground for the majority
“because her approach would hold the fewest statutes unconstitutional”); see also King v.
Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (holding Marks rule only applies when one opinion
is the “logical subset,” or “common denominator,” of the other).
Plaintiffs’ argument that the facts of Alvarez are distinguishable from the facts in this
case—and thus justify ignoring the effect of Alvarez—is not persuasive. The Eighth Circuit
relied on the Ninth Circuit Court of Appeals’ underlying decision in Alvarez as part of its
analysis in this case, implicitly holding that the facts and ruling of that decision are relevant to
the facts and legal issues in this case. 281 Care, 638 F.3d at 634-36 (citing United States v.
Alvarez, 617 F.3d 1198 (9th Cir. 2010)). On review, both the plurality and the concurrence in

12

the Supreme Court’s Alvarez decision address the restriction of false speech in broad terms, and
the concurrence specifically contemplates the restriction of false political speech. Alvarez, 132
S. Ct. at 2556. Finally, the facts in this case are not so different from the facts in Alvarez that
they warrant the application of entirely separate constitutional principles. Both cases involve the
restriction of non-defamatory false speech and thus trigger many of the same considerations
discussed in the decisions cited above.
Having found intermediate scrutiny applies in this case, significant ambiguity remains in
Justice Breyer’s Alvarez concurrence, and no appellate court has yet offered any guidance
regarding its application. Cf. State v. Crawley, 819 N.W.2d 94, 119 (Minn. 2012) (Stras, J.,
dissenting) (noting that Justice Breyer’s concurrence is “arguably the binding rationale of
Alvarez” under Marks). In addition, the previous articulations of the intermediate scrutiny test
include different elements from those discussed in the Alvarez concurrence, and have
traditionally not applied to content-based restrictions of “pure” speech.4
It is not necessary for this Court to decide which version of intermediate scrutiny most
properly applies here, because Minn. Stat. § 211B.06 survives the strict scrutiny analysis.
Because the § 211B.06 satisfies the highest level of constitutional scrutiny, the statute would
also be found constitutional under any applicable intermediate scrutiny test.

4

See, e.g., SOB, Inc. v. Cnty. of Benton, 317 F.3d 856, 860 (8th Cir. 2003) (citing
United States v. O’Brien, 391 U.S. 367, 377 (1968)) (applying four-factor test sometimes applied
to zoning ordinances and limits on commercial speech). There is also the similar test for time,
place, and manner restrictions, which upholds a content-neutral statute if it is “narrowly tailored
to serve a significant government interest,” but leaves open “ample alternative channels of
communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)
(citations omitted).
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2. Strict Scrutiny
Under the strict scrutiny test, Defendants have the burden of showing that Minn. Stat. §
211B.06 is narrowly tailored to serve a compelling state interest. Eu v. S.F. Cnty. Democratic
Cent. Comm., 489 U.S. 214, 222 (1989).
As the Eighth Circuit has observed, the definition of “compelling interest” has proven
elusive. See Republican Party of Minn. v. White, 416 F.3d 738, 750 (8th Cir. 2005). In
evaluating whether a compelling interest exists, the Supreme Court has in some cases looked to
policy considerations, while in other instances the Court has pursued the “realization of
constitutional guarantees.” Id. (citing Stephen E. Gottlieb, Compelling Governmental Interests:
An Essential But Unanalyzed Term in Constitutional Adjudication, 68 B.U. L. Rev. 917, 932-37
(1988)). Once a compelling interest is identified, the application of strict scrutiny may still
require a certain amount of balancing: the compelling interest at issue must be “important
enough to justify the restriction it has placed on the speech in question in pursuit of that
interest.” Id.
Even if a compelling interest exists, the statute at issue must still be narrowly tailored to
pursue that interest. Whether a statute is narrowly tailored depends on how closely connected
the restriction is to protecting the State’s interest. As the Eighth Circuit has held, a statute is
narrowly tailored if it:
actually advances the state's interest (is necessary), does not sweep too broadly (is
not overinclusive), does not leave significant influences bearing on the interest
unregulated (is not underinclusive), and could be replaced by no other regulation
that could advance the interest as well with less infringement of speech (is the
least-restrictive alternative).
White, 416 F.3d at 751 (collecting cases). Each element of strict scrutiny analysis is addressed

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below.
a. Compelling Interest
The County Attorneys argue that Minn. Stat. § 211B.06 serves the compelling interest of
preserving “fair and honest” elections and preventing a “fraud upon the electorate” through the
deliberate spreading of material, false information. Plaintiffs respond that the State does not
have a legitimate interest in preventing voters from hearing false statements about ballot
initiatives, and that its attempt to do so is paternalistic. In addition, Plaintiffs argue Defendants
have presented no evidence that § 211B.06 is necessary to prevent false statements; in other
words, Plaintiffs argue that Defendants have presented no evidence that maliciously false
statements about ballot initiatives are a problem in need of a solution.
More than once, the Supreme Court has observed that knowingly false political speech
has the power to cause significant harm. “[F]alse statements, if credited, may have serious
adverse consequences for the public at large” if made during election campaigns. McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 349 (1995). There are also “those unscrupulous enough
and skillful enough to use the deliberate or reckless falsehood as an effective political tool to
unseat the public servant or even topple an administration.” Garrison v. State of La., 379 U.S.
64, 75 (1964). And in the Alvarez concurrence, Justice Breyer wrote that in political contexts,
violations of the Stolen Valor Act “are more likely to cause harm,” thereby also acknowledging
the potential for harm caused by lies in the political arena.5 See Alvarez, 132 S. Ct. at 2555.
The Supreme Court has also observed the tension between a functioning democracy and

5

Justice Breyer wrote that the risk of “censorious selectivity” by prosecutors is also
higher in the political realm. See Alvarez, 132 S. Ct. at 2555.
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maliciously false speech: “the use of the known lie as a tool is at once at odds with the premises
of democratic government and with the orderly manner in which economic, social, or political
change is to be effected.” Garrison, 379 U.S. at 75 (addressing defamation statute). It thus
follows that “the State has a legitimate interest in fostering an informed electorate,” though
pursuing this interest through restrictions of information should admittedly be viewed “with
some skepticism.” Eu, 489 U.S. at 228 (citations omitted).
Limiting the dissemination of knowingly or recklessly false statements about the effects
of ballot initiatives is a compelling state interest. A ballot initiative is a key political function by
which citizens directly shape public policy, and the process of persuading voters to vote for a
particular result is often dependent on the efforts of private citizens. A ballot initiative may alter
the way the state addresses a wide-ranging social or moral issue, but it may also affect a single
neighborhood’s public schools. In any scenario, it is a fundamental exercise of democratic
participation. For this reason, courts, including the Eighth Circuit, have held that speech about
ballot initiatives “is quintessential political speech . . . at the heart of the protections of the First
Amendment.” 281 Care, 638 F.3d at 635 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)).
But it is also for this reason that the State has a compelling interest in implementing minimal,
narrowly tailored safeguards against campaigns of misinformation. Deliberate or reckless efforts
to mislead the public and change the outcome of a ballot measure not only have an adverse
impact on the issue being decided, these efforts undermine the “premises of democratic
government,” including the necessity of free but fair debates.
b. Actually Necessary
As an initial matter, § 211B.06 is directly linked to the harm the government seeks to

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prevent, and is thus “necessary” to address the government’s compelling interest. See Alvarez,
132 S. Ct. at 2549 (holding that for a restriction to be “actually necessary,” there must exist “a
direct causal link between the restriction imposed and the injury to be prevented”). The Supreme
Court has previously stated in dicta that a statute restricting knowingly false political speech
about candidates and ballot measures is a direct means to counter the “fraud” of voter
manipulation. See McIntyre, 514 U.S. at 348-51. In McIntyre, the Court struck down as
unconstitutional Ohio’s prohibition against the anonymous distribution of campaign material.
See generally, id. In doing so, the Court instructed Ohio to instead rely on its “detailed and
specific prohibitions” against making maliciously false statements regarding candidates and
ballot measures. Id. at 351. Without addressing their constitutionality, the Court impliedly
referred to these restrictions against false statements as Ohio’s “principal weapon” against voter
deception. See id. The Court held that through such restrictions, “the State may, and does,
punish fraud directly.” See id. at 357.
McIntyre’s reasoning is persuasive because Ohio’s restriction against false statements
regarding ballot initiatives closely resembles the relevant portions of Minn. Stat. § 211B.06.
Consistent with Minn. Stat. § 211B.06, Ohio’s statute specifically restricts a person from
posting, publishing, circulating, or otherwise disseminating “a false statement, either knowing
the same to be false or acting with reckless disregard of whether it was false or not, that is
designed to promote the adoption or defeat of any ballot proposition or issue.” Ohio Rev. Code
Ann. 3517.22(B)(2) (2012).6 The Court in McIntyre concluded that this statute directly

6

At the time the Court issued its decision in McIntyre, Ohio’s restriction against false
speech regarding ballot initiatives was located at Ohio Rev. Code Ann. § 3599.092. The Ohio
legislature amended and relocated the statute in 1995, but did not alter the relevant provisions.
17

addresses the malicious misleading of the electorate, particularly in comparison to other, broader
prohibitions of speech.7 The Court’s holding is thus directly relevant in establishing the causal
link between Minn. Stat. § 211B.06 and the restriction against voter deception.
In addition, Plaintiffs’ argument that the County Attorneys have failed to offer proof that
false statements have altered the outcome of ballot initiatives is not persuasive. In some cases,
including Alvarez, the Supreme Court has indeed required empirical evidence demonstrating the
causal link between the statute at issue and the purported state interest. See, e.g., Alvarez, 132 S.
Ct. at 2549 (citing Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (regarding
proof of harm caused by violent video games)). But the “quantum of empirical evidence needed
to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the
novelty and plausibility of the justification raised.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S.
377, 391 (2000).
In yet other First Amendment cases, the Supreme Court has found “various unprovable
assumptions sufficient to support the constitutionality of state and federal laws.” Nat’l Ass’n of
Mfrs. v. Taylor, 582 F.3d 1, 15 (D.C. Cir. 2009) (citing Nat’l Cable & Telecomms. Ass’n v.
F.C.C., 555 F.3d 996, 1000 (D.C. Cir. 2009)). In Taylor, the appellate court reviewed the
constitutionality of a lobbyist disclosure statute and held that the issues were not “susceptible to

See 1995 Ohio Laws File 77 (S.B. 9).
7

Plaintiffs argue that McIntyre established that false speech about ballot initiatives could
not serve as a compelling state interest. See McIntyre, 514 U.S. at 351-52 (“[The statute] applies
not only to elections of public officers, but also to ballot issues that present neither a substantial
risk of libel nor any potential appearance of corrupt advantage.”). But the quoted language
pertains to the overbreadth of a prohibition against anonymous handbills, not against “arguably
false or misleading” documents. See id. at 351. In addition, McIntyre held that the prevention
of “false statements by unscrupulous prevaricators” was an “assuredly legitimate” interest. Id.
18

empirical evidence.” Id. at 16. Instead, the court deferred to the “value judgment based on the
common sense of the people’s representatives, and repeatedly endorsed by the Supreme Court as
sufficient to justify disclosure statutes.” Id. (citations omitted). Similarly, in Wersal v. Sexton,
the Eighth Circuit “easily” concluded that the preservation of the appearance of judicial
impartiality was a compelling interest without relying on empirical evidence. See Wersal v.
Sexton, 674 F.3d 1010, 1020-24 (8th Cir. 2012). Instead of requiring empirical evidence, the
court relied on relevant legal holdings and the Minnesota Supreme Court’s Code of Judicial
Conduct. See id.
Here, the County Attorneys have sufficiently demonstrated the necessity of and causal
link to their stated compelling interest. The effects of knowingly false statements, or statements
made with a reckless disregard for the truth, on the outcome of a ballot initiative do not lend
themselves easily to empirical evidence. Among other reasons making the collection of
evidence difficult, the State does not and should not engage in the business of polling its citizens
regarding what they voted for and why, and then publicly filing the results. See Campaign for
Family Farms v. Glickman, 200 F.3d 1180, 1187-88 (8th Cir. 2000) (discussing the importance
of the secret ballot to American system of voting) (citations omitted). Even so, both Plaintiffs
and the County Attorneys submitted declarations, affidavits, websites, news articles, and OAH
decisions into the record demonstrating that the use of false statements remains an issue of
public concern.8
As a national issue, the harm of voter deception by maliciously false speech is a current

8

See, e.g., William F. Mohrman Decl., Sept. 27, 2012 [Docket No. 114] Exs. 1, 2;
Michael O. Freeman Aff. [Docket No. 101]; Joseph Mansky Aff. [Docket No. 102]; Beth A.
Stack Aff., Sept. 27, 2012 [Docket No. 104] Exs. 3-7.
19

concern, and the restriction of such speech has longstanding precedents. In addition to the
Supreme Court’s holdings in McIntyre and Garrison, various state legislatures have adopted
statutes restricting false speech about campaign issues and ballot initiatives. See, e.g., Colo.
Rev. Stat. Ann. § 1-13-109 (2012); Mass. Gen. Laws ch. 56, § 42 (2012); Ohio Rev. Code Ann.
§ 3517.22; Utah Code Ann. § 20A-11-1103 (2012); and Wis. Stat. Ann. § 12.05 (2012). Other
states have restricted false political statements about candidates. See Rickert v. State, Pub.
Disclosure Comm’n, 168 P.3d 826, 867-68 (Wash. 2007) (Madsen, J., dissenting) (collecting
statutes). Courts in a few states, including Washington, have ruled similar but less narrowly
defined statutes unconstitutional. See, e.g., State v. 119 Vote No! Committee, 957 P.2d 691
(Wash. 1998) (holding unconstitutional a statute that broadly prohibited all false political
statements of material facts made in political advertisements); see also Rickert, 168 P.3d at 85556. Nevertheless, the restriction of knowingly false political speech has a long pedigree.
Finally, as previously noted, the Minnesota state legislature first adopted language
prohibiting false speech regarding ballot initiatives in 1988. The original statute, however,
employed a standard of intent lower than actual malice; it prohibited knowingly false speech but
also speech made by a person who had “reason to believe” the speech was false. Minn. Stat. §
211B.06 (1988); see also 1988 Minn. Laws Ch. 578, art. 3, § 6. In 1996, the Minnesota Court of
Appeals invalidated the statute as unconstitutional, holding the “reason to believe” standard was
overbroad. State v. Jude, 554 N.W.2d 750, 753-54 (Minn. Ct. App. 1996). The court held that
the actual malice standard, discussed in New York Times Co. v. Sullivan, stated the proper
standard. See id. (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). In the
legislative session immediately following Jude, the state legislature amended Minn. Stat. §

20

211B.06 by replacing the “reason to believe” standard with “reckless disregard” in accordance
with the court of appeals’ holding. See 1998 Minn. Laws Ch. 376, § 3. Given both the
longstanding legal principles at issue and the state legislature’s judgment, Minn. Stat. § 211B.06
satisfies the “actually necessary” requirement of constitutional analysis.
c. Narrowly Tailored
Because Minn. Stat. § 211B.06 contains significantly limiting language, and because it
applies the actual malice standard, the Court holds the statute is narrowly tailored.
i. Overinclusive/overbroad
A statute is unconstitutionally overinclusive, or overbroad, if it “sweep[s] too broadly” in
restricting speech. Wersal, 674 F.3d at 1024-26. In addition to unnecessarily restricting speech
by its terms, a statute may be overbroad if it “chills” a speaker from engaging in otherwise
protected speech. See Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977). In this case,
Plaintiffs argue Minn. Stat. § 211B.06 chills protected speech, including statements that could
reasonably be interpreted as false by a reader. Plaintiffs also argue the statute is overbroad
because it impermissibly prohibits the expression of opinion.
Minn. Stat. § 211B.06 is narrowly tailored. The statute includes several narrowing
provisions, including language limiting it to the dissemination of “paid political advertising or
campaign material.” This limitation specifically allows “breathing space” for oral statements
made in debates, on television, or on the street corner soapbox that might be made spontaneously
or in the heat of the moment. A person passionately arguing for or against a ballot initiative thus
need never curb their unscripted oral statements to avoid violating § 211B.06. Instead, the
restrictions only apply against those forms of expression that require deliberation and which also

21

tend to have a greater permanence than unscripted oral statements. While the provisions at issue
do not directly implicate defamation concerns, the difference between libel and slander is
instructive in discerning this narrow tailoring. See Restatement (Second) of Torts § 568 (1977)
(distinguishing between libel and slander in part based on the “degree of permanence and the
deliberation and premeditation of the defamer”). By targeting only more premeditated and
“persistent” forms of political speech, § 211B.06 both tailors and successfully balances the
restriction of knowingly or recklessly false speech against the protections of the First
Amendment. See White, 416 F.3d at 750.
The statute also preserves a speaker’s ability to criticize the government, as it only
applies to certain speech made “with respect to the effect of a ballot question.” Minn. Stat. §
211B.06, subd. 1. Plaintiffs correctly argue that the Supreme Court has emphatically held
against allowing the government, as an entity, to bring defamation claims. See 281 Care, 638
F.3d at 634 (citing New York Times, 376 U.S. at 291)). But the statute at issue does nothing to
restrict a person from disparaging the government using false statements. For example, the
statute would not apply to a flyer including the statement, “The School District has wasted $10
billion dollars of taxpayer money!” Instead, the statute targets only those statements specifically
intended to mislead voters regarding the effect of a ballot initiative; whether a statement
disparages the government is wholly immaterial.
In addition, although the actual malice standard in § 211B.06 does not categorically
exempt knowingly false political statements, the standard does narrow the statute’s application.
Both the Eighth Circuit and the Supreme Court in Alvarez declined to hold that Garrison and
other cases addressing defamation establish that all knowingly false statements fell outside of

22

constitutional protection. See 281 Care, 638 F.3d at 634 (citing Garrison, 379 U.S. at 75); see
also Alvarez, 132 S. Ct. at 2546. The Eighth Circuit also held that neither Brown v. Hartlage,
456 U.S. 45 (1982), nor McIntyre directly applied the actual malice standard to “false speech in
the context of political campaigns on a ballot issue.” See 281 Care, 638 F.3d at 636.
This Court holds that while knowingly false political statements do not categorically fall
outside of the First Amendment, the actual malice standard nevertheless narrowly tailors Minn.
Stat. § 211B.06 sufficiently to satisfy strict scrutiny. In Garrison, the Court reviewed a charge of
criminal defamation against a district attorney for certain statements regarding the judges in his
district. Garrison, 379 U.S. at 64-67. Because the case concerned public officials, the Court did
not base its analysis on the private or reputational interests typically at issue in a defamation suit.
See 281 Care, 638 F.3d at 634. Instead, Garrison focused on the protection of vibrant political
discourse, noting that the “erroneous statement is inevitable in free debate, and it must be
protected if the freedoms of expression are to have the ‘breathing space’ they need to survive.”
Garrison, 379 U.S. at 75 (quotation omitted). The Court held that application of the New York
Times actual malice standard sufficiently allowed such “breathing space” because honestly held
opinions, no matter how exaggerated or unpleasant, would remain protected by the Constitution,
while calculated attempts to mislead voters would not. See id. at 74-75.
Although this is not a defamation case, Garrison’s reasoning regarding the protection of
political discourse persuasively explains why Minn. Stat. § 211B.06 allows sufficient “breathing
space” for free speech. Plaintiffs argue that § 211B.06 is overbroad because it chills them, and
other speakers, from fully engaging in political discourse about ballot initiatives. In support of
this contention, Plaintiffs offer declarations in which they testify about their intent to publish

23

written statements “opposing bond levies which contain strong political rhetoric, are exaggerated
and may not be grounded in verifiable facts.” See, e.g., Brude Decl., Oct. 18, 2012, at ¶ 20. To
a large extent, such statements will not meet the actual malice standard. Minn. Stat. § 211B.06
restricts only those statements that Plaintiffs knew were false, or those statements for which
Plaintiffs “in fact entertained serious doubts as to their truth” before publishing. Cervantes v.
Time, Inc., 464 F.2d 986, 990 (8th Cir. 1972) (citing St. Amant v. Thompson, 390 U.S. 727
(1968)) (discussing standard for reckless disregard for truth). The line between strong rhetoric
and deliberately misleading statements, as articulated in New York Times and Garrison, is clear,
and it adequately protects First Amendment interests in free and open debate.
Plaintiffs argue that the mens rea requirement of § 211B.06 nevertheless fails to narrow
the statute. Because mental intent is necessarily based on circumstantial evidence, Plaintiffs
argue the publisher of an innocently-false statement will always be at risk of prosecution. But
Minn. Stat. § 211B.06 has several procedural safeguards in place that drastically limit the
potential for unfounded or abusive claims. At the outset, a person may only file a civil complaint
under § 211B.32 if they do so under oath. Id. § 211B.32, subd. 3. Within three days of filing,
the OAH then conducts a prima facie review of the complaint. Id. § 211B.33. If the complaint
fails to state a violation of § 211B.06, the OAH will dismiss the complaint. Id. If the complaint
survives, the OAH holds a probable cause hearing. Id. § 211B.34. If the administrative law
judge concludes that the complaint is frivolous, or that there is no probable cause to believe a
violation occurred, the OAH must dismiss the complaint. Id.
Only if a complaint survives to this stage will the OAH then conduct an evidentiary
hearing before a panel of three administrative law judges, which must occur no later than 90

24

days after the original filing. Id. § 211B.35. The complainant has the burden of proving the
defendant’s mental state, and all other elements of the statute, by clear and convincing evidence.
Id. § 211B.32, subd. 4. Even if the complainant succeeds, the defendant may appeal to the
Minnesota Court of Appeals. Id. § 211B.36, subd. 5 (referring to Minn. Stat. § 14.63, et seq.).
Further, the defendant may seek attorney fees and costs if the OAH deems the complaint
frivolous. Id. § 211B.36, subd. 3. Only upon the completion of this process may a county
attorney consider a criminal charge. Id. § 211B.32, subd. 1. This relatively demanding and
thorough process of review, combined with the complainant’s burden of proof, deters unfounded
or abusive complaints. Indeed, the relative scarcity of successful ballot-related complaints
brought to the Court’s attention by the parties is testament to this fact.
Next, Plaintiffs’ argument that Minn. Stat. § 211B.06 impermissibly restricts opinions
also fails because the argument relies on a stilted dichotomy. As the Supreme Court and the
Eighth Circuit have recognized, the difference between a statement of fact and an opinion is
artificial, as opinions may include implicit statements of fact. See Toney v. WCCO Television,
Midwest Cable & Satellite, Inc., 85 F.3d 383, 394 (8th Cir. 1996) (citing Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19-21 (1990)). The Eighth Circuit has thus held that “the First
Amendment absolutely protects opinion that lacks a ‘provably false statement of fact.’”
Aviation Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864, 868 (8th Cir. 2005)
(quoting McClure v. Am. Family Mut. Ins. Co., 223 F.3d 845, 853 (8th Cir. 2000)). Although it
is in a different legal context, Minn. Stat. § 211B.06 specifically avoids application to stated
opinions. The statute applies only to those statements that are provably false; the vast majority
of opinions fall outside of this category.

25

Even when a person publishes a statement about the effect of a ballot measure that is
verifiably false, a complainant under § 211B.06 must still prove that the speaker did so with
knowledge that the statement was actually false or with reckless disregard for whether it was
false. See St. Amant, 390 U.S. at 731 (“high degree of awareness of probable falsity” a
requirement for reckless disregard of the truth standard). These two requirements, of: (1) a
provably false statement, (2) made with actual malice, combine to exclude opinions from
restriction under § 211B.06. The statute only applies to maliciously false statements deliberately
disseminated for the purpose of changing the outcome of a ballot measure. A person
entertaining an opinion in public debate would not come under this scope.
ii. Underinclusive
In addition to being overinclusive, a statute may also fail strict scrutiny if it is
underinclusive. The Supreme Court has held that a restriction is impermissibly underinclusive if
it represents an attempt by the government to favor one side of a public debate over another.
Even if a statute does not discriminate among speakers, significant underinclusiveness may raise
“serious doubts that the government is in fact pursuing the interest it invokes, rather than
disfavoring a particular speaker or viewpoint.” Brown, 131 S. Ct. at 2740. However, a “failure
to regulate all speech” does not necessarily render a statute “fatally underinclusive.” See
Burson, 504 U.S. at 207. This is because legislatures “. . . adopt laws to address the problems
that confront them.” Id.; see also White, 416 F.3d at 762-63. Here, Plaintiffs argue Minn. Stat. §
211B.06 is underinclusive because it does not restrict: (1) television, radio, or internet speech;
and (2) news media editorials.
Contrary to Plaintiffs’ first argument, the plain language of § 211B.06 restricts the use of

26

knowingly false political statements in paid political advertisements on television and radio. The
statute restricts the “preparation, dissemination, or broadcast” of paid political advertising and
campaign material. Id. (emphasis added). The word “broadcast,” by its common definition,
pertains to television and radio media,9 and Plaintiffs offer no contrary argument as to how
“broadcast” refers only to the written word. As with written publications, paid political
advertisements broadcast on television or radio media entail a level of pre-meditation and
persistence of message greater than unscripted spoken statements. Their inclusion in § 211B.06
comports with the overbreadth analysis discussed in Section III.D.2.c.i., above.
Similarly, the statute does not necessarily exclude mass emails or political websites from
its application. The FCPA defines “campaign material” as “any literature, publication, or
material that is disseminated for the purpose of influencing voting at a primary or other election,
except for news items or editorial comments by the news media.” Id. § 211B.01, subd. 2.
Nothing in this definition, or in the undefined term “paid political advertisement,” necessarily
excludes a website, an internet advertisement, or a “mass email” from restriction under §
211B.06. As with paper pamphlets, newsletters, and letters, the OAH must determine on a caseby-case basis whether a particular communication is a paid political advertisement or campaign
material disseminated with the intent of influencing voters.
The County Attorneys argue, and the Court agrees, that the news media exemption is a

9

The dictionary defines “broadcast” as “[t]o disseminate (a message, news, a musical or
dramatic performance, or any audible or visible matter) from a radio or television transmitting
station to the receiving sets of listeners and viewers; said also of a speaker or performer.”
Oxford English Dictionary (Online ed. 2012).
27

legislative judgment that should be accorded deference.10 In an effort to narrowly tailor
restrictions of speech, legislatures may legitimately exclude certain restrictions if they have a
neutral justification for doing so, and do not attempt to favor one viewpoint over another. See,
e.g., Fraternal Order of Police, N.D. State Lodge v. Stenehjem, 431 F.3d 591, 601 (8th Cir.
2005); see also Nat’l Fed’n of the Blind v. F.T.C., 420 F.3d 331, 345-46 (4th Cir. 2005). The
legislature apparently decided in its efforts to restrict knowingly false speech about ballot
initiatives that the news media did not present the same risk of harm as other speakers. See
Burson, 504 U.S. at 207. By exempting the news media, the state legislature attempted to draw a
narrower restriction that balanced First Amendment protection against the best means to achieve
its stated interest. In doing so, the State did not favor a particular viewpoint with regard to ballot
measures. The statute is not fatally underinclusive.
iii. Least restrictive means
If a statute limiting otherwise protected speech is achievable by less restrictive means, the
restriction may not survive strict scrutiny. See, e.g., Assoc. of Cmty. Orgs. for Reform Now v.
City of Frontenac, 714 F.2d 813, 818-19 (8th Cir. 1983). The Supreme Court has held that the
least restrictive means test does not require the law at issue to be less restrictive than any
imaginable alternative. Instead, a statute is “unacceptable if less restrictive alternatives would be
at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004) (citing Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 874 (1997)). Plaintiffs argue, in the context of their compelling

10

Minn. Stat. § 211B.01, which defines “campaign material,” includes the referred to
news media exemption.
28

interest analysis, that counterspeech sufficiently remedies knowingly false statements about
ballot measures. Plaintiffs’ argue counterspeech is a less restrictive yet equally effective means
to prevent voter deception about ballot initiatives than Minn. Stat. § 211B.06. The Court finds
otherwise.
While counterspeech may partially address the State’s compelling interest, it is not as
effective as a limitation against maliciously false political speech about ballot measures. Ballot
initiatives occur in a variety of contexts in Minnesota, ranging from statewide issues to setting
policy for a single, small school district. For the broader, more fiercely contested ballot
measures, counterspeech may serve as an equally-efficient remedy to the restrictions of §
211B.06. Citizens and interest groups are more likely to have the interest and ability to correct
calculated lies, perhaps even those made on the eve of voting.
However, for ballot measures regarding less controversial topics, or regarding local
issues, counterspeech may not always suffice or even exist at all. As Plaintiffs argue, large
power or wealth disparities sometimes exist between the proponents and opponents of a given
ballot measure, particularly regarding local issues. Plaintiffs cite the potential for such disparity
as one reason a person or entity might file abusive claims under Minn. Stat. § 211B.06. But §
211B.06, by employing the force and impartiality of law, actually serves to check the unfair use
of disparate advantage during a campaign. In some instances, an interest group or citizens’
group may go largely unopposed and thus have wide berth to mislead the voting public, perhaps
in an effort to alter a ballot initiative in a way that materially benefits them. In other instances, a
group may so greatly outmatch a political opponent that the message, or correction, offered in
response goes largely unheard. In such cases, the use of deliberate, pernicious falsehoods may

29

be countered, or at least challenged, by a single person filing a claim under § 211B.06.
3. Vagueness
Plaintiffs briefly argue that Minn. Stat. § 211B.06 is unconstitutionally vague. These
arguments are not persuasive. First, Plaintiffs argue that the statute’s prohibition of “false
information” offers no guidance for future conduct. Setting aside the fact that the statute only
uses the term “false information” with regard to an exception to the restriction, the statute
provides sufficient guidance. Section § 211B.06 specifically prohibits the dissemination of false
“paid political advertising” and “campaign material,” and the FCPA specifically defines the
latter. And contrary to Plaintiffs’ assertion that it provides “no ascertainable standard for
conduct,” the statute expressly employs the actual malice standard discussed in New York
Times.
Second, Plaintiffs argue the penalties attached to § 211B.06 are unclear. However, §
211B.32 states that before a county attorney may bring a criminal charge, a civil complaint must
be filed and finally disposed of. Section 211B.35, subd. 2(d), allows the OAH to impose a
maximum civil penalty of $5,000. When the civil proceedings reach a final disposition, the
relevant county attorney has discretion to bring a gross misdemeanor charge under § 211B.06, to
which general state criminal laws apply. Nothing about these penalties is unclear.
E. Attorney General’s Eleventh Amendment Immunity Argument
The Attorney General also revisits an issue previously decided by the Eighth Circuit. On
appeal of Judge Rosenbaum’s initial decision, the Attorney General argued that sovereign
immunity precluded Plaintiffs’ claims against her. The Eighth Circuit disagreed, holding that the
Ex Parte Young doctrine applied to exempt the Attorney General from immunity in this case.

30

See 281 Care, 638 F.3d at 631-33 (citing Ex Parte Young, 209 U.S. 123 (1908)). Although the
Eighth Circuit’s ruling appears to have the same force of reason at the summary judgment stage
as at the motion to dismiss stage, it is unnecessary to reach the issue as the claims are dismissed.
IV. CONCLUSION
Plaintiffs correctly note that our country’s forefathers used rancourous, sometimes false
statements to influence voters or even gain material benefits for themselves. But what’s past is
not always prologue. Over a century ago, the Minnesota legislature implemented minimal,
narrow restrictions against knowingly false speech about political candidates in an effort to
protect the debates between honestly held beliefs that are at the core of the First Amendment.
For nearly a quarter of a century, these restrictions have also applied to statements regarding
ballot initiatives. The ballot provisions in Minn. Stat. § 211B.06 reflect a legislative judgment
on behalf of Minnesotan citizens to guard against the malicious manipulation of the political
process. The Court finds that the provisions at issue are narrowly tailored to serve this
compelling interest.

31

Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1.

Plaintiffs’ Motion for Summary Judgment [Docket No. 111] is DENIED.

2.

Defendants Ross Arneson’s and Michael Freeman’s Motion for Summary
Judgment [Docket No. 98] is GRANTED.

3.

Defendant Lori Swanson’s Motion for Summary Judgment [Docket No. 106] is
DENIED.

4.

All claims in the First Amended Complaint [Docket No. 23] are DISMISSED
WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 25, 2013.

32