False Claims of Police Misconduct and Free Speech

The point of the foregoing discussion is not to conclusively resolve the historical debate over the primary motivation animating the ratification of the First Amendment, but rather to highlight the indisputable principle that criticism of the government—and those who run it—is at the core of the First Amendment. The Supreme Court has recognized as much: “[c]riticism of government is at the very center of the constitutionally protected area of free discussion[, and] [c]riticism of those responsible for government operations must be free, lest criticism of government itself be penalized.” Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Put differently, “[i]t is vital to our form of government that citizens and press alike be free to discuss and, if they see fit, impugn the motives of public officials.” Janklow v. Newsweek, Inc., 788 F.2d 1300, 1305 (8th Cir. 1986); see also Snyder v. Phelps, __ U.S. __, 131 S. Ct. 1207, 1215 (2011) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” (citation omitted)). The statute at issue here, Minn. Stat. § 609.505, subd. 2, punishes precisely the type of speech that is at the “very center” of the First Amendment: statements critical of government officials—in this case, peace officers. Cf. Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (collecting cases holding that police officers are considered public officials under the First Amendment). Because subdivision 2 regulates within an area of core First Amendment expression, it risks chilling valuable speech unless it provides sufficient breathing space to prevent self-censorship or suppression. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). That is, in order to prevent the chilling of truthful speech on a matter of public concern—police misconduct—subdivision 2 must contain either “[e]xacting proof requirements,” Madigan, 538 U.S. at 620, such as a heightened mens rea, New York Times Co., 376 U.S. 279-80; a showing of specific harm, S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 539-41 (1987); or a showing of materiality, United States v. Lepowitch, 318 U.S. 702, 704 (1943); or contain some other “limitations of context” that help to ensure that “the statute does not allow its threat of . . . criminal punishment to roam at large,” Alvarez, 132 S. Ct. at 2555 (Breyer, J., concurring). Given the breadth and practical application of subdivision 2, the statute fails to provide sufficient breathing space for core First Amendment speech. The key risk posed by subdivision 2—a criminal statute—is that legitimate, truthful criticism of public officials will be suppressed for fear of unwarranted prosecution. “[E]ven minor punishments can chill protected speech.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); see also Alexander v. United States, 509 U.S. 544, 565 (1993) (Kennedy, J., dissenting) (“There can be little doubt that regulation and punishment of certain classes of unprotected speech have implications for other speech that is close to the proscribed line, speech which is entitled to the protections of the First Amendment.”). Thus, the mere threat of prosecution may cause some would-be government critics to refrain from voicing their legitimate criticism, “because of doubt whether [their statement] can be proved in court or fear of the expense of having to do so.”