Minnesota court strikes down defamation law in overturning conviction of Craigslist revenge poster

The Minnesota Court of Appeals on Tuesday overturned an Isanti County man’s conviction for posting sexually explicit comments on Craigslist that he claimed came from his ex-girlfriend and her 17-year-old daughter. The ruling struck down a 52-year-old state law.

A three-judge panel declared the 1963 criminal defamation law unconstitutional, saying it had the potential to criminalize true statements, which are protected under the First Amendment right to free speech. The court also said that the law rendered the standard for conviction in a criminal-law case less stringent than the threshold for winning a civil case.

In a 13-page ruling written by Judge Denise Reilly, the court called Timothy Robert Turner’s behavior “reprehensible and defamatory,” but set aside his 2014 conviction in Isanti County District Court.

Lawyers on both sides say state law doesn’t give prosecutors a specific crime to use when they are charging someone accused of impersonating someone online with the intent to cause harm or harassment. Assistant Isanti County Attorney Deanna Natoli, who prosecuted the case, said she testified this year at the Legislature in favor of such a law. Her boss, County Attorney Jeffrey Edblad, said he hopes legislators will consider enacting such a law during the anticipated special session.

“Right now it leaves victims without a remedy,” Natoli said of the law struck down by the court. She said prosecutors had considered charging Turner with disorderly conduct, but didn’t think it reflected the severity of his behavior as well as the felony libel charge did.

In August 2013, Turner posted Craigslist ads in retaliation for an argument with his former girlfriend. Posing as his ex and her daughter, he put ads in a section for women seeking sex with men. Turner included the cellphone numbers for his ex and her daughter. The women learned of the postings when they started receiving pornographic photos and videos from men.

Turner, 50, of Mora, who declined an interview request Tuesday, admitted he published the ads, saying he was angry at his ex and her daughter. The Isanti County prosecutor charged him with two counts of defamation. Turner waived his right to a jury trial and agreed to submit a set of facts to Isanti County Judge Amy Brosnahan for her to decide the case. She convicted Turner and he appealed. Turner’s fine and 30-day sentence were put on hold pending the appeal.

John Arechigo, a criminal defense attorney, represented Turner. “This charge of criminal defamation, we’ve seen this pop up in the area of revenge porn cases with the posting of photos and sex videos,” he said.

Not anymore. Regardless of Turner’s behavior, Arechigo successfully argued his behavior was irrelevant because the law is unconstitutional.

Prosecutors haven’t ruled out asking the state Supreme Court to review the decision. But they also say Turner won’t be charged under a different law because that would be illegal double jeopardy.

A ‘sitting duck’ law

Eugene Volokh, a prominent First Amendment lawyer at the University of California, Los Angeles, said the ruling striking down the law was “quite mainstream; not at all unusual.” The Legislature could pass a new law or Minnesota could join about half of the states that don’t have criminal defamation laws, Volokh said.

Volokh, who filed an amicus brief in support of Turner’s case, said that since the 1960s, the U.S. Supreme Court has narrowly defined defamation as knowing and willful falsehood. Minnesota’s law predated the landmark U.S. Supreme Court libel case New York Times vs. Sullivan that set the defamation standard mostly intact now.

Minnesota First Amendment lawyer Mark Anfinson said the state’s criminal defamation law has been a “sitting duck constitutionally for decades” and that the Isanti County case gave the court a clear shot at upending it. “It’s hardly ever used — it isn’t pulled out of the toolbox by prosecutors very often,” he said.

While the decision will let people off the hook “who are clearly guilty of very serious behavior,” it protects the greater interest of a First Amendment guarantee of free speech, Anfinson said. “You can debate the principle, but it’s a noble one.”

Also participating in the ruling were Chief Judge Edward Cleary and Judge Kevin Ross.

Cleary was on familiar ground. As a part-time public defender in the early 1990s, he picked up a case that became a landmark U.S. Supreme Court ruling. Cleary successfully defended a St. Paul teenager who burned a cross in the back yard of a black family. The Supreme Court in 1992 struck down St. Paul’s hate-speech ordinance that banned disfavored viewpoints on select subjects.