“The capacity for dissociation enables the young child to exercise their innate life-sustaining need for attachment in spite of the fact that principal attachment figures are also principal abusers.”
-Warwick Middleton
In November 2014, a father discovered sexually explicit messages and photographs exchanged between his fifteen-year-old son and forty-one-year-old Krista Muccio. Despite Muccio’s constitutional challenges to her charges, the Minnesota Supreme Court held that Muccio was lawfully charged with felony communication with a child describing sexual conduct. In doing so, the court held that Minnesota Statute section 609.352, subdivision 2a(2) does not substantially regulate protected speech and does not facially violate the First Amendment. Minnesota Statute section 609.352, subdivision 2a(2) prohibits a person eighteen years or older from using “the internet, a computer, or any other electronic device capable of electronic data storage or transmission in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct.” The court held that the statute has a “plainly legitimate sweep” because much of the speech it regulates is integral to criminal conduct and therefore is not protected by the First Amendment. Even though the statute prohibits some speech protected by the First Amendment, the court upheld its validity because the statute is not substantially overbroad in comparison to its legitimate sweep. The Minnesota Supreme Court’s decision in Muccio correctly followed the development of First Amendment jurisprudential doctrine. The constitutional inquiries made by the Minnesota Supreme Court in Muccio are similar to those in many other First Amendment cases. However, the ever-constant creation of new forms of electronic communication necessitates new applications of well-established First Amendment principles. The Muccio decision is particularly ripe for discussion given its relevance in our increasingly technologically-savvy society.
This case note begins by providing some background on the First Amendment’s guarantee of freedom of speech and the underlying statutory framework. A discussion of constitutional doctrine surrounding the First Amendment follows. Next, this note explains the factual and procedural history of Muccio. The analysis section of this note argues that the court reached the correct decision in holding upholding the constitutionality of section 609.352, subdivision 2a(2). Furthermore, in the interest of good public policy, the Minnesota Supreme Court correctly held that the state may criminalize sexual communications with one of the most vulnerable groups in our society: children.