“The right to swing my fist ends where the other man’s nose begins” is an axiom not always, but often attributed to Oliver Wendell Holmes. Whichever learned individual penned it, the quotation exemplifies the omnipresent and judicially confounding tension between “freedom of” and “freedom from” speech and expression.
In reviewing In re Welfare of A.J.B., the Minnesota Supreme Court invalidated Minnesota’s stalking-by-mail statute and narrowed the mail-harassment statute. Under the first statute, stalking-by-mail occurs when a person “repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages” and “the actor knows or has reason to know [this conduct] would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated.” Pursuant to the second statute, mail harassment occurs when an actor “with the intent to abuse, disturb, or cause distress, repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, or packages.”
The court determined both statutes were sufficiently overbroad and violated the First Amendment. While the court invalidated the first statute in its entirety, it saved the second statute by severing the overbroad language. In doing so, the court balanced the importance of maintaining the protections offered by the statute with the constitutional right to free speech.
This Paper examines the court’s decision and whether it could have (and should have) gone further to protect Minnesotans’ safety while maintaining their First Amendment protections. The Paper begins with a history of significant cases and government action involving the First Amendment that both broadened and narrowed protected speech and expressive conduct. This Part also explores some of the limited exceptions to First Amendment protections. The Paper then discusses the facts and procedural posture of In re Welfare of A.J.B. Next, it explores the overbreadth doctrine in relation to A.J.B., how speech can be considered conduct, and whether hate speech should maintain constitutional protection. Then, the Paper looks at the First Amendment in a modern context, specifically how private actors intervene to fill the gaps left by the government. Finally, it concludes that, while the court was correct in its ruling on the legal merits of the challenge, it missed an opportunity to create additional societal protections by narrowing protected speech, ultimately weakening its reasoning.