The American Civil Liberties Union has filed an Amicus Brief with the District Court in Hennepin County Minnesota arguing that:
The Minnesota law under which the defendant in this case was charged, and to which he pled guilty, applies both to speech protected by the United States Constitution, and to speech which is unprotected. That is true of the very words of the law, and it is true of its application in the context of this case.
The First Amendment and the Due Process Clause of the Constitution require that a law which covers both protected and unprotected speech:
1. not be so overbroad as to pose a real and substantial threat of ensnaring protected as well as unprotected speech;
2. provide clear standards, to law enforcement and to the public, about where it may be legitimately applied and where it may not;
3. be well crafted to serve the legitimate regulation of speech and not to ensnare protected speech.
It is very doubtful that, on the record as it appears so far, the prosecution in this case can meet any of those requirements. Given that, there is a very real possibility that this defendant pled guilty under circumstances in which the Constitution would not have permitted a conviction. That strongly suggests that in the interests of justice, the defendant should be able to withdraw his plea.
But, that’s not all. According to the ACLU the law which Craig was charged under, was historically found to be unconstitutional. The brief states:
Almost 30 years ago, the Minnesota Supreme Court ruled that the law involved here was unconstitutionally overbroad and vague. It preserved the law by restricting its application to “fighting words,” a restriction which would almost certainly make any conviction in this case a near impossibility. In re S.L.J., 263 N.W.2d 412 (1978).
I am proud to say that the ACLU has outdone themselves on this endeavor. I guess even scandal-clad politicians need help occasionally. Especially those who are so quick to stamp on other’s rights and liberties. My friends and collegues Marc Randazza and Jon Katz have great takes on this issue here and here.