Criminally speaking?

A new law could allow Minnesotans to be prosecuted or sued for speaking out on matters of voter eligibility.

Under a new law, Minnesota residents could be prosecuted or sued for speaking out on matters of voter eligibility — or even intending to speak out. One new law criminalizes “materially false statements” that intend to “impede or prevent” someone from voting. Who decides which statements fall into this category? Shockingly, Minnesota Attorney General Keith Ellison, elected county attorneys, and any Minnesotan who claims to have been harmed by such speech.

This new law alarmed three Minnesota residents who are speaking out against the state’s Felon Voting law, which gave non-incarcerated felons the right to vote starting in June.

Mary Amlaw, Ken Wendling, Tim Kirk, and the Minnesota Voters Alliance (MVA) believe the law is unconstitutional and are suing the state of Minnesota to stop its enforcement. The Minnesota Constitution, they argue, makes it clear that felons cannot vote until they have served their full sentences — which, they say, includes time on probation, supervised release, and work release.

If any of them say so publicly — that the Minnesota Constitution bars felons on probation, supervised release, or work release from voting — they could be sued by the state attorney general, the county attorney, or any regular citizen who claims to be injured by their speech within 60 days of an election. Amlaw, Wendling, Kirk, and the MVA call this new speech code the “Don’t Say Felon” law.

According to James Dickey, senior counsel at the Upper Midwest Law Center (UMLC), this threat directly violates his clients’ First Amendment rights.

“The law itself actually perpetuates fraud because it allows any person who claims to be injured to bring a lawsuit against the person who spoke,” says Dickey. “Given the text of the law, any person of ordinary firmness would think twice before speaking out about [the Felon Voting law].”

Incredibly, this “speech code” criminalizes even intending to say something that a political opponent could claim is false.

“One of the really crazy things about this law is that you can be sued because someone makes the claim that you intend to violate the law — you haven’t even done it yet, but that you’re about to do it,” Dickey says. “That’s called a ‘prior restraint’ and is the worst kind of First Amendment violation.”

Given the threat of legal action, UMLC argues, the “Don’t Say Felon” law could discourage everyday citizens from talking about voter eligibility.

“You have a First Amendment right to file a lawsuit. It’s called a right to petition a court for the redress of grievances. So if our clients file a lawsuit arguing that felons can’t vote until they finish their sentences and then they talk about the lawsuit outside of court, does that mean they’re violating the statute and they’re subject to prosecution? All because you argued that felons can’t vote until they finish their sentence?” says Dickey.

Minnesotans found guilty of violating the law face criminal penalties of up to $3,000 and a year in jail, plus civil penalties of up to $1,000 per violation, plus the other side’s attorney fees. And even if they win their case, they’ll still have to pay their own lawyer’s legal fees.

“Theoretically speaking, let’s say you win your defense and the attorney general loses. What have you won? Even if you win the case, you don’t get your attorney’s fees paid. So all you win is higher legal bills from your own lawyer,” says Dickey.

Altogether, UMLC argues, the “Don’t Say Felon” law unfairly “chills political speech.” Since it deals with elections, simply bringing the charge against a political opponent (or activist) would be enough to cause irreparable harm. By the time the case is settled, even if you’ve successfully defended your speech, your election is likely over.

Given the risk of irreparable harm, UMLC plans to ask the court for a preliminary injunction, which prevents the law from being enforced until the case is decided.

“Our plaintiffs are really just regular folks who happen to care about the future of their state and their country, and they are therefore involved politically,” says Dickey. “And any person, regardless of their political stripes, should be able to say whatever they want about political issues and be able to talk freely. And the First Amendment guarantees that. It’s really disturbing that the government of Minnesota believes that people should be told what they can and cannot say in the moments leading up to an election.

“So this lawsuit aims to put an end to that kind of paternalism, which has no place in our democracy.”