                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1951

                                    State of Minnesota,
                                         Appellant,

                                             vs.

                                    Krista Ann Muccio,
                                       Respondent.

                                    Filed June 20, 2016
                                         Affirmed
                                       Reyes, Judge

                               Dakota County District Court
                                File No. 19HACR151022

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Jennifer S. Bovitz, Assistant County
Attorney, Hastings, Minnesota (for appellant)

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., St. Paul, Minnesota (for
respondent)

Caroline S. Palmer, Minnesota Coalition Against Sexual Assault, St. Paul, Minnesota (for
amicus curiae Minnesota Coalition Against Sexual Assault)

         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Tracy Smith,

Judge.

                                     SYLLABUS

         I.    Minn. Stat. § 609.352, subd. 2a(2) (2014), implicates the First Amendment

because its reach is not limited to unprotected speech.

         II.   Minn. Stat. § 609.352, subd. 2a(2), is facially overbroad in violation of the

First Amendment because it prohibits a substantial amount of protected speech.
       III.   Minn. Stat. § 609.352, subd. 2a(2), cannot be saved by employing a

narrowing construction because it is not readily susceptible to such a construction.

       IV.    Minn. Stat. § 609.352, subd. 2a(2), is an unconstitutional content-based

regulation of speech.

                                      OPINION

REYES, Judge

       Appellant challenges the district court’s order determining that Minn. Stat.

§ 609.352, subd. 2a(2), is unconstitutionally overbroad on its face and dismissing charge

against respondent under the statute. Appellant also argues that the statute is a

permissible content-based regulation of speech. Because we conclude that the statute

implicates both protected and unprotected speech, is unconstitutionally overbroad on its

face, is not readily susceptible to a narrowing construction, and is not narrowly tailored to

achieve the state’s compelling interest of protecting minors from sexual predators on the

Internet, we affirm.

                                          FACTS

       On November 29, 2014, a father reported to law enforcement that he found

inappropriate images on his 15-year-old child’s iPad. The photographs depicted a close-

up of a female’s genitals, a close-up of a female’s buttocks covered by a thong, and a

female naked from the waist to the neck. The photographs were sent from respondent

Krista Ann Muccio’s Instagram account via direct message. A search warrant was

obtained and served on Instagram. The search revealed that Muccio and the child had

sexually explicit conversations and had exchanged sexually explicit photographs.


                                             2
         Appellant State of Minnesota charged Muccio with one count of felony

communication with a minor describing sexual conduct in violation of Minn. Stat.

§ 609.352, subd. 2a(2), and a second count of felony possession of pornographic work

involving minors in violation of Minn. Stat. § 617.247, subd. 4(a) (2014). Muccio filed a

motion requesting that the district court declare Minn. Stat. § 609.352, subd. 2a(2),

unconstitutional, and requesting that the court dismiss the second count. The state

opposed the motion.

         The district court concluded that Minn. Stat. § 609.352, subd. 2a(2), is facially

overbroad and unconstitutional under the First Amendment and dismissed count one.

The district court concluded that there was sufficient evidence to establish probable cause

for trial on the second count.1 The state appeals.

                                           ISSUES

         I.     Does Minn. Stat. § 609.352, subd. 2a(2), proscribe only unprotected speech?

         II.    If Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech, is it

unconstitutionally overbroad on its face because it prohibits a substantial amount of

protected speech?

         III.   If Minn. Stat. § 609.352, subd. 2a(2), is unconstitutionally overbroad, can

the statute be narrowly construed to save it from overbreadth?

         IV.    Is Minn. Stat. § 609.352, subd. 2a(2), narrowly tailored to serve a

compelling government interest?



1
    The district court stayed Muccio’s trial proceedings pending the state’s appeal.

                                               3
                                          ANALYSIS

         The state argues that the district court erred by concluding that Minn. Stat.

§ 609.352, subd. 2a(2), violates the First Amendment to the United States Constitution

and article I, section 3, of the Minnesota Constitution because it is unconstitutionally

overbroad on its face.2 In addition, the state argues that Minn. Stat. § 609.352, subd.

2a(2), is a constitutional content-based regulation of speech. The state asks this court to

reverse the district court and reinstate the charges against Muccio under the statute.

         The constitutionality of Minn. Stat. § 609.352, subd. 2a(2), is an issue of first

impression. “We review the constitutionality of statutes de novo.” State v. Melchert-

Dinkel, 844 N.W.2d 13, 18 (Minn. 2014). The state does not dispute that Minn. Stat.

§ 609.352, subd. 2a(2), is a content-based restriction on speech. Content-based

regulations are presumptively unconstitutional under the First Amendment. United States

v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816–17, 120 S. Ct. 1878, 1888 (2000). “The

[s]tate bears the burden of showing that a content-based restriction on speech does not

violate the First Amendment.” Melchert-Dinkel, 844 N.W.2d at 18.

         The First Amendment to the United States Constitution, which applies to the states

through the Fourteenth Amendment, provides that “Congress shall make no law . . .

abridging the freedom of speech. . . .” U.S. Const. amend. I; Minn. Const. art. I, § 3

(“[A]ll persons may freely speak, write and publish their sentiments on all subjects, being

responsible for the abuse of such right.”). “As a general matter, the [First Amendment]



2
    Muccio did not assert an as-applied challenge to the statute.

                                                4
establishes that, above all else, the government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.” Melchert-Dinkel, 844

N.W.2d at 18 (quotations omitted). “It is . . . well established that speech may not be

prohibited because it concerns subjects offending our sensibilities.” Ashcroft v. Free

Speech Coal., 535 U.S. 234, 245, 122 S. Ct. 1389, 1399 (2002). “In evaluating the free

speech rights of adults, [the Supreme Court has] made it perfectly clear that ‘[s]exual

expression which is indecent but not obscene is protected by the First Amendment.’”

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874, 117 S. Ct. 2329, 2346 (1997)

(second alteration in original) (quoting Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S.

115, 126, 109 S. Ct. 2829, 2836 (1989)).

       Minn. Stat. § 609.352, subd. 2a(2), provides:

                      A person 18 years of age or older who uses the Internet,
              a computer, computer program, computer network, computer
              system, an electronic communications system, or a
              telecommunications, wire, or radio communications system, or
              other electronic device capable of electronic data storage or
              transmission to commit any of the following acts, with the
              intent to arouse the sexual desire of any person, is guilty of a
              felony . . . : engaging in communication with a child or
              someone the person reasonably believes is a child, relating to
              or describing sexual conduct.

“Child” is defined as “a person 15 years of age or younger.” Id., subd. 1(a). “Sexual

conduct” is defined as “sexual contact of the individual’s primary genital area, sexual

penetration as defined in section 609.341, or sexual performance as defined in section

617.246.” Id., subd. 1(b). The statute criminalizes what is referred to as “grooming,” the

process whereby sexual predators engage in sexually explicit conversations with a child



                                             5
and expose the child to pornographic material in an attempt to lower the child’s

inhibitions and acclimate the child toward a sexual encounter. M. Megan McCune,

Virtual Lollipops and Lost Puppies: How Far Can States Go to Protect Minors Through

the Use of Internet Luring Laws, 14 CommLaw Conspectus 503, 506 n.19 (2006).

I.     Minn. Stat. § 609.352, subd. 2a(2), implicates both protected and unprotected
       speech.

       The state argues that Minn. Stat. § 609.352, subd. 2a(2), proscribes only

unprotected speech and therefore is permissible under the First Amendment. We

disagree.

       “The freedom of speech has its limits; it does not embrace certain categories of

speech . . . .” Free Speech Coal., 535 U.S. at 245–46, 122 S. Ct. at 1399. “[T]he

Supreme Court has long permitted some content-based restrictions in a few limited areas,

in which speech is of such slight social value as a step to truth that any benefit that may

be derived from [it] is clearly outweighed by the social interest in order and morality.”

Melchert-Dinkel, 844 N.W.2d at 19 (second alteration in original). Among the traditional

exceptions to the First Amendment are speech integral to criminal conduct, obscenity,

and child pornography. United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality

opinion). The state asserts that the speech at issue is unprotected because it falls within

or may be analogized to these three exceptions. We address each exception in turn.

       A.     Speech integral to criminal conduct

       The state first argues that the speech prohibited under Minn. Stat. § 609.352, subd.

2a(2), is not entitled to First Amendment protection because it is speech integral to



                                              6
criminal conduct. “Offers to engage in illegal transactions are categorically excluded

from First Amendment protection.” United States v. Williams, 553 U.S. 285, 297, 128 S.

Ct. 1830, 1841 (2008). “[T]he First Amendment’s protections do not extend to speech or

writing used as an integral part of conduct in violation of a valid criminal statute.”

Melchert-Dinkel, 844 N.W.2d at 19 (quotation omitted). Speech “intended to induce or

commence illegal activities” such as conspiracy, incitement, and solicitation, is not

protected. Williams, 553 U.S. at 298, 128 S. Ct. at 1842.

       Sexual contact between an adult and a child is criminal conduct which varies in

severity depending on the age of the child and the offender. Minn. Stat. §§ 609.342,

.343, .344, .345 (2014). Soliciting sex from a child is speech integral to criminal conduct

if made with the intent to induce or commence illegal activity. Williams, 553 U.S. at 298,

128 S. Ct. at 1842. The connection between the speech and the illegal act must be direct

and unmistakable.

       But Minn. Stat. § 609.325, subd. 2a(2), sweeps more broadly and prohibits

“engaging in communication with a child or someone the person reasonably believes is a

child, relating to or describing sexual conduct” “with the intent to arouse the sexual

desire of any person.” (Emphasis added.) The state concedes that the statute prohibits

speech which precedes the solicitation of criminal sexual conduct by sexual predators.

Therefore, the prohibited speech is one step removed from speech which has, thus far,

been recognized as speech which is integral to criminal conduct. “The prospect of crime,

however, by itself does not justify laws suppressing protected speech.” Free Speech

Coal., 535 U.S. at 245, 122 S. Ct. at 1399. As with the statute invalidated in Free Speech


                                              7
Coalition, although the communication proscribed by the statute here “can lead to actual

instances of child abuse, the causal link is contingent and indirect. The harm does not

necessarily follow from the speech, but depends upon some unquantified potential for

subsequent criminal acts.” Id. at 250, 122 S. Ct. at 1402 (striking down two provisions of

the Child Pornography Prevention Act) (citations omitted).3

       The state mistakenly relies on State v. Washington-Davis to support its position.

867 N.W.2d 222, 232 (Minn. App. 2015), review granted (Minn. Sept. 29, 2015). The

statute at issue in Washington-Davis prohibits the “solicitation, inducement, and

promotion of prostitution.” Minn. Stat. § 609.322, subd. 1a(1)–(2) (2014). Prostitution is

illegal. Minn. Stat. § 609.324 (2014 & Supp. 2015). The causal link between the speech

and criminal conduct is direct and unmistakable. The speech is “intended to induce or

commence illegal activit[y].” Williams, 553 U.S. at 298, 128 S. Ct. at 1842. In contrast,

Minn. Stat. § 609.325, subd. 2a(2), does not prohibit speech with a direct causal

connection to criminal conduct.

       “To be sure, there remains an important distinction between a proposal to engage in

illegal activity and the abstract advocacy of illegality.” Id. at 298–99, 128 S. Ct. at 1842.

The Supreme Court has held, “The government may not prohibit speech because it

increases the chance an unlawful act will be committed ‘at some indefinite future time.’”

Free Speech Coal., 535 U.S. at 253, 122 S. Ct. at 1403 (quoting Hess v. Indiana, 414


3
 We further note that Minn. Stat. § 609.325, subd. 2a(2), itself cannot be used as a basis
for concluding that the speech-integral-to-criminal-conduct exception applies. See
Melchert-Dinkel, 844 N.W.2d at 20 (rejecting the state’s proposed “circular” analysis of
upholding the challenged statute because the speech was prohibited by that same statute).

                                               8
U.S. 105, 108, 94 S. Ct. 326, 328 (1973)). Similarly, the Minnesota Supreme Court has

noted that “[a]pplying the ‘speech integral to criminal conduct’ exception to harmful

conduct would be an expansion of the exception,” and that, in light of recent Supreme

Court precedent, it was “wary of declaring any new categories of speech that fall outside

of the First Amendment’s umbrella protections.” Melchert-Dinkel, 844 N.W.2d at 20.

       The state “has shown no more than a remote connection between speech that

might encourage thoughts or impulses and any resulting child abuse. Without a

significantly stronger, more direct connection, the [g]overnment may not prohibit speech

on the ground that it may encourage [sexual predators] to engage in illegal conduct.”

Free Speech Coal., 535 U.S. at 253–54, 122 S. Ct. 1403. Interpreting the speech

prohibited by Minn. Stat. § 609.325, subd. 2a(2), as falling within the speech-integral-to-

criminal-conduct exception would require that we expand the application of the

exception. We thus conclude that the speech-integral-to-criminal-conduct exception, as

currently interpreted, is inapplicable.

       B.     Obscenity

       The state next argues that Minn. Stat. § 609.352, subd. 2a(2), prohibits speech

which is obscene and therefore is not entitled to First Amendment protection. In Miller v.

California, the Supreme Court

              set forth the governing three-part test for assessing whether
              material is obscene and thus unprotected by the First
              Amendment: “(a) [W]hether the ‘average person, applying
              contemporary community standards’ would find that the work,
              taken as a whole, appeals to the prurient interest; (b) whether
              the work depicts or describes, in a patently offensive way,
              sexual conduct specifically defined by the applicable state law;


                                             9
              and (c) whether the work, taken as a whole, lacks serious
              literary, artistic, political, or scientific value.’’

Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 574, 122 S. Ct. 1700, 1707 (2002)

(alteration in original) (quoting Miller v. California¸ 413 U.S. 15, 24, 93 S. Ct. 2607,

2615 (1973)). The state argues that the requirements of Minn. Stat. § 609.352, subd.

2a(2), satisfy the three prongs of the Miller obscenity test. Specifically, the state argues

that the requirement that the communication be made with the intent to arouse the sexual

desire of any person in conjunction with the requirement that the communication be with

a child or someone the person reasonably believes is a child satisfies the first and third

prongs of the Miller test. But these elements of Minn. Stat. § 609.352, subd. 2a(2), do

not narrowly limit the statute’s reach to communications which appeal to the prurient

interest under contemporary community standards, nor do they exclude from the statute’s

ambit speech which has social value. Cf. Am. Civil Liberties Union, 535 U.S. at 578, 122

S. Ct. at 1709 (concluding that statute regulating matters consistent with the Miller

obscenity requirements was not substantially overbroad). We therefore conclude that,

because the speech proscribed by the statute is not limited to obscene speech under

Miller, the obscenity exception is inapplicable.

       C.     Child pornography

       Lastly, the state argues that Minn. Stat. § 609.352, subd. 2a(2), though not

prohibiting child pornography, may be analogized to the statutes prohibiting child

pornography, and the prohibited speech therefore is unprotected under the First

Amendment. In New York v. Ferber, the Supreme Court concluded that child



                                             10
pornography is unprotected speech and upheld a New York state law banning the sale or

promotion of child pornography. 458 U.S. 747, 102 S. Ct. 3348 (1982). The Court

reached this conclusion by “distinguish[ing] child pornography from other sexually

explicit speech because of the [s]tate’s interest in protecting the children exploited by the

production process.” Free Speech Coal., 535 U.S. at 240, 122 S. Ct. 1396 (citing Ferber,

458 U.S. at 758, 102 S. Ct. 3355).

       The policy justifications supporting the child pornography category of unprotected

speech are inapplicable here because children need not be exploited by or even involved

in the process of producing the speech prohibited by Minn. Stat. § 609.352, subd. 2a(2).

Indeed, children need not be depicted, nor is any imagery required. Id. There need only

be a “communication . . . relating to or describing sexual conduct.” Id. Accordingly, this

unprotected-speech category is inapplicable, and we cannot expand its application.

       In sum, the speech prohibited by Minn. Stat. § 609.352, subd. 2a(2), is not limited

to speech integral to criminal conduct or obscenity, nor can we deem the proscription

permissible by analogizing it to child pornography. We therefore conclude that the

statute proscribes protected speech and implicates the First Amendment.

II.    Minn. Stat. § 609.352, subd. 2a(2), is facially overbroad in violation of the
       First Amendment.

       The state asserts that the district court erroneously concluded that Minn. Stat.

§ 609.352, subd. 2a(2), is unconstitutionally overbroad on its face because any potentially

overbroad applications of the statute are not substantial. We are not persuaded.




                                             11
       “A statute is overbroad on its face if it prohibits constitutionally protected activity,

in addition to activity that may be prohibited without offending constitutional rights.”

State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). “The overbreadth doctrine

prohibits the [g]overnment from banning unprotected speech if a substantial amount of

protected speech is prohibited or chilled in the process.” Free Speech Coal., 535 U.S. at

255, 122 S. Ct. at 1404. The overbreadth must be substantial “not only in an absolute

sense, but also relative to the statute’s plainly legitimate sweep.” Williams, 553 U.S. at

292, 128 S. Ct. at 1838. Applying the overbreadth doctrine to invalidate a statute is

“‘strong medicine’ that is used ‘sparingly and only as a last resort.’” N.Y. State Club

Ass’n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S. Ct. 2225, 2234 (1988) (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916 (1973)).

       We conclude that Minn. Stat. § 609.352, subd. 2a(2), “suppresses a large amount

of speech that adults have a constitutional right to receive and to address to one another.”

Am. Civil Liberties Union, 521 U.S. at 874, 117 S. Ct. at 2346. Several facets of the

statute give rise to its substantial overbreadth. First, the statute’s intent requirement is

satisfied if the adult has “the intent to arouse the sexual desire of any person.” Minn.

Stat. § 609.352, subd. 2a(2) (emphasis added). Second, the communication need only be

“relating to or describing sexual conduct.” Id. (emphasis added). Third, “engage” is not

defined, so it is unclear whether a one-way communication would be sufficient. Id.

Finally, the communication need not be direct, exclusively between the adult and the

child, or concerning sexual conduct between the adult and the child. Id.




                                              12
       The district court gave several examples that illustrate the statute’s overbreadth

which we find persuasive and reiterate here. A music video producer creates a video with

sexually explicit depictions or lyrics, with the intent to arouse the sexual desire of some

person who views or listens to the video, places that video on social media, and a child

age 15 or younger sees or hears it. A film producer produces a movie with sex scenes,

with the intent to arouse the sexual desire of some person who views the film, makes that

movie available on an Internet streaming service, and a child age 15 or younger sees it.

A writer of young-adult fiction electronically publishes a book describing a sex scene,

with the intent to arouse the sexual desire of any one of the book’s readers, and a child

age 15 or younger reads it. All of these acts are criminalized under Minn. Stat.

§ 609.352, subd. 2a(2).

       The state argues that the statute is not overbroad because it includes a specific

intent requirement. But the state cites no authority for the proposition that expression

made with the specific intent to arouse the sexual desire of any person, even in the

context of a communication with a child, is speech unprotected by the First Amendment.

Additionally, the state argues that the statute is not overbroad by suggesting that the

statutory definition of sexual conduct is limited to sexual conduct between the adult and

the child. But the applicable definition of sexual conduct contains no such limitation.

Sexual conduct is defined to include “sexual contact of the individual’s primary genital

area.” Id., subd. 1(b) (emphasis added). “The individual” is not further restricted to the

adult subject to the statute or the child whom the adult is grooming. The statute thus




                                             13
covers communications relating to or describing the sexual conduct of any person, further

contributing to its overbreadth.

       Finally, at oral argument, the state urged this court to conclude that the statute is

constitutional because prosecutorial discretion will save the statute from absurd

applications. But as the Supreme Court has stated, “[T]he First Amendment protects

against the [g]overnment; it does not leave us at the mercy of noblesse oblige. We would

not uphold an unconstitutional statue merely because the [g]overnment promised to use it

responsibly.” United States v. Stevens, 559 U.S. 460, 480, 130 S. Ct. 1577, 1591 (2010).

Moreover, the state’s argument that prosecutors will, in their discretion, exercise their

authority under the statute only as it was intended is “an implicit acknowledgement of the

potential constitutional problems with a more natural reading.” Id.

       The state is undoubtedly attempting to prohibit speech which poses a risk to

vulnerable children. “The precedents establish, however, that speech within the rights of

adults to hear may not be silenced completely in an attempt to shield children from it.”

Free Speech Coal., 535 U.S. at 252, 122 S. Ct. at 1402. “The [g]overnment cannot ban

speech fit for adults simply because it may fall into the hands of children.” Id. at 252,

122 S. Ct. at 1403. Therefore, though the statute’s aim is laudable, the law is

unconstitutionally overbroad because the “restriction goes well beyond that interest by

restricting the speech available to law-abiding adults.” Id. at 252–53, 122 S. Ct. at 1403.




                                             14
III.   Minn. Stat. § 609.352, subd. 2a(2), cannot be narrowly construed.

       The state argues that, if Minn. Stat. § 609.352, subd. 2a(2), is unconstitutionally

overbroad on its face, the court should apply a limiting construction to uphold the law’s

constitutionality. We are unable to do so.

       If at all possible, we are to interpret a statute to “preserve its constitutionality.”

Hutchinson Tech., Inc. v. Comm’r of Revenue, 698 N.W.2d 1, 18 (Minn. 2005); see also

Minn. Stat. § 645.17(3) (2014) (“[T]he legislature does not intend to violate the

Constitution of the United States or of this state.”). But a limiting construction should be

imposed only if a statute is “readily susceptible to such a construction.”4 Stevens, 559

U.S. at 481, 130 S. Ct. at 1591–92 (quotation omitted). A statute is invalid if its terms

leave no room for a narrowing construction. Bd. of Airport Comm’rs v. Jews for Jesus,

Inc., 482 U.S. 569, 575–77, 107 S. Ct. 2568, 2572–73 (1987).

       The state proposes several statutory revisions. First, the state proposes that we

limit the “intent to arouse the sexual desire of any person” to the intent to arouse the

sexual desire of the adult or child engaging in the communication. Second, the state

proposes that we limit the definition of “sexual conduct” to sexual contact, penetration, or




4
  While the state argues that the statute is unambiguous, it nevertheless requests that we
apply a limiting construction to save the statute, invoking the canon of constitutional
avoidance. But the canon of constitutional avoidance only applies to “ambiguous
statutory language.” Stevens, 559 U.S. at 481, 130 S. Ct. at 1591–92 (quoting F.C.C. v.
Fox Television Stations, Inc., 556 U.S. 502, 516, 129 S. Ct. 1800, 1811 (2009)).

                                               15
performance “between the adult and the child.” Third, the state argues that the statute

should be construed to require a “direct communication from adult to child.”5

       All of the state’s proposed limiting constructions require that we add language to

Minn. Stat. § 609.352, subd. 2a(2). Adding language requires a rewrite of the statute and

“would constitute a serious invasion of the legislative domain and sharply diminish [the

legislature’s] incentive to draft a narrowly tailored law in the first place.” Stevens, 559

U.S. at 481, 130 S. Ct. at 1592 (quotations omitted). We therefore conclude that the

statute is not readily subject to a narrowing construction to save it from overbreadth.

IV.    Minn. Stat. § 609.352, subd. 2a(2), is an unconstitutional content-based
       regulation of speech.

       Finally, the state contends that, if we determine Minn. Stat. § 609.352, subd. 2a(2),

applies to protected expression, the statute is nevertheless a constitutional content-based

restriction on speech. We disagree.

       A statute that regulates speech based on content is unconstitutional unless it

satisfies strict scrutiny. See Playboy Entm’t Grp., Inc., 529 U.S. at 813, 120 S. Ct. 1886.

To satisfy strict scrutiny, the state must show that the statute

              (1) is justified by a compelling government interest and (2) is
              narrowly drawn to serve that interest. The [s]tate must
              specifically identify an actual problem in need of solving, and
              the curtailment of free speech must be actually necessary to the
              solution. In other words, [t]here must be a direct causal link
              between the restriction imposed and the injury to be prevented.



5
 The state does not propose a limiting construction for the “relating to . . . sexual
conduct” language, nor does the state address the ambiguity surrounding the definition of
“engage.” Minn. Stat. § 609.352, subd. 2a(2) (emphasis added).

                                              16
Melchert-Dinkel, 844 N.W.2d at 21–22 (second alteration in original) (quotations and

citations omitted).

       As previously noted, Minn. Stat. § 609.352, subd. 2a(2), prohibits “grooming,” the

process whereby sexual predators “use pictures and conversations to [i]nterest a victim in

or overcome inhibitions about sexual activity.” McCune, supra, at 506 n.19 (alteration in

original) (quotation omitted). We agree, and the parties do not dispute, that the state has

a compelling interest in prohibiting this conduct. “The sexual abuse of a child is a most

serious crime and an act repugnant to the moral instincts of a decent people.” Free

Speech Coal., 535 U.S. at 244, 122 S. Ct. at 1399. “The prevention of sexual exploitation

and abuse of children constitutes a government objective of surpassing importance.”

Ferber, 458 U.S. at 757, 102 S. Ct. 3355. Therefore, the question is whether the statute is

sufficiently narrowly tailored to serve this compelling interest.

       Under the narrowly tailored inquiry,

              a court assumes that certain protected speech may be regulated,
              and then asks what is the least restrictive alternative that can
              be used to achieve that goal. The purpose of the test is to ensure
              that speech is restricted no further than necessary to achieve
              the goal, for it is important to ensure that legitimate speech is
              not chilled or punished.

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666, 124 S. Ct. 2783, 2791 (2004).

Minn. Stat. § 609.352, subd. 2a(2), restricts significantly more speech than is necessary to

achieve the state’s compelling interest of protecting children from sexual predators on the

Internet. Thus, for the same reasons we concluded that the statute is infirm under the




                                              17
overbreadth doctrine, we conclude that the statute is not sufficiently narrowly tailored to

serve the state’s compelling interest.

                                         DECISION

       Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech and is facially

overbroad in violation of the First Amendment. Further, because any attempt to construe

the statute constitutionally would require that we rewrite the statute, which would

constitute an invasion of the legislative domain and discourage the legislature from

drafting a narrowly tailored law, we decline to do so. Finally, the statute is not narrowly

drawn to serve the state’s compelling interest in protecting children from sexual abuse

and exploitation on the Internet and therefore is an unconstitutional content-based

regulation of speech.

       Affirmed.




                                             18
