                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2016).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0104

                                 State of Minnesota,
                                    Respondent,

                                          vs.

                               Irene Bernice Benjamin,
                                      Appellant.

                               Filed January 17, 2017
                                      Affirmed
                                Smith, John, Judge *

                           Mille Lacs County District Court
                               File No. 48-CR-15-1422


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

Joe Walsh, Mille Lacs County Attorney, Kali A. Gardner, Assistant County Attorney,
Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith,

John, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SMITH, JOHN, Judge

       We affirm Appellant Irene Bernice Benjamin’s misdemeanor disorderly conduct

conviction because her actions were not protected by the First Amendment and the district

court did not commit reversible error when instructing the jury.

                                          FACTS

       Around 3:00 p.m. on Tuesday, June 30, 2015, Appellant Irene Bernice Benjamin

entered the Mille Lacs Band Government Center, which housed tribal government agencies

including the Mille Lacs Tribal Police Department and the offices of the band’s Chief

Executive and Solicitor General. Benjamin first went into the Chief Executive’s Office to

discuss her request to attend a hearing at a band-owned facility. Benjamin was “agitated”

but interacting “normal[ly]” with C.G., an administrative assistant, in the Chief Executive’s

Office. Benjamin then went into the Solicitor General’s Office, which was next door to the

Chief Executive’s Office and one floor above the police department.

       While in the reception area of the Solicitor General’s Office, Benjamin “shrieked”

the name of Deputy Solicitor General D.P. D.P. emerged from a conference room and

began to interact with Benjamin from the other side of the reception desk; Benjamin was

agitated, speaking in a “sharp” voice about her request to attend the hearing. When D.P.

repeatedly informed Benjamin that the Solicitor General’s Office could not and would not

authorize her attendance at the hearing, Benjamin became “increasingly agitated” and

“increasingly hostile” toward D.P. She escalated to “cursing, yelling, . . . and screaming,”

and she leaned on the reception desk as she used her fists to bang the desk “violently.”


                                             2
Benjamin was “inches” from D.P.’s face as she yelled at him, “essentially . . . chest-to-

chest.”

          D.P. found Benjamin’s actions “really disconcerting.” He thought that Benjamin

might strike him or otherwise “get violent,” and although he was not concerned for his

physical safety, he was worried about how the conflict with Benjamin might impact his

relatively new employment at the Solicitor General’s Office. D.P. attempted to call the

police, but the call did not go through because D.P. did not know how to operate the office

phone system. He felt “stuck” and did not know what to do, so he “stopped . . . reacting to

what [Benjamin] was saying” and repeatedly told her to leave.

          Meanwhile, C.G. heard from her work area in the Chief Executive’s Office

Benjamin’s “[l]oud yelling” in the Solicitor General’s Office. The yelling seemed

“negative” and was “very loud,” interfering with C.G.’s work and that of other people in

the area. C.G. called the police because she felt that Benjamin was being “disruptive” to

the government.

          Officer Julian Walker responded to C.G.’s call by walking up the two flights of

stairs from the police department to the Solicitor General’s Office. Upon exiting the police

department, Officer Walker heard “yelling and screaming.” When he reached the Solicitor

General’s Office, he saw Benjamin “[y]elling” and “screaming” at D.P. “in close proximity

[to] him.” D.P. appeared “uncomfortable.” Officer Walker arrested Benjamin and took her

into custody.

          Respondent State of Minnesota charged Benjamin with misdemeanor disorderly

conduct under Minn. Stat. § 609.72, subd. 1(3) (2014), which criminalizes one’s


                                             3
“engage[ment] in offensive, obscene, abusive, boisterous, or noisy conduct or [one’s use

of] offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or

resentment in others.” A jury found Benjamin guilty as charged; the district court

adjudicated Benjamin’s guilt and sentenced her to six months’ unsupervised probation.

         Benjamin appeals.

                                      DECISION

         Benjamin first argues that her conviction must be reversed because her actions in

the Solicitor General’s Office were protected by the First Amendment. Although Benjamin

may attempt to frame this argument as an as-applied overbreadth challenge to the

disorderly-conduct statute, the state treats this argument as a challenge to the sufficiency

of the evidence to support Benjamin’s conviction of disorderly conduct. In substance,

Benjamin argues that speech and expressive conduct may be criminalized only if they

constitute “fighting words,” that Benjamin’s actions were limited to speech and expressive

conduct that did not constitute “fighting words,” and that Benjamin’s actions therefore

cannot support her disorderly-conduct conviction. Whether analyzed as an as-applied

overbreadth challenge or as an evidentiary-sufficiency challenge, Benjamin’s argument

fails.

         It is true that “[t]he Minnesota Supreme Court has ruled that a conviction of

disorderly conduct cannot be predicated only on a person’s words unless those words are

‘fighting words,’” State v. McCarthy, 659 N.W.2d 808, 810-11 (Minn. App. 2003) (quoting

In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978)), defined as “words ‘which by

their very utterance inflict injury or tend to incite an immediate breach of the peace,’” State


                                              4
v. Crawley, 819 N.W.2d 94, 104 n.9 (Minn. 2012) (quoting Chaplinsky v. New Hampshire,

315 U.S. 568, 572, 62 S. Ct. 766, 769 (1942)). In so ruling, the supreme court reasoned as

follows:

              [I]t is clear that, as written, § 609.72, subd. 1(3), is both overly
              broad and vague. Since the statute punishes words alone—
              “offensive, obscene, or abusive language”—, it must be
              declared unconstitutional as a violation of the First and
              Fourteenth Amendments unless it only proscribes the use of
              “fighting words.” Section 609.72, subd. 1(3), however,
              punishes words that merely tend to “arouse alarm, anger, or
              resentment in others” rather than only words which by their
              very utterance inflict injury or tend to incite an immediate
              breach of the peace. Since the statute does not satisfy the
              definition of “fighting words,” it is unconstitutional on its face.

                    Although § 609.72, subd. 1(3), clearly contemplates
              punishment for speech that is protected under the First and
              Fourteenth Amendments, we can uphold its constitutionality
              by construing it narrowly to refer only to “fighting words.”

S.L.J., 263 N.W.2d at 418-19 (footnotes omitted) (quotation omitted).

       As noted above, the disorderly-conduct statute criminalizes both the use of

“offensive, obscene, or abusive language” and the “engage[ment] in offensive, obscene,

abusive, boisterous, or noisy conduct.” Minn. Stat. § 609.72, subd. 1(3). We have

distinguished between the criminalization of “mere speech,” S.L.J., 263 N.W.2d at 420, or

“words alone,” In re Welfare of T.L.S., 713 N.W.2d 877, 880 (Minn. App. 2006), and the

criminalization of actions that include but are not limited to speech, as follows:

              Although [under S.L.J.] the disorderly conduct statute prohibits
              only “fighting words” as applied to speech content, the
              disorderly shouting of otherwise protected speech or engaging
              in other boisterous or noisy conduct may still trigger
              punishment under the statute without offending the First
              Amendment. In that circumstance, it is not the speech itself that


                                               5
              triggers punishment; the statute may be applied to punish the
              manner of delivery of speech when the disorderly nature of the
              speech does not depend on its content.

T.L.S., 713 N.W.2d at 881 (quotation marks omitted); see also McCarthy, 659 N.W.2d at

811 (“In determining if [the defendant’s] actions were sufficient to support a conviction of

disorderly conduct, we view his words, coupled with his conduct and physical movements,

and measure them as a package against the controlling statute.” (quotation omitted)).

Indeed, we have unequivocally stated that “the narrowing construction of S.L.J. does not

apply to the conduct-based proscriptions in the disorderly conduct statute.” State v. Hensel,

874 N.W.2d 245, 256 (Minn. App. 2016), review granted (Minn. Apr. 19, 2016).

       But we have also stated that “[l]oud and even boisterous conduct is protected under

Minnesota law, when that conduct is expressive and inextricably linked to a protected

message.” State v. Peter, 798 N.W.2d 552, 556 (Minn. App. 2011) (emphasis added)

(quotation omitted). Persuasive authority also holds that the S.L.J. narrowing construction

applies to “conduct . . . [that] is expressive and inextricably linked to [a] protected

message.” Baribeau v. City of Minneapolis, 596 F.3d 465, 477-78 (8th Cir. 2010); see State

v. Eichers, 840 N.W.2d 210, 216 (Minn. App. 2013) (“Although not binding on Minnesota

state courts, Eighth Circuit caselaw can be persuasive.”), aff’d on other grounds, 853

N.W.2d 114 (Minn. 2014).

       Symbolic or expressive conduct, like actual speech, is protected by the First

Amendment. Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 1547 (2003). But the

notion of speech-delivery conduct with an “inextricable link” to a protected message

appears to have originated in State v. Machholz, 574 N.W.2d 415 (Minn. 1998). That case


                                             6
involved a criminal defendant’s constitutional challenges to harassment charges that were

based on the defendant’s actions in riding a horse approximately four times through a

crowd at a gay pride event in downtown Rochester; shouting anti-gay sentiments; and

“sw[i]ng[ing] the horse’s lead rope at an easel that held a sign announcing the event,

knocking the easel over.” Machholz, 574 N.W.2d at 417-18. The supreme court concluded

that the harassment charges must be dismissed because the statute on which they were

based, which criminalized “‘harassing conduct that interferes with another person or

intrudes on the person’s privacy or liberty,’” was overbroad both on its face and as applied

to the defendant. Id. at 418, 421 (quoting Minn. Stat. § 609.749, subd. 2(7) (1996)). In

concluding that the statute was overbroad as applied to the defendant, the court reasoned

in part:

              First Amendment protection is not limited to the written or
              spoken word; it extends to some expressive activity, because the
              activity by itself may be communicative. The . . . test for
              determining whether conduct is sufficiently expressive to merit
              First Amendment protection . . . looks at whether an intent to
              convey a particularized message was present, and in the
              surrounding circumstances the likelihood was great that the
              message would be understood by those who viewed it.

                     ....

                      . . . [The defendant]’s actions, combined with his speech,
              constitute expressive activity under the First Amendment. He
              had an intent to convey the message that he opposes the lifestyle
              of homosexuality, and, given the surrounding circumstances, a
              reasonable person viewing his activities would have understood
              that message of opposition. Although in some instances it is
              possible to separate protected speech from unprotected conduct,
              under the facts of this case, we cannot find a way to logically
              do so. The words used by [the defendant] are inextricably linked
              to the conduct of riding his horse through the crowd. We find it


                                             7
              difficult to believe that [the defendant] would have been
              charged under this statute had he simply ridden through the
              crowd without saying a word.

Id. at 419-21 (quotation and citations omitted).

       The Eighth Circuit relied on Machholz in considering the actions of civil-rights

plaintiffs who, in “protest [of] the ‘mindless’ nature of consumer culture,” walked

erratically through a summer festival in downtown Minneapolis “in a stiff, lurching

fashion” and came within three feet of bystanders while wearing zombie costumes and

makeup, playing music from four bags of sound equipment, and broadcasting statements

such as “get your brains here.” Baribeau, 596 F.3d at 470-71, 475. The court concluded

that the plaintiffs’ actions were protected by the First Amendment, reasoning as follows:

              The plaintiffs intended to protest mindless consumerism when
              they dressed in zombie costumes, walked erratically, and
              broadcasted anti-consumerism statements over a makeshift,
              portable sound system. Moreover, under the surrounding
              circumstances, the likelihood was great that the plaintiffs’
              artistic and symbolic message would be understood by those
              who viewed the protest. . . . We acknowledge that, in some
              instances, it may be possible to separate a speaker’s protected
              speech and expressive conduct from his unprotected, non-
              expressive conduct. However, under the facts in this case, “we
              cannot find a way to logically do so” because, like the
              defendant’s conduct in Machholz, the plaintiffs’ costumes,
              music, statements, and erratic walking were “inextricably
              linked” to their anti-consumerism message.

Id. at 477 (quoting Machholz, 574 N.W.2d at 421).

       And in Peter, we determined that criminal defendants’ conduct in loudly chanting,

shrieking, yelling, and “directing some statements to individuals” while standing outside a

fur and leather store in downtown Minneapolis was “inextricably intertwined” with their



                                             8
protected message regarding animal rights. 798 N.W.2d at 553-54, 556. We cited Machholz

and Baribeau in support and stated that “we do not believe that appellants’ conduct . . . can

be separated from their protected speech, particularly in this case involving political

protest.” Id. at 555-56. We therefore concluded that the defendants’ actions could not

support their disorderly-conduct convictions. Id. at 557.

       Both Baribeau and Peter distinguished T.L.S. by labeling as “non-expressive” the

speech-delivery conduct at issue in that case—that is, a former student’s shouting of

profanities and shrieking during an interaction with school administrators and uniformed

police officers in a high school. T.L.S., 713 N.W.2d at 879; see Baribeau, 596 F.3d at 478

(“Simply put, the court in T.L.S. was able to separate the girl’s protected speech from her

non-expressive shrieking. Given that non-expressive conduct is not afforded First

Amendment protection, [S.L.J.’s] narrowing construction did not apply to such conduct.”);

Peter, 798 N.W.2d at 556 (stating that “[t]he conduct in T.L.S. was non-expressive conduct

unrelated to any substantive message”). The Baribeau dissent countered thusly:

                     The majority mischaracterizes T.L.S. as establishing
              only that the disorderly conduct statute may be applied to
              “boisterous and noisy non-expressive conduct.” The decision
              of the Minnesota Court of Appeals was not so limited. Rather,
              the court explained that even where a person is engaged in
              expressive conduct or speech, it is constitutional to prohibit the
              objectionable manner in which that expression is
              communicated: “[T]he disorderly shouting of otherwise
              protected speech or engaging in other ‘boisterous or noisy
              conduct’ may still trigger punishment under the statute without
              offending the First Amendment.” No narrowing construction
              was necessary, the court concluded, because “it is not the
              speech itself that triggers punishment; the statute may be
              applied to punish the manner of delivery of speech when the
              disorderly nature of the speech does not depend on its content.”


                                              9
596 F.3d at 486-87 (Colloton, J., dissenting in part) (citations omitted).

       In sum, certain authority indicates that the disorderly-conduct statute must not be

read to criminalize conduct with an “inextricable link” to a protected message that the actor

intends to convey and that is likely to be understood by its viewers. See Baribeau, 596 F.3d

at 475-78; Machholz, 574 N.W.2d at 419-22; Peter, 798 N.W.2d at 555-56. Other authority

indicates that the disorderly-conduct statute constitutionally criminalizes speech-delivery

conduct, including the volume at which one speaks and the movements of one’s body as

she speaks, even if the speech and the conduct do not constitute “fighting words.” See

Baribeau, 596 F.3d at 486-87 (Colloton, J., dissenting in part); Hensel, 874 N.W.2d at 252-

53; T.L.S., 713 N.W.2d at 880-81; McCarthy, 659 N.W.2d at 810-11. The Minnesota

Supreme Court may soon provide important guidance here. See State v. Hensel, No. A15-

0005 (Minn. Apr. 19, 2016) (order) (granting further review on relevant issues).

       We resolve the case before us today by assuming without deciding that the S.L.J.

narrowing construction does apply to expressive conduct because, even on that assumption,

a disorderly-conduct conviction may be based on conduct that has no “inextricable link” to

a protected message. See Baribeau, 596 F.3d at 475-78; Machholz, 574 N.W.2d at 419-22;

Peter, 798 N.W.2d at 555-56. Speech-delivery conduct like the volume at which one speaks

and the movements of one’s body as she speaks may have an “inextricable link” to a

protected message conveyed in an artistic or symbolic fashion, see Baribeau, 596 F.3d at

475-78, or it may have an “inextricable link” to a protected message conveyed through

political protest in a public place, see Machholz, 574 N.W.2d at 419-22; Peter, 798 N.W.2d



                                             10
at 555-56. But the volume at which one speaks and the movements of one’s body as she

speaks have no “inextricable link” to a protected message if the volume and movements

are “unrelated to any substantive message” conveyed by the speech in its context. See

Peter, 798 N.W.2d at 556 (explaining that T.L.S. “involved a juvenile who was loudly

shrieking[] [and] screaming profanities in a school building” and stating that such conduct

was “unrelated to any substantive message” otherwise conveyed by the juvenile’s speech).

       In this case, Benjamin was convicted of disorderly conduct based on her actions in

a government office during normal business hours on a weekday. Benjamin’s actions were

a mix of speech and speech-delivery conduct, which conduct included the following:

“shriek[ing],” using a “sharp” voice, “yelling,” “screaming,” “leaning” across the reception

desk until she was “inches” from D.P.’s face and “essentially . . . chest-to-chest” with him,

and “banging” the desk “violently” with her fists. Like the shouting and shrieking at issue

in T.L.S., this speech-delivery conduct was “unrelated to any substantive message”

conveyed by Benjamin’s speech. See id.

       Because Benjamin’s speech-delivery conduct had no “inextricable link” to her

protected message that she disagreed with her exclusion from the hearing, the disorderly-

conduct statute is not overbroad as applied to her. See Baribeau, 596 F.3d at 475-78;

Machholz, 574 N.W.2d at 419-22; Peter, 798 N.W.2d at 555-56. Thus, even if Benjamin’s

speech and speech-delivery conduct did not constitute “fighting words,” we must affirm

her disorderly-conduct conviction if it is supported by sufficient evidence that Benjamin

(1) “engage[d] in offensive, obscene, abusive, boisterous, or noisy conduct,” (2) “in a

public or private place,” (3) “knowing, or having reasonable grounds to know that it


                                             11
[would], or [would] tend to, alarm, anger or disturb others or provoke an assault or breach

of the peace.” Minn. Stat. § 609.72, subd. 1.

       Benjamin does not contest the sufficiency of the evidence to prove these elements.

In any event, “viewing the evidence presented in the light most favorable to the verdict,

and assuming that the fact-finder disbelieved any evidence that conflicted with the verdict,”

we conclude that the evidence is sufficient in this case because the above-described

“circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.” See State v. Barshaw, 879 N.W.2d 356, 363 (Minn. 2016)

(quotations omitted) (describing standard of review for sufficiency of circumstantial

evidence).

       Benjamin also argues that the district court committed reversible error when

instructing the jury as follows:

                      The elements of Disorderly Conduct are, first, the
              defendant engaged in offensive, obscene, abusive, boisterous
              or noisy conduct or in offensive, obscene or abusive language
              tending reasonably to arouse alarm, anger or resentment in
              others. If you find that the defendant’s conduct consisted only
              of offensive, obscene or abusive language, you must also find
              that the words were fighting words.

The challenged instruction went on to define “fighting words” and describe the remaining

elements of disorderly conduct, but it did not indicate to the jury that a disorderly-conduct

conviction may not be based on “offensive, obscene, abusive, boisterous or noisy conduct”

that is “inextricably linked” to a protected message that the actor intends to convey and

that is likely to be understood by its viewers. According to Benjamin, “[t]his instruction




                                             12
clearly instruct[ed] the jury to go through the ‘fighting words’ analysis only if it found Ms.

Benjamin’s actions were pure speech,” and “[t]his [wa]s wrong.”

       Benjamin and the state agree that Benjamin did not object below to the challenged

instruction and that we therefore should apply the plain-error standard on our review of

that instruction. On plain-error review, “[a] defendant must show (1) an error, (2) that the

error was plain, and (3) that the error impacted the defendant’s substantial rights.” State v.

Chavez-Nelson, 882 N.W.2d 579, 589 (Minn. 2016). Even if the defendant shows a plain

error that impacted her substantial rights, that error is grounds for reversal only if “required

to ensure the fairness and integrity of the judicial process.” State v. Horst, 880 N.W.2d 24,

38 (Minn. 2016).

       We again assume without deciding that the S.L.J. narrowing construction applies to

expressive conduct. We also assume without deciding that the question whether conduct is

expressive is a question of fact for the jury. 1 On these assumptions, we agree with Benjamin



1
  However, we note the existence of authority suggesting otherwise. See, e.g., Dennis v.
United States, 341 U.S. 494, 513, 71 S. Ct. 857, 869 (1951) (“When facts are found that
establish the violation of a statute, the protection against conviction afforded by the First
Amendment is a matter of law. . . . The guilt is established by proof of facts. Whether the
First Amendment protects the activity which constitutes the violation of the statute must
depend upon a judicial determination of the scope of the First Amendment applied to the
circumstances of the case.”); Burris v. Willis Indep. Sch. Dist., Inc., 713 F.2d 1087, 1094
(5th Cir. 1983) (“The question whether specific conduct or speech is protected by the first
amendment is ultimately a question of law.”); Ruff v. Long, 111 F. Supp. 3d 639, 645 (E.D.
Pa. 2015) (stating that question whether plaintiff’s actions constituted expressive conduct
was “a threshold question of law” on First Amendment retaliation claim); Jones v. Hamic,
875 F. Supp. 2d 1334, 1357 (M.D. Ala. 2012) (stating that “[t]he threshold question—
whether the First Amendment protects the plaintiff’s conduct—is a question of law for the
court to decide” on First Amendment association claim), aff’d sub nom. Jones v. Ward, 514
F. App’x 843 (11th Cir. 2013).

                                              13
that the jury should have been instructed that the “fighting words” limitation applies both

to speech and to expressive conduct. Nevertheless, we conclude that any instructional error

was not plain because of the split in authority detailed above. See State v. Sanchez-Sanchez,

879 N.W.2d 324, 330 (Minn. 2016) (stating that “[a] plain error is an error that is clear or

obvious at the time of appeal,” in that “it contravenes case law, a rule, or a standard of

conduct.” (quotations omitted)). We proceed no further in our plain-error review. See State

v. Brown, 815 N.W.2d 609, 620 (Minn. 2012) (“If we conclude that any prong of the plain

error analysis is not satisfied, we need not consider the other prongs.”).

       Affirmed.




                                             14
