State of Minnesota, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0323

State of Minnesota,
Appellant,

vs.

John Joseph Jorgenson,
Respondent.

Filed October 7, 2019
Affirmed
Bratvold, Judge

Olmsted County District Court
File No. 55-CR-18-4564

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Senior Assistant County
Attorney, Rochester, Minnesota (for appellant)

David L. Liebow, Godwin Dold, Rochester, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
S Y L L A B U S
Minn. Stat. § 609.27, subd. 1(4) (2016), which is part of Minnesota’s criminal
coercion statute, is facially unconstitutional under the First Amendment because it restricts
free speech, is substantially overbroad, and is not reasonably susceptible to a narrowing
construction or severance of unconstitutional provisions.
2
O P I N I O N
BRATVOLD, Judge
The state challenges the district court’s pretrial dismissal of its complaint against
respondent John Joseph Jorgenson. The district court determined that the charging statute,
Minn. Stat. § 609.27, subd. 1(4) (2016), is unconstitutional on its face because it prohibits
a substantial amount of constitutionally protected speech and cannot be narrowed by
judicial construction. We affirm.
FACTS
The state’s complaint alleged the following facts: Jorgenson and J.C. were in a
romantic relationship and lived together on J.C.’s property. J.C. ended the relationship in
the fall of 2016 and was “in the process” of evicting Jorgenson at the time Jorgenson made
phone calls to J.C.’s father. J.C.’s father contacted law enforcement and complained that
Jorgenson called him multiple times, stating that he wanted $25,000 to not release a video
of J.C. “talking about smoking marijuana.” Jorgenson allegedly threatened to release the
video to the Minnesota Department of Human Services and J.C.’s employer.1
The state charged Jorgenson with one count of attempted coercion under Minn. Stat.
§ 609.275 (2016), with reference to Minn. Stat. § 609.27, subd. 1(4). Specifically, the
complaint alleged that Jorgenson had unlawfully made “a threat to expose a secret or

1 In his motion to dismiss, Jorgenson asserted that he and J.C. had a “real property” dispute
about a debt he incurred while living on her property. In the probable-cause statement,
police reported that J.C.’s father had “offered” Jorgenson $20,000 “to walk away from his
claim of ownership” and that Jorgenson declined the offer.
3
deformity, publish a defamatory statement, or otherwise to expose any person to disgrace
or ridicule, but failed to cause the intend[ed] act or forbearance.”
Jorgenson moved to dismiss on two grounds: (1) lack of probable cause that he had
violated the statute, and (2) Minn. Stat. § 609.27, subd. 1(4), is unconstitutionally
overbroad in violation of the First Amendment to the United States Constitution and
article I, section 3 of the Minnesota Constitution. The state filed a memorandum in
opposition, and initially agreed that the First Amendment is implicated by Jorgenson’s
facial challenge. But the state also argued that the statute prohibits specific conduct, is not
unconstitutionally overbroad, and, alternatively, could be narrowed by construing the
statute to proscribe onl y “unlawful” threats by requiring a “lack of nexus between the
underlying claim and the threat.”
In February 2019, the district court issued an order denying Jorgenson’s motion to
dismiss for lack of probable cause, but granting the motion to dismiss “on the basis that the
charging statute is unconstitutionally overbroad and violative of the First Amendment.”
The district court reasoned that the statutory language is substantially overbroad and “not
reasonably susceptible” to a narrowing construction. The state appeals.
ISSUE
Is Minnesota Statutes section 609.27, subdivision 1(4), an unconstitutional
restriction of free speech under the First Amendment, and if so, is a judicial remedy capable
of saving subdivision 1(4)?
4
ANALYSIS
The state may appeal as of right from “any pretrial order, including probable cause
dismissal orders based on questions of law.” Minn. R. Crim. P. 28.04, subd. 1(1). The state
must show that the district court’s legal error had “a critical impact on the outcome of the
trial.” Id., subd. 2. Here, the district court’s order is appealable because it dismissed the
state’s complaint based on a question of law—the constitutionality of the charging statute.
See State v. Varnado, 582 N.W.2d 886, 889 n.1 (Minn. 1998) (stating that district court’s
dismissal of a criminal complaint against defendant satisfies the critical-impact test). We
review the constitutionality of a statute de novo. State v. McLaughlin, 725 N.W.2d 703,
712 (Minn. 2007).2

2 Although neither party discusses the issue in this appeal, we note that a party challenging
the constitutionality of a statute must give notice to the Minnesota Attorney General where
“neither the state nor any of its agencies, officers, or employees is a party in an official
capacity.” See Minn. R. Civ. P. 5A (where party raises the challenge in district court);
Minn. R. Civ. App. P. 144 (where party raises the challenge in appellate court). Generally,
appellate courts have required strict compliance with these notice requirements. See
Charboneau v. Am. Family Ins. Co., 481 N.W.2d 19 (Minn. 1992).
Here, the record does not establish that Jorgenson served the attorney general with
notice of the constitutional issue while in district court. But the county, which is a political
subdivision, represents the state and served the notice of appeal on the attorney general.
See Minn. R. Crim. P. 28.04, subd. 2(2) (requiring the state to serve the attorney general in
pretrial appeal). And the notice of appeal specifically identifies the constitutional
challenge. Still, the attorney general has never appeared in this case.
In similar circumstances, the supreme court has required separate notice to the
attorney general. See Appeal of Leary, 136 N.W.2d 552, 560 (Minn. 1965) (“[The Attorney
General] cannot be expected to have knowledge of every proceeding in which any
subdivision of the state represented by a county attorney may raise a constitutional issue
as to a statute.”); see also Elwell v. Hennepin County, 221 N.W.2d 538, 544 (Minn. 1974)
(reasoning that the county was not an agent of the state “for this purpose” where the county
challenged constitutionality of statute and failed to give notice to attorney general). Despite
our concern, we do not consider the issue further because the state is a party and did not
raise the issue.
5
I. Minnesota Statutes section 609.27, subdivision 1(4), is an unconstitutional
restriction of free speech under the First Amendment and is not susceptible to
a narrowing construction or severance.

The state argues that the district court erred when it determined that section 609.27,
subdivision 1(4), is unconstitutional. The state contends that the statute “regulates
unprotected speech [and] is presumed to be constitutional.” Jorgenson argues that the
statute is unconstitutional because it applies to a “great deal of constitutionally protected
speech” and cannot be narrowly construed to survive constitutional scrutiny.
The Minnesota Supreme Court has recently summarized the four steps of an
overbreadth challenge. See In re Welfare of A.J.B., 929 N.W.2d 840, 847-48 (Minn. 2019);
see also State v. Hensel, 901 N.W.2d 166, 171-76 (Minn. 2017) (providing the same
general framework). The first step is to interpret “the challenged statute; it is impossible to
determine whether a statute reaches too far without first knowing what the statute covers.”
A.J.B., 929 N.W.2d at 847.
The second step is to determine whether the challenged statute restricts protected
speech or only unprotected speech or expressive conduct. 3 Id. The general rule is that
appellate courts “presume Minnesota statutes are constitutional and will strike down a
statute as unconstitutional only if absolutely necessary.” State v. Johnson, 813 N.W.2d 1, 4
(Minn. 2012). The party challenging the statute has the burden to show that it restricts

3 The United States Supreme Court has provided “several delineated categories” of
unprotected speech, including “speech or expressive conduct designed to ‘incite imminent
lawless action,’ ‘obscenity,’ ‘defamation,’ ‘speech integral to criminal conduct,’ ‘so-called
‘fighting words,’ ‘child pornography,’ ‘fraud,’ ‘true threats,’ and ‘speech presenting some
grave and imminent threat the government has the power to prevent.’” A.J.B., 929 N.W.2d
at 846 (quoting United States v. Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 2544 (2012)).
6
protected speech. See id. (“The party challenging the constitutionality of a statute must
demonstrate beyond a reasonable doubt that the statute violates a constitutional
provision.”); McLaughlin, 725 N.W.2d at 712 (“A party who challenges a statute’s
constitutionality bears the burden of proving that the statute is unconstitutional beyond a
reasonable doubt.”).
If a court determines that the challenged statute restricts protected speech, then it
proceeds to the third step, which is “the core overbreadth inquiry: Does the statute prohibit
a substantial amount of constitutionally protected speech?” A.J.B., 929 N.W.2d at 847
(quotation omitted). At this stage, appellate courts no longer presume that the statute is
constitutional. See State by Humphrey v. Casino Mktg. Grp., Inc., 491 N.W.2d 882, 885
(Minn. 1992); see also State v. Stockwell, 770 N.W.2d 533, 537 (Minn. App. 2009) (“[A]
statute which restricts First Amendment rights is not presumed constitutional.”). Appellate
courts must ask “whether the protected speech and expressive conduct make up a
substantial proportion of the behavior the statute prohibits compared with conduct and
speech that are unprotected and may be legitimately criminalized.” A.J.B., 929 N.W.2d at
847. A statute “is not substantially overbroad merely because one can conceive of some
impermissible applications.” Id. at 847-48 (quotation omitted).
If the challenged statute “prohibits a substantial amount of protected speech,” the
last inquiry is whether the judiciary can remedy the constitutional defects by “applying a
narrowing construction or severing problematic language from the statute.” Id. at 848.
If a court cannot save a statute with a narrowing construction or by severing language, the
7
“remaining option is to invalidate the statute.” Id. The analysis below proceeds with the
steps described above.
A. Steps one and two: The plain language of section 609.27, subdivision
1(4), is not ambiguous and restricts protected speech.

Statutory interpretation raises a question of law that this court reviews de novo. State
v. Henderson, 907 N.W.2d 623, 625 (Minn. 2018). The goal of statutory interpretation is
to “effectuate the intent of the Legislature.” Id. Appellate courts “read a statute as a whole
and give effect to all of its provisions.” Id. When interpreting a statute, we consider whether
the statute’s language is ambiguous. Id. A statute is ambiguous if it is susceptible to more
than one reasonable interpretation. Id.
We start with the statutory language. The state charged Jorgenson with attempted
coercion under Minn. Stat. § 609.275, which provides that “[w]hoever makes a threat
within the meaning of section 609.27, subdivision 1, clauses (1) to (6), but fails to cause
the intended act or forbearance, commits an attempt to coerce.” 4 Minn. Stat. § 609.27,
subd. 1, prohibits coercive threats, which it defines in six clauses, the fourth of which is
relevant to this appeal.

4 The state argues in its brief to this court that “the district court dismissed [Jorgenson’s]
complaint based on the erroneous belief that [Jorgenson] was charged under Minnesota
Statutes Section 609.27.” The state contends that the district court “analyzed the wrong
statutory section.” The state recognizes, however, that “section 609.275 incorporates the
definitions of 609.27.” Given the statutory framework, the district court did not err by
dismissing the state’s complaint after it determined that section 609.27, subdivisi on 1(4),
is unconstitutionally overbroad.
8
Whoever orally or in writing makes any of the following
threats and thereby causes another against the other’s will to
do any act or forbear doing a lawful act is guilty of
coercion . . . .
(4) a threat to expose a secret or deformity, publish a
defamatory statement, or otherwise to expose any person to
disgrace or ridicule.

Minn. Stat. § 609.27, subd. 1(4).
Subdivision 1(4) does not define the terms “threat ,” “secret ,” “disgrace,”
“deformity,” or “ridicule.” Accordingly, we consider the “obvious” or common meaning
of these words. State v. Iverson, 664 N.W.2d 346, 351 (Minn. 2003); Minn. Stat. § 645.08
(2018) (“[W]ords and phrases are construed according to rules of grammar and according
to their common and approved usage . . . .”). Black’s Law Dictionary defines a “threat” as:
“A communicated inte nt to inflict harm or loss on another or on another’s property, esp.
one that might diminish a person’s freedom to act voluntarily or with lawful consent.”
Black’s Law Dictionary 1708 (10th ed. 2014). Another definition of “threat” is “an
expression of an intention to inflict pain, harm, or punishment.” The American Heritage
Dictionary of the English Language 1813 (5th ed. 2011). A “secret” is something “[ k]ept
hidden from knowledge or view; concealed.” Id. at 1583; see also Black’s Law Dictionary,
supra, at 1556 (defining “secret” as “[s]omething that is kept from the knowledge of others
or shared only with those concerned; something that is studiously concealed”). A
“deformity” is “[a] bodily malformation, distortion, or disfigurement.” American Heritage,
supra, at 477. “Disgrace” is the “[l]oss of honor, respect, or reputation; shame.” Id. at 517.
“Ridicule” is “[t]he act of using words, gestures, images, or other products of expression
to evoke laughter or contemptuous feelings regarding a person or thing.” Id. at 1509.
9
Here, neither party contends that subdivision 1(4) is ambiguous. We agree that its
language is plain and not ambiguous. If we read subdivision 1(4) along with the common
definitions mentioned above, we conclude that the statute criminalizes threats to expose
something hidden, malformed, or defamatory that “otherwise” exposes “any person” to
shame or contempt, and thereby cause another against their will to do “any act” or forbear
a “lawful” act. Still, t he state argues “the statute is drafted narrowly ” because it limits
“prohibited speech to demands for money to prevent the exposure of a defect or other
unsavory attribute that will result in shame and damage to one’s reputation.” We agree, in
part, but disagree that subdivision 1(4) is narrow.
The state is correct that subdivision 1(4) prohibits threats to extort because a threat
to expose a secret or deformity and thereby cause “another against the other’s will to do
any act” may include a demand for money or property in exchange for keeping a secret.
Extortion is unprotected speech because it is “speech integral to criminal conduct”—using
threats unlawfully to take someone’s property. See United States v. Hobgood, 868 F.3d
744, 746 (8th Cir. 2017); see also Seals v. McBee, 898 F.3d 587, 597 n.25 (5th Cir. 2018)
(“Core criminal speech such as extortion, bribery, or perjury has no First Amendment
protection.”). Subdivision 1(4) also criminalizes a threat to defame, which is unprotected
speech. See A.J.B., 929 N.W.2d at 846.
But subdivision 1(4) is not limited to threats to extort or defame because it does not
criminalize only a demand for money or property, nor does it require that the threatened
disclosure be false information. Instead, subdivision 1(4) broadly criminalizes any threat

10
to expose a secret or deformity “that causes another against the other’s will to do any act
or forbear doing a lawful act.” Minn. Stat. § 609.27, subd. 1 (emphasis added). Subdivision
1(4) thus criminalizes threats that do not extort money or property and threats to reveal
information that is not defamatory so long as the threat demands a lawful or unlawful act
or the forbearance of a lawful act.
With the expansive and unambiguous language of subdivision 1(4) in mind, we
agree with the district court that some constitutionally protected private and public speech
is criminalized by subdivision 1(4). 5 The breadth of the threats proscribed by subdivision
1(4) is troubling because, for example, it would prohibit a former classmate or co worker
from privately threatening to disclose to the media an elected official’s embarrassing past
if the official does not resign from public office. See State v. Robertson, 649 P.2d 569, 580
(Or. 1982) (discussing the constitutionality of a similar criminal coercion statute).
Subdivision 1(4) would also criminalize a prosecutor’s attempt to induce a defendant to
plead guilty in exchange for not filing charges on an unrelated incident. See id. In these
examples, the former classmate, former coworker, and the prosecutor would be threatening
to expose a secret or otherwise “expose [a] person to disgrace or ridicule” in order to
“cause[] another against the other’s will to do any act or forbear doing a lawful act.”

5 Generally, speech that is privately communicated on a public concern is protected under
the First Amendment. See Rankin v. McPherson, 483 U.S. 378, 388- 89, 107 S. Ct. 2891,
2899-2900 (1987) (holding that speech privately communicated to a coworker on a public
concern was constitutionally protected).
11
See Minn. Stat. § 609.27, subd. 1(4). Thus, we conclude that subdivision 1(4) restricts at
least some constitutionally protected speech.6
B. Step three: Section 609.27, subdivision 1(4), prohibits a substantial
amount of constitutionally protected speech.

“[T]he core overbreadth inquiry” is whether the statute prohibits “a substantial
amount of constitutionally protected speech.” A.J.B., 929 N.W.2d at 847. The district court
discussed several appellate opinions from other jurisdictions that struck down statutes
similar to subdivision 1(4). The most apposite case is from Oregon, which had a statute
similar to Minnesota’s coercion statute. See Robertson, 649 P.2d at 569.
In Robertson, the state indicted defendants under a state coercion statute, and
defendants argued that the statute was too vague for a penal law and also restricted freedom

6 Subdivision 1(4) does not sweep as broadly as Jorgenson contends. Jorgenson suggests
that exposing secrets to the public to coerce behavior “would fall well within what [the
coercion statute would] prohibit.” He cites two United States Supreme Court opinions in
support of this assertion. See N.A.A.C.P. v. Claiborne Hardware Co. , 458 U.S. 886, 909,
102 S. Ct. 3409, 3423 (1982) (holding that attempts to coerce individuals into action by
publicly exposing non participants in a boycott was protected speech); Org. for a Better
Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 1577-78 (1971) (holding that the public
distribution of pamphlets exposing a business practice to coerce change is protected
speech).
We disagree. In speech that directly exposes a secret to the public without a promise
to maintain a secret, such as when the media publishes a political candidate’s secret or a
political interest group publicly criticizes a private business’s investment strategy, there is
no “threat.” Instead, the secret is exposed to the public to influence the behavior of a
political candidate, voters, or a business. Therefore, subdivision 1(4) does not criminalize
constitutionally protected boycotting or pamp hleting, as discussed in prior United States
Supreme Court cases.
12
of speech. Id. at 571, 577.7 The trial court determined that the statute was unconstitutionally
vague, but the court of appeals reversed and upheld the statute in two divided opinions,
first in a panel decision, and later en banc. Id. at 571. The state supreme court reversed,
reasoning that the statute was unconstitutionally overbroad. Id. at 589.
The supreme court recognized that the coercion statute’s language covered “all
demands ‘to engage in conduct from which (the addressee) has a legal right to abstain, or
to abstain from engaging in conduct in which he has a legal right to engage.’” Id. Because
the coercion statute prohibited threats to coerce legal conduct, regardless of the parties’
relationship, or the relationship between the threatened disclosure and the coerced conduct,
or whether the demand is made publicly or privately, the supreme court discussed
numerous examples “drawn from politics, journalism, family or academic life” that would
implicate protected speech. Id.8 In sum, the supreme court could not “escape the conclusion

7 The Oregon statute provided:
(1) A person commits the crime of coercion when he
compels or induces another person to engage in conduct from
which he has a legal right to abstain, or to abstain from
engaging in conduct in which he has a legal right to engage, by
means of instilling in him a fear that, if the demand is not
complied with, the actor or another will: . . .
(e) Expose a secret or publicize an asserted fact,
whether true or false, tending to subject some person to hatred,
contempt or ridicule . . . .

Id. at 577 (quoting Or. Rev. Stat. § 163.275).

8 For example, the Oregon Supreme Court in Robertson noted that the coercion statute
prohibits a journalist from telling “a public official that he will disclose private facts
showing an official’s financial interest in a pending measure if the official does not refrain
from voting on the measure.” Id. at 580. The court also observed that someone who
13
that [the challenged statute] as written reaches areas of constitutionally privileged
expression.” Id. The supreme court also concluded it could not save the statute because it
is “a legislative responsibility to narrow and clarify the coverage of a statute so as to
eliminate most apparent applications to free speech or writing.” Id. at 590. Thus, the
Oregon Supreme Court reversed the court of appeals and remanded to enter judgment in
favor of the defendants. Id. at 589-90.9
Other appellate courts have examined statutes with wording sufficiently similar to
Minn. Stat. § 609.27, subd. 1(4), to be instructive. While Minnesota does not have a statute
that specifically criminalizes extortion, other states do, and some extortion statutes have
been scrutinized under the First Amendment. See State v. Weinstein, 898 P.2d 513, 515
(Ariz. Ct. App. 1995); State v. Pauling, 69 P.3d 331, 337 (Wash. 2003). For example, in
Weinstein, the extortion statute was similar to Minnesota’s coercion statute and provided:
“A person commits theft by extortion by knowingly obtaining or seeking to obtain property
or services by means of a threat to . . . [e]xpose a secret or an asserted fact, whether true or
false, tending to subject anyone to hatred, contempt or ridicule or to impair his credit or
business.” 898 P.2d at 515 (quoting Ariz. Rev. Stat. 13-1804(A)(6)).
Weinstein rejected the state’s appeal from the dismissal of an extortion complaint
that alleged respondent had demanded a refund of his security deposit and rent from his

“proposes to disclose an airline pilot’s secret illness if he does not get medical attention”
may violate the coercion statute. Id.

9 The Washington Court of Appeals examined a coercion law similar to the Oregon statute
and held that it was unconstitutionally overbroad and “no judicial reconstruction can save
it.” See City of Seattle v. Ivan, 856 P.2d 1116, 1123 (Wash. Ct. App. 1993).
14
landlord and, if the refund was not provided, threaten ed to file suit and contact the
landlord’s parole officer to disclose violations. Id. at 514. The court of appeals held that
the extortion statute was unconstitutionally overbroad because it “broadly criminalizes
expression protected by the First Amendment,” including claims of right, such as a
customer threatening to report a contractor for “shoddy work” unless the contractor sends
someone to fix the problem, and an attorney threatening a lawsuit by demanding, on behalf
of a client, performance of a contractual duty. Id. at 515, 517. As a result, the court of
appeals affirmed the trial court’s decision. Id. at 517; see also Pauling, 69 P.3d at 337
(holding Washington’s extortion statute is unconstitutional and imposing a limiting
construction because the statute “lack[ed] a requirement that the threat used to obtain the
property or services of another be wrongful”).
In light of the broad language of the statute and persuasive caselaw from other
jurisdictions, we conclude that Minn. Stat. § 609.27, subd. 1 (4), prohibits “a substantial
amount of constitutionally protected speech.” A.J.B., 929 N.W.2d at 860. Subdivision 1(4)
proscribes protected speech as did the laws examined in Robertson, Weinstein, and
Pauling, and the examples of protected speech described in these cases are also proscribed
by subdivision 1(4)’s plain language. Subdivision 1(4) prohibits a significant amount of
protected speech, such as expressions asserting legitimate claims of right, e.g., a consumer
threatening to write a bad review for a defective product unless she receives a remedy, and
expressions attempting to correct a wrong in priva te, e.g., an employee privately
15
communicating that she will publicly expose her employer’s tolerance of sexual
harassment unless the employer changes its policy.10
C. Step four: This court must invalidate section 609.27, subdivision 1(4),
because no narrowing construction is available and severance cannot
save the statute.

The Minnesota Supreme Court has recognized two judicial remedies for an
unconstitutional statute. See A.J.B., 929 N.W.2d at 848. First, if the constitutionality of a
statute can “turn upon a choice between one or several alternative meanings,” it is
susceptible to a limiting construction. City of Houston v. Hill, 482 U.S. 451, 468, 107 S. Ct.
2502, 2513 (1987). In limiting the construction of a statute, appellate courts “remain bound
by legislative words and intent and cannot rewrite the statute to make it

10 A common theme in Robertson, Weinstein, and Pauling is that the challenged law did
not include an affirmative defense for constitutionally protected speech. Likewise,
subdivision 1(4) does not include an affirmative defense for constitutionally protected
speech. Although we do not endorse any particular statutory scheme, we acknowledge, as
the court in Robertson did, that the Model Penal Code narrows the crime of coercion by
incorporating an affirmative defense. See Robertson, 649 P.2d at 590 (citing Model Penal
Code § 212.5). The Model Penal Code’s “criminal coercion” section provides an
affirmative defense when an actor seeks to compel others “to behave in a way reasonably
related to the circumstances which were the subject of the accusation,” such as “making
good a wrong done” or “refraining from taking any action or responsibility for which the
actor believes the other is disqualified.” Model Penal Code § 212.5. Many states with
criminal coercion statutes have adopted the Model Penal Code’s approach, or something
similar to it, in drafting their statutes. See, e.g., Alaska Stat. Ann. § 11.41.530 (2018);
Conn. Gen. Stat. § 53a -192 (2019); Del. Code Ann. tit. 11, § 792 (2015); Ky. Rev. Stat.
Ann. § 509.080 (2014); N.J. Stat. Ann. § 2C:13-5 (2009); N.Y. Penal Law § 135.75 (2019);
N.D. Cent. Code Ann. § 12.1-17- 06 (2017); Ohio Rev. Code Ann. § 2905.12 (2015); 18
Pa. Cons. Stat. Ann. § 2906 (2015).
16
constitutional.” A.J.B., 929 N.W.2d at 848. When the language of a statute is “plain and its
meaning unambiguous,” a statute is not susceptible to a limiting construction. Hill,
482 U.S. at 468, 107 S. Ct. at 2513.
Second, appellate courts have broad power to sever unconstitutional language from
a statute, but not to rewrite the statute. A.J.B., 929 N.W.2d at 848. Our primary goal in
severing language is to “effectuate the intent of the legislature had it known that a provision
of the law was invalid.” Id. Appellate courts “attempt to retain as much of the original
statute as possible while striking the portions that render the statute unconstitutional.” State
v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014). Generally, we presume that we can
sever problematic language from a statute unless the legislature indicates otherwise. Id.
Caselaw recognizes two exceptions. First, we cannot sever statutory language if the valid
provisions are “inseparably connected with, and so dependent upon, the void provisions.”
Id. Second, we cannot sever statutory language if the valid provisions are incomplete and
can no longer fulfill the legislative intent. Id.; see also Minn. Stat. § 645.20 (2018)
(providing when statutes are severable).
The state argues that if we determine that Minn. Stat. § 609.27, subd. 1(4) ,
unconstitutionally restricts a significant amount of protected speech, then we should
remedy the statute and not invalidate subdivision 1(4). First, the state argues that we could
narrowly construe subdivision 1(4) so that it only reaches “those threats that cause . . . the
victim to make payment or surrender other tangible property subject to pecuniary
measurement.” Second, the state contends that we “could construe [subdivision 1(4)] to

17
reach only threats of exposure that are similar to the threat of defamation,” such as libel.
Third, the state argues that we could sever two of the threats described in subdivision 1(4)
and prohibit only threats of defamation.
The state’s first suggestion that we could limit subdivision 1(4) to prohibit only
extortion would require this court to rewrite the plain language of the statute, which is not
limited to threats demanding money or property. Because subdivision 1(4) applies broadly
to threats “to do any act or forbear doing a lawful act,” the state’s suggestion means we
would have to sever this language and add new language. See Minn. Stat. § 609.27, subd.
1(4) (emphasis added). But the judicial remedy of a narrowing construction does not apply
when, as here, a statute is unambiguous and, moreover, the remedy requires the court to
add language, which we will not do. See A.J.B., 929 N.W.2d at 848; Hill, 482 U.S. at 468,
107 S. Ct. at 2513.
Moreover, the state’s suggestion appears to be contrary to the legislature’s intent.
The sentencing provision for subdivision 1(4) provides the maximum sentence of 90 days
if “the benefits received or harm sustained are not susceptible of pecuniary measurement.”
Minn. Stat. § 609.27, subd. 2 (2016) (emphasis added). This language indicates that the
legislature intended to punish threats even when no pecuniary benefit or harm resulted. In
short, we conclude that, because the plain language of subdivision 1(4) does not refer to
threats to extort, the state’s first suggestion is not a narrowing construction and, therefore,
not a permissible judicial remedy.11

11 Notably, Minnesota previously had an extortion statute, which specifically referred to
“obtaining . . . property from another with his consent induced by a wrongful use of force
18
The state’s second suggestion to limit Minn. Stat. § 609.27, subd. 1(4), to unlawful
threats similar to defamation, such as libel, would also require this court to sever some
statutory terms and add new terms to subdivision 1(4). We reject the state’s second
suggestion because subdivision 1(4) is not ambiguous and the subtraction or addition of
statutory terms is not the same as a narrowing construction.
The state argued to the district court that it should narrowly construe subdivision
1(4) by adding the word “unlawful” before “threat to expose.” While the state does not
make this suggestion on appeal, we note that if the legislature had intended to proscribe
only unlawful threats, it knew how to do so. Clauses 1, 2, and 3 of Minn. Stat. § 609.27,
subd. 1, which respectively refer to threats to inflict bodily harm, threats to damage
property, and threats to injure a trade, business, profession, or calling, all use the word
“unlawfully.” When the legislature omitted this word in the very next clause—subdivision
1(4)—it implicitly rejected criminalizing only threats to unlawfully expose secrets or other
information that could subject a person to disgrace or ridicule. See Gen. Mills, Inc. v.

or fear or under color of official right.” See Minn. Stat. § 621.14 (1961). In 1961, Minnesota
also had separate statutes for blackmail, coercion, and threatening to publish libel.
See Minn. Stat. §§ 621.18 (blackmail), .56 (coercion), .58 (threatening to publish libel).
The legislature repealed all of these statutes when it enacted the criminal code of
1963. See 1963 Minn. Laws ch. 753, at 1185 (listing the repealed statutes in the header).
The criminal code replaced these statutes with only a coercion statute that is very similar
to the one used to charge Jorgenson. See 1963 Minn. Laws ch. 753, art. I, at 1204- 05
(codified at Minn. Stat. § 609.27 (1965)). Although we do not rely on this legislative
history to determine the meaning of Minn. Stat. § 609.27, the history of this statute
confirms our understanding that the legislature intended to criminalize coercion and not
just extortion. We also note that despite significant changes in First Amendment law over
the past 50 years, the Minnesota Legislature has not substantially revised the coercion
statute since it was enacted in 1963.
19
Comm’r of Revenue, 9 31 N.W.2d 791, 800 (Minn. 2019) (“When the Legislature uses
limiting or modifying language in one part of a statute, but omits it in another, we regard
that omission as intentional and will not add those same words of limitation or modification
to parts of the statute where they were not used.”). Accordingly, we cannot narrowly
construe subdivision 1(4) to criminalize only unlawful conduct.12
The state’s last suggestion is to sever language from subdivision 1(4) so that it
criminalizes only threats to defame. Subdivision 1(4) proscribes threats to “publish a
defamatory statement,” which is unprotected speech, but it also refers to “a threat to expose
a secret or deformity . . . or otherwise to expose any person to disgrace or ridicule.” Minn.
Stat. § 609.27, subd. 1(4). Severing the language prohibiting the other two threats and
leaving the language proscribing “a threat to . . . publish a defamatory statement” would
require us to strike most of subdivision 1(4).
We do not believe that, had the legislature known about the constitutional infirmity
of subdivision 1(4), it would have criminalized only defamatory statements. See A.J.B.,
929 N.W.2d at 848. Other options existed , such as drafting an affirmative defense of

12 Although the state does not raise this argument, another possibility for a narrowing
construction is to limit subdivision 1(4) to “true threats.” The United States Supreme Court
has held that “true threats” are unprotected speech and “encompass those statements where
the speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 1548 (2003). This suggestion is similar to adding
“unlawful” to the statute, and we reject it because it requires that we sever threats to expose
secrets or deformities, which the legislature expressly criminalized. We conclude
subdivision 1(4) cannot be narrowly construed as limited to threats of violence. See Ivan,
856 P.2d at 1118 n.3 (examining a similar coercion law and determining that the statute is
“far broader” than true threats).
20
protected speech similar to the Model Penal Code. 13 The state does not ask us to engraft
affirmative defense language, undoubtedly because adding new language to subdivision
1(4) is beyond this court’s authority. Id.
Because we are unable to adopt a judicial remedy that saves Minn. S tat. § 609.27,
subd. 1(4), we conclude that the only “remaining option is to invalidate the statute.” Id.
Accordingly, we hold that Minn. Stat. § 609.27, subd. 1(4), is facially overbroad under the
First Amendment.
D E C I S I O N
Minn. Stat. § 609.27, subd. 1(4), is unconstitutional on its face because it proscribes
a substantial amount of protected speech. Because subdivision 1(4) unambiguously
restricts protected speech that is not extortion or defamation, no limiting construction is
available to criminalize only unprotected speech. Alternatively, severing all language in
subdivision 1(4), except for threats to make defamatory statements, is inconsistent with the
legislature’s intent to criminalize nondefamatory conduct . Accordingly, the district court
properly concluded that it must grant Jorgenson’s motion to dismiss the state’s complaint
and invalidate subdivision 1(4).
Affirmed.

13 The relevant coercion provision in the Model Penal Code was adopted in 1962. See
Schumann v. McGinn, 240 N.W.2d 525, 535 (Minn. 1976) (recognizing that the Model
Penal Code was “promulgated in 1962”); see also Model Penal Code § 212.5 (Am. Law
Inst., Official Draft 1962). As discussed supra note 11, Minnesota adopted its coercion
statute in 1963.