1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0323

Court of Appeals Lillehaug, J.
Dissenting, Gildea, C.J.
State of Minnesota,

Appellant,

vs. Filed: July 22, 2020
O f f i c e o f A p p e l l a t e C o u r t s
John Joseph Jorgenson,

R e s p o n d e n t .
________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

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

David L. Liebow, James A. Godwin, Godwin Dold, Rochester, Minnesota, for respondent.

Travis J. Smith, Murray Co unty Attorney, Slayton, Minnesota, for amicus curiae
Minnesota County Attorneys Association.
________________________

S Y L L A B U S

On its face, Minnesota Statutes § 609.2 7, subd. 1(4) (2018), which prohibits any
written or oral “threat to expose a secret or deformity, publish a defamatory statement, or
otherwise to expose any person to disgrace or ridicule,” vi olates the First Amendment to
the United States Constitution be cause it criminalizes a substa ntial amount of protected
speech and cannot be saved by a narrowing construction or severance.
2
Affirmed.
O P I N I O N

LILLEHAUG, Justice.

We are asked to decide whether a subdivi sion of the Minnesota criminal coercion
statute, Minnesota Statutes § 609.27 (2018), is unconstitutional on its face under the First
Amendment to the United States Constitution. The district court and the court of appeals
held that subdivision 1(4) was unconstitutionally overbroad and could not be saved through a
narrowing construction or by severing part of it. We agree and therefore affirm.
FACTS
In the fall of 2016, John Jorgenson was living with his girlfriend, J.C., in her home
in Claremont. J.C. ended their relationship a nd sought to evict Jorgenson. Around that
time, Jorgenson began making threatening calls to, and leaving voicemails for R.C., the
father of J.C.
According to R.C., Jorgenso n called eighteen times, and left twelve voicemails.
Among other things, Jorgenson threatened to release a video of J.C. talking about smoking
marijuana unless R.C. paid Jorgenson $25,000. Jorgenson threatened to release the video
to various entities, includin g the Minnesota Department of Human Services, J.C.’s
employer, and J.C.’s professional licensing board.
3
After R.C. reported the threats to law en forcement, Jorgenson was charged in Dodge
County with one count of attempted coercion. 1 Jorgenson filed a successful motion to
dismiss for lack of jurisdiction.
Jorgenson was then charged with one felony count of attempted coercion in Olmsted
County. He again filed a motion to dismiss, this time based on tw o theories: lack of
probable cause that he had vi olated the coercion statute, a nd that the statute was overly
broad in violation of the First Amendment to the United States Constitution and Article I,
Section 3 of the Minnesota Constitution.
The district court denied Jorgenson’s moti on to dismiss based on probable cause,
and granted the motion based on the First Amendment. The State appealed. The court of
appeals affirmed the district court. State v. Jorgenson, 934 N.W.2d 362, 366 (Minn. App.
2019). We granted the State’s petition for fu rther review to decide whether Minnesota
Statutes § 609.27, subd. 1(4), is unconstitutional.
ANALYSIS
Jorgenson asserts that Minnesota Statutes § 609.27, subd. 1(4 ), is unconstitutional
on its face. A defendant, such as Jorgens on, has standing to challenge a statute as
unconstitutionally overbro ad even if the statute, as applied to him, would not be
unconstitutional. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); State v. Machholz,

1 Jorgenson was charged under Minnesota St atutes § 609.275 (2018), the attempted
coercion statute. That statute provides: “W hoever makes a threat w ithin 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 and may be pu nished as provided in section
609.17 [the general attempt statute].” Minn. Stat. § 609.275.
4
574 N.W.2d 415, 419, 421 (Minn. 1998) (hol ding that Minnesota’s felony harassment
statute was unconstitutionally overbroad), superseded by statute as stated in State v. Hall,
887 N.W.2d 847 (Minn. App. 2017). Defendants have standing because prior restraint of
free speech poses a greater harm to society than does the possibility that some unprotected
speech will go unpunished. Broadrick, 413 U.S. at 612.
We review a constitutional challenge de novo. See State v. Hensel , 901 N.W.2d
166, 170 (Minn. 2017). We presume that a statute is constitutional and strike it down only
if absolutely necessary. State v. Behl , 564 N.W.2d 560, 566 (Mi nn. 1997). In the First
Amendment context, however, the State bears the burden to show that a “content-based
restriction” on speech is constitutional. State v. Melchert-Dinkel , 844 N.W.2d 13, 18
(Minn. 2014); see also State by Humphrey v. Casino Mktg. Grp., Inc. , 491 N.W.2d 882,
885–86 (Minn. 1992).
A.
Section 609.27, subdivisi on 1, provides that anyone who “orally or in writing
makes” a “threat” falling into any one of six enumerated categories, and who “thereby
causes another against the other’s will to do any act or forebear doing a lawful act is guilty
of coercion.” Subdivision 1(4), one of the six categories, criminalizes “a threat to expose
a secret or deformity, publish a defamatory st atement, or otherwise to expose any person
to disgrace or ridicule.” Minn. Stat. § 609.27, subd. 1(4). If the threat within the meaning
of section 609.27, subdivision 1, “fails to cause the intended act or forbearance,” it is still
a crime as an “attempt to coerce.” Minn. Stat. § 609.275 (2018).
5
Jorgenson argues that subdivision 1(4) is unconstitutionally overbroad because it
criminalizes a substantial amount of protected speech. The State argues that the statute is
not unconstitutionally overbroad because it only regulates unprotected speech, specifically,
“fighting words,” and, in any event, does not prohibit a substantial amount of protected
speech.
The First Amendment is applied to the st ates through the Fourteenth Amendment,
and provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I, XIV.
2 Under the First Amendment, “government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v.
ACLU, 535 U.S. 564, 573 (2002) (citation omitte d) (internal quotation marks omitted).
The First Amendment also forbids “the G overnment [from] imprison[ing] any speaker
[because] his speech is deemed valueless or unnecessary, or [because] an ad hoc calculus
of cost and benefits tilts in the statute’s favor.” United States v. Stevens, 559 U.S. 460, 471
(2010).
Jorgenson’s argument “is a f acial attack on a statute in which the challenger must
establish that ‘a substantial number of a statute’s applications are unconstitutional, judged
in relation to the statute’s plainly legitimate sweep.’ ” See Hensel, 901 N.W.2d at 170
(quoting Stevens, 559 U.S. at 473). Our method of analysis for a facial challenge, such as
this one, is well-established, and we have applied it often in recent years. See In re Welfare

2 The Minnesota Constitution also c ontains a free speech provision, see Minn. Const.
art. I, § 3, that provides protections co-ext ensive with those un der the United States
Constitution. Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014).
6
of A.J.B., 929 N.W.2d 840, 847–48, 856, 863 (Minn. 2019) (holding that a stalking-by-mail
statute was overbroad but that a mail-harassment statute was not); Hensel, 901 N.W.2d at
170, 181 (holding that the disturbance-of-assembly statute was facially unconstitutional);
State v. Muccio , 890 N.W.2d 914, 928–29 (Minn. 2017) (holding that a statute
criminalizing electronic communication directed at a child that describes sexual conduct
was not facially unconstitutional); State v. Washington-Davis , 881 N.W.2d 531, 537,
540–41 (Minn. 2016) ( holding that a statut e prohibiting solicitati on and promotion of
prostitution was not uncons titutionally overbroad); Melchert-Dinkel, 844 N.W.2d at
18–19, 23–24 (holding that a statute’s pr ovisions prohibiting advising and encouraging
suicide were not narrowly drawn and did not survive strict scrutiny).
We begin our overbreadth analysis by, firs t, interpreting the statute and, second,
determining whether it includes protected speech. See Hensel, 901 N.W.2d at 171–72.
These are our first and second steps because “it is impossible to determine whether a statute
reaches too far without first know ing what the statute covers.” See United States v.
Williams, 553 U.S. 285, 293 (2008).
The statute expressly prohibits both oral and written communications. Minn. Stat.
§ 609.27, subd. 1. Subdivis ion 1(4) “is a content-based regulation of speech because
whether a person may be prosecuted under the statute depends entirely on what the person
says.” See State v. Crawley , 819 N.W.2d 94, 101 (Minn. 2012). Here, “speech is a
statutory element in the defin ition of the offense,” and thus is subject to an overbreadth
attack. See State v. Robertson, 649 P.2d 569, 57 8 (Or. 1982) (analyzing a statute similar
7
to Minnesota’s coercion statute). This content-based regulation of speech sweeps widely,
in several respects.
First, subdivision 1(4) covers “threats,” not just “true threats” unprotected by the
First Amendment. See In re Welfare of A.J.B., 929 N.W.2d at 846 (identifying delineated
categories of speech not protect ed by the First Amendment, including “true threats”). A
threat is “[a] communicated in tent to inflict harm or lo ss on another or on another’s
property.” Threat, Black’s Law Dictionary (10th ed. 2014). A true threat is “where the
speaker means to communicate a serious expre ssion of an intent to commit an act of
unlawful violence to a particular indi vidual or group of individuals.” Virginia v. Black ,
538 U.S. 343, 359 (2003). A true threat may well place “the victim in fear of bodily harm
or death.” Id. at 360. Subdivision 1(4) does no t require that the written or oral
communication seriously express an intent to commit a violent act.
Second, subdivision 1(4) criminalizes a wide range of communications on a variety
of subject matters. A communication is prohibited if it threatens to expose any secret or
deformity, publish any defamatory statement (whether or not tortious), 3 or otherwise

3 A statement may be defamatory but not criminal or tortious. Defamation includes
statements “which tend[] to injure ‘reputation’ in the popular sense; to diminish the esteem,
respect, goodwill or confidence in which plaintiff is held, or to excite adverse, derogatory
or unpleasant feelings against him.” William L. Prosser, The Handbook of the Law of Torts
§ 106 (3d ed. 1964); see also Minn. Stat. § 609.765, subd. 1 (2018) (defining criminal
“[d]efamatory matter” as “anything which exposes a person or a group, class or association
to hatred, contempt, ridicule, degradation or di sgrace in society, or injury to business or
occupation.”). To constitute the crime of defamation or the tort of defamation, additional
elements (including falsity) must be proven. Minn. Stat. § 609.765, subd. 2 (requiring that
the defamatory matter be “false”); Larson v. Gannett Co., 940 N.W.2d 120, 130–31 (Minn.
2020) (stating that the elements for defamation include: “(2) the statement is false.”).
8
expose any person to disgrace or ridicule. The communication is prohibited even if the
secret or deformity is true, the defamatory statement is accurate, or the facts that might lead
to disgrace or ridicule are real.
And the communication is criminal even if the threat itself—or the underlying
information—touches upon a matter of public concern. The broad scope of the statute puts
it in “the realm of social or political conflict where threats . . . may nevertheless be part of
the marketplace of ideas, broadly conceived to embrace the rough competition that is so
much a staple of political discourse.” See United States v. Velasquez, 772 F.2d 1348, 1357
(7th Cir. 1985) (holding constitutional the “limited scope” of the federal statute prohibiting
retaliation against witnesses and informants). As the Oregon Supreme Court noted when
declaring unconstitutional a materially similar coercion law:
[T]he statute makes no distinction whethe r the coercive demands and threats are
addressed by one person to another in a private confrontation or correspondence or
in a more or less public setting designed to inform and perhaps involve others in the
issues posed by the demand and the potential sanction.

Robertson, 649 P.2d at 589.
Third, subdivision 1(4) crim inalizes speech whether th e recipient of the threat
takes—or forebears from—any action in response. Section 609.27, subdivision 1, requires
that the threat “cause[] anothe r against the other’s will to do any act or forbear doing a
lawful act.” But the immediately follo wing statute, section 609.275—under which
Jorgenson was charged—states that any threat outlawed by section 609.27, subdivision 1,
that “fails to cause the intended act or forbearance” is punishable as an attempt to coerce.
9
Finally, subdivision 1(4) criminalizes speech even if the recipient of the threat does
not suffer any pecuniary loss—or any loss at a ll. The crime is causing (or attempting to
cause) another to do an “act” or forebear from an act. As the sentencing provision in
subdivision 2(1) of the statute makes clear, th e harm to the recipient, or the gain to the
violator, may not be “susceptible of pecuniary measurement.” Indeed, the statute contains
no requirement that the maker of the threat intend injury or loss to the recipient. Nor does
the statute require any tangible harm or injury—not even hurt feelings.
We turn next to whether subdivision 1( 4) is limited to regulating unprotected
speech. See In re Welfare of A.J.B. , 929 N.W.2d at 847. “Fir st Amendment protections
are not limitless.” Id. at 846. As already discussed, exceptions to First Amendment
protection generally fall into delineated categories, including “speech integral to criminal
conduct,” “fighting words,” “true threats,” and “speech presenting some grave and
imminent threat the government has the power to prevent.” United States v. Alvarez, 567
U.S. 709, 717 (2012). In those categories, the speech is “of such sli ght 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.” See Chaplinsky v. New Hampshire , 315 U.S. 568,
572 (1942). The United States Supreme Co urt has been reluctant to expand these
traditional categories of unprotected speech. See Stevens, 559 U.S. at 472.
The State argues that subd ivision 1(4) does not regula te any protected speech
because it only regulates fightin g words. Fighting words ar e “those personally abusive
epithets which, when addressed to the ordina ry citizen, are, as a matter of common
10
knowledge, inherently likely to provoke violent reaction .” Cohen v. California, 403 U.S.
15, 20 (1971) (emphasis added).
There is no question that some fighting words are threats, and some threats are
fighting words. But subdivision 1(4) criminalizes s ubstantially more than threats
composed of, or that include, fighting words. It prohibits threats that do not contain
“personally abusive epithets” or are not “inherently likely to provoke violent reaction.” As
to the latter, subdivision 1(4) forbids threat s that are obviously unlikely to provoke
violence, such as those made by electronic means from long distance. It even criminalizes
threats that may have the effect of discouraging violence.
The State’s fighting-words argument is not unfamiliar to us. The State made it in
both Machholz and Hensel. We rejected it then for the same reason we reject it now: the
statute criminalizes more speech than just fighting words. See Hensel, 901 N.W.2d at
176–77; Machholz, 574 N.W.2d at 420–21.
We now move to the next step of the analys is, which is the core overbreadth inquiry.
We must determine whether the statute criminalizes not just some protected speech, but a
“substantial amount” of protected speech. See Matter of Welfare of A.J.B., 929 N.W.2d at
847. To do so, we:
look[] to the conduct that is crimina lized by the statute—some of which is
unprotected speech or conduct and some of which is speech and expressive
conduct protected by the First Amendment—and ask[] whether the protected
speech and expressive conduct make up a substantial proportion of the
behavior the statute prohibits compar ed with conduct and speech that are
unprotected and may be legitimately criminalized.

Id.
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The district court and the court of appeals each aptly identified numerous
hypothetical examples of protected speech criminalized by this statute. We tested some of
those examples, and some of our own, duri ng oral argument. Counsel for the State
conceded that threats such as the following would violate the statute:
 A law student who had been sexually harassed by a professor states: “Professor,
you have a choice; either resign or I w ill report and publicize the fact that you
sexually harassed me.”
 A school bus driver says to a student: “It’s illegal for underage persons to smoke
cigarettes. Give me those smokes or I will tell your parents that you’re
smoking.”
 A woman, seeing a man she knew was a child pornographer and sexual abuser
preparing to move in with her sister and her nieces, promis es: “If you don’t
break up with my sister and leave town, I’ll report what I know to my sister and
the authorities.”
It takes little imagination to come up with a multitude of examples in which a written
or oral demand, including a threat to expose a secret or disgraceful fact, or to say something
that is defamatory but true, is not only protected speech, but is the kind of speech that has
“social value.” Such speech occurs in the worlds of government, business, academia,
sports, and culture. Such speech may well be at the core of matters of public concern. Or
it may occur in another socially valuable setting, family life. See Robertson, 649 P.2d at
589 (“The right of free expression is as im portant to many people in their personal and
institutional relationships as it is in the narrower ‘civil liberties’ related to politics . . . .”).
12
Plainly, subdivision 1(4) criminalizes a substantial amount of protected speech. Minnesota
Statutes § 609.27, subd. 1(4) is thus unconstitutional on its face.
B.
Our final step is to determine whether we can save the statute by construing it
narrowly or severing part of it. In re Welfare of A.J.B., 929 N.W.2d at 848. Our power to
narrow by construction “is limited”; we “remain bound by legislative words and intent and
cannot rewrite the statute to make it constitutional.” Id. Only if a statute is “readily
susceptible” to a narrowing construction can we “adopt such a construction if it remedies
the statute’s constitutional defects.” Hensel, 901 N.W.2d at 175 (citation omitted). “ [T]he
shave-a-little-off-here and thro w-in-a-few-words there statut e . . . may well be a more
sensible statute, but at the end of the day, it bears little resemb lance to the statute that the
Legislature actually passed.” Id. at 180.
Subdivision 1(4) of the coercion statut e, and the related attempt statute which
incorporates it, are not susceptible to a narrowing construction. The State proposes that we
save subdivision 1(4) by interpreting the word “threat” to mean only otherwise unlawful
threats, such as fighting words. To interpret the statute that way, we would have to pencil
in the adjective, “unlawful,” to modify the noun, “threat.” Adding the word “unlawful”
would rewrite the statute. The power to do that is not ours.
It is especially not ours here because the Legislature has made clear that, as used in
subdivision 1(4), the word “threat” encompasses all thr eats, both unlawful and otherwise
lawful. By contrast to subdivision 1(4), paragraphs (1), (2), a nd (3) in subdivision 1
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expressly use the word “unlawful.” 4 By choosing not to use the word “unlawful” in
subdivision 1(4) to describe e ither the threat or th e injury, the Legislature signaled that it
did not intend to prohibit only unlawful threats to expose or publish. We cannot solve the
constitutional problem by transplanting a key word.
We do have “broader authority when it comes to severance.” In re Welfare of A.J.B.,
929 N.W.2d at 848. The goal of severing a st atute is to “effectuate the intent of the
legislature had it known that a provi sion of the law was invalid.” Melchert-Dinkel, 844
N.W.2d at 24 (quoting State v. Shattuck , 704 N.W.2d 131, 143 (M inn. 2005)). But we
cannot sever in two situations. First, we cannot sever if the valid provisions are
“ ‘essentially and inseparably connected with, and so dependent upon, the void provisions’
that the Legislature would not have enact ed the valid provisions without the voided
language.” Id. (quoting Shattuck, 704 N.W.W.2d at 143). Second, we cannot sever if “the
remaining valid provisions, standing alone, are incomplete and incapable of being executed
in accordance with the legislative intent.” Shattuck, 704 N.W.W.2d at 143.
Here, we see no way to sever part of subdiv ision 1(4) to save the rest of it from its
unconstitutional overbreadth. In the court of appeals, the Stat e suggested that everything
in subdivision 1(4) could be severed except the prohibition on “publish[ing] a defamatory
statement.” Jorgenson, 934 N.W.2d at 375. That su ggestion for major surgery was not

4 Minnesota Statutes § 609.27, subd. 1(1), criminalizes “a threat to unlawfully inflict
bodily harm upon, or hold in confinement, the person threatened or another, when robbery
or attempt to rob is not committed thereby. ” (Emphasis added). Subdivision 1(2)
criminalizes a “threat to unlawfully inflict damage to the property of the person threatened
or another.” (Emphasis added). Subdivision 1(3) criminalizes “a threat to unlawfully injure
a trade, business, profession, or calling.” (Emphasis added.).
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made to us, and the State ma de no other proposal for severa n c e . I n a n y e v e n t , t h e
prohibition on threatening to publish a defamatory statement that is true is part of the
substantial overbreadth problem.
Amicus Minnesota County Attorneys Association sugg ests that we sever the
non-pecuniary harm penalty provision in su bdivision 2(1). Even if we put aside our
reluctance to “decide issues raised solely by an amicus,” Hegseth v. Am. Family Mut. Ins.
Grp., 877 N.W.2d 191, 196 n.4 (Minn. 2016), that approach would leave in place the
entirety of subdivision 1(4)—t he prohibitory words—and s till criminalize a substantial
amount of protected speech. Severance is not the solution.
When a statute is substantially overbroad, and is unable to be saved by a narrowing
construction or severance, “the remaining option is to invalidate the statute.” Hensel, 901
N.W.2d at 175. Here, subdivision 1(4) can not be narrowed or sa ved by severance.
Therefore, subdivision 1(4) must be invalidated as violating the First Amendment.
C.
Both the State and the dissent assert that subdivision 1(4) covers only unprotected
speech. But they rely on dram atically different theories. As discussed, the State relies
solely on the fighting- words exception, whic h is insufficient. The dissent relies on a
different exception. The dissent’s theory is that the definition of “threat” is so narrow that
it includes only “speech integral to criminal conduct,” another of the categorical exceptions
15
to the First Amendment. See In re Welfare of A.J.B. , 929 N.W.2d at 846 (listing the
“several delineated categories” of exceptions to the First Amendment).5
The State argued the “speech integral to criminal conduct” issue in the court of
appeals, but abandoned it there. The State’s petition for further review and its brief relied
solely on the fighting-wo rds exception. A party forfeits an issue that is no t raised in its
petition, see In re GlaxoSmithKline PLC , 699 N.W.2d 749, 757 (M inn. 2005), or in its
brief, State v. Williams, 771 N.W.2d 514, 517 n.2 (Minn. 2009).
Ordinarily, we would address the dissent merely by observing that the issue has
been forfeited. But, because this is a cons titutional case, and because we do not lightly
overturn a statute, we choose to analyze the dissent’s theory. It is unpersuasive, for three
reasons.
First, the dissent relies on a definition of “threat” plucked out of its context. The
dissent would define “threat” to mean only “a declaration of an intention to injure another
or his property by some unlawful act.” This definition necessarily includes the element of
an unlawful act separate from the communica tion. The definition comes from a single
sentence in State v. Schweppe, 237 N.W.2d 609, 613 (Minn. 1975), which cited as support
cases from the Western District of Tennessee and Kansas.
6

5 We do not understand the dissent to be arguing that the true-threats exception
applies. Indeed, if the dissent were correct that every threat as the dissent defines it is
“speech integral to criminal conduct,” there would be no reason for the true-threats
exception to continue to exist.

6 The State did not cite Schweppe in its brief. At oral argument, the State offered
substantially the same definitio n of “threat” that we adopt to day: “an expression of an
16
In Schweppe, the defendant was convicted of ma king terroristic threats to kill a
16-year-old boy and his mother. Id. at 612. The issue in that case was not the definition
of “threat”; it was whether, under the terroristic-threats statute, the threat to kill needed to
be communicated directly to support a conviction. Id. at 614. Unlike subdivision 1(4), the
terroristic-threats statute expressly called ou t the element of a separate unlawful act:
“Whoever threatens to commit any crime of violen ce with purpose to terrorize
another . . . .” Minn. Stat. § 609.713, subd. 1 (1974). Schweppe is inapplicable.
Second, the dissent’s assumption that th e word “threat” nece ssarily includes an
unlawful act element just does not work for subdivision 1(4 ). The adjective “unlawful”
appears in subdivision 1 in paragraphs (1 ) (“a threat to unlawfully inflict bodily
harm. . . .”), (2) (“a threat to unlawfully in flict damage . . . .”), and (3) (“a threat to
unlawfully injure . . . .”), but it appears nowhere in paragraph (4). If the dissent were
correct, and the word threat by definition necessarily includes the element of an unlawful
act, the word “unlawfully” in subdivision 1(1)–(3) would be pure surplusage. But such an
interpretation runs head-long into one of our canons of interpretation: that every statutory
word has meaning and none is surplusage. The canon requires us to “give effect to all of a
statute’s provisions,” so that “no word, phrase, or sentence is deemed superfluous, void, or
insignificant,” Allan v. R.D. Offutt Co., 869 N.W.2d 31, 33 (Minn. 2015); see Minn.
Stat. § 645.16 (2018)). Specifically, “a conditi on expressly mentioned in one clause of a
subdivision provides evidence that the Legislature did not intend for the condition to apply

intention to inflict harm or in jury.” Based on that defin ition, the State conceded that
subdivision 1(4) criminalizes multiple threats frequently found in daily life.
17
to other clauses in which the condition is not stated.” Seagate Tech., LLC v. W. Dig. Corp.,
854 N.W.2d 750, 759 (Minn. 2014). For us to add the word “unlaw ful” to subdivision
1(4), we would be doing what we cannot: “add words or mean ing to a statute that were
intentionally or inadvertently omitted.” Rohmiller v. Hart, 811 N.W.2d 585, 590 (Minn.
2012). As the State acknowledged at oral argument, subdivision 1(4), on its face, covers a
wide variety of threats to do lawful acts, including threats to lawfully report the unlawful
acts of others.
At root, the dissent’s interpretation is an understandable wish that we read
subdivision 1(4) as merely banning extortion,7 which is speech integral to criminal conduct.
But the Minnesota coercion statute is not a pur e extortion statute; it criminalizes threats
that are not extortionate.
Federal extortion statutes are much narro wer than subdivision 1(4). Under the
federal Hobbs Act, extortion is “the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence, or fear, or under color of
official right.” 18 U.S.C. § 1 951 (b)(2) (2018). An d it is a crime to ma il or transmit in

7 Extortion is a classic movie an d television theme. An example:

Saul: Okay, there’s always: “Y ou got a real nice plac e here. Be a shame if
something happened to it.” That angle.
Skyler: What are you talking about? Violence?
Saul: Attitude adjustment.

Breaking Bad: Open House (AMC television broadcast July 31, 2011) (discussing how to
persuade a business owner to launder drug money).
18
interstate commerce certain threats with the “intent to extort” money or property. 18
U.S.C. § 875(d) (2018). Federal courts, incl uding in the two cases cited by the dissent,
have interpreted “intent to extort” to require that the threat be “wrongful.” See, e.g., United
States v. Coss, 677 F.3d 278, 290 (6th Cir. 2012) (holding that, under 18 U.S.C. § 875(d),
a threat must “be wrongful” and it must “be made in conjunction with the specific intent to
extort” for the purpose of ensuring “that its application is sufficiently constrained to reach
only nonprotected speech”); United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988)
(holding that the element of “intent to exto rt” saves the statute fro m overbreadth because
“it does not regulate speech relating to social or political conflict”).8
Subdivision 1(4), which does not even use the words “extort” or “extortion,” sweeps
far broader than the federal extortion statutes. The threat need not induce force, violence,
or fear, as most extortionate threats do. No r is subdivision 1(4) li mited to criminalizing
demands for money or property; it encomp asses all demands to do—or forbear from
doing—any acts, including lawful acts. Such threats are found often in political and social
discourse.9

8 In Hutson, 843 F.2d at 1234, the Ninth Circu it distinguished the federal extortion
statutes from a Montana intimida tion statute it struck down in Wurtz v. Risley , 719 F.2d
1438 (9th Cir. 1983), superseded by statute as stated in State v. Ross, 889 P.2d 161 (Mont.
1995). Similar to subdivision 1(4), the Montana statute prohibited threats “with the purpose
to cause another to perform or to omit the performance of any act.” Hutson, 843 F.2d at
1234 (quoting Risley, 719 F.2d at 1439).

9 The dissent’s assertion that “the statut e requires every threat to be accompanied by
an intent to extort something of value” is incorrect. No such words appear in the statute.
Subdivision 1 focuses on the recipient’s “acts”; subdivision 2 makes clear that the act may
have no pecuniary value; and under section 609.275, a threat is a criminal attempt even if
the intended act or forbearance never happens.
19
As the Second Circuit explained in United States v. Jackson, the omission of a
wrongfulness element alone sweeps in all kinds of lawful speech:
[P]lainly not all threats to engage in speech that will have the effect of
damaging another person’s reputation, even if a forbearance from speaking
is conditioned on the paymen t of money, are wrongf ul. For example, the
purchaser of an allegedly defective pr oduct may threaten to complain to a
consumer protection agency or to br ing suit in a pub lic forum if the
manufacturer does not make good on its wa rranty. Or she may threaten to
enlist the aid of a television “on-the-side-of-the-consumer” program. Or a
private club may threaten to post a list of the club members who have not yet
paid their dues. We doubt that Co ngress intended [section] 875(d) to
criminalize acts such as these.
180 F.3d 55, 67 (2d Cir. 1999). All of these scenarios would be criminal under the
Minnesota coercion statute.
For these reasons, the dissent’s theory that the statute prohibits only speech integral
to criminal conduct is incorrect. Minne sota Statutes § 609.27, subd. 1(4) is
unconstitutional.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

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D I S S E N T

GILDEA, Chief Justice (dissenting).

The majority concludes that part of Minne sota’s criminal coercion statute, Minn.
Stat. § 609.27, subd. 1(4) (2018), violates th e First Amendment because it criminalizes a
substantial amount of protected speech. Because the majority misinterprets the statute, I
dissent.
Jorgenson asserts that Minn. Stat. § 609.27, subd. 1(4), is unconstitutionally
overbroad. “Minnesota statutes are presumed constitutional, and our power to declare a
statute unconstitutional should be exercised with extreme caution . . . .” State v. Machholz,
574 N.W.2d 415, 419 (Minn. 1998) (emphasis added), superseded by statute as stated in
State v. Hall , 887 N.W.2d 847 (Minn. App. 2017). To assess Jorgenson’s overbreadth
claim, we must first interpret the statute. See State v. Washington-Davis, 881 N.W.2d 531,
537 (Minn. 2016). The analysis ends if we determine that the statute regulates only
unprotected speech that does not result in unrelated content discrimination. See id.
When the statute is properly interpreted, it is clear that Minn. Stat. § 609.27,
subd. 1(4), passes constitutional muster beca use the statute regulat es only unprotected
speech. The specific provision at issue in this case defines one type of criminal coercion
as “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) (emphasis
added). The keyword is “threat.” Because the statute does not contain any defined terms,
the words and phrases should be construed using their common meaning. See Minn. Stat.
§ 645.08(1) (2018). Technical words and phrases should be construed according to their
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defined meaning. Id.; see also In re Welfare of J.J.P., 831 N.W.2d 260, 266 (Minn. 2013)
(applying a technical definition to a legal phrase based on its special meaning in the court
system), superseded by statute as stated in In re Welfare of J.T.L., 875 N.W.2d 334 (Minn.
App. 2015). Under Minnesota law, the legal definition of the term “threat” is “a declaration
of an intention to injure another or his property by some unlawful act.” State v. Schweppe,
237 N.W.2d 609, 613 (Minn. 1975) (emphasis added).1 “[T]he question of whether a given
statement is a threat turns on whether the ‘communication in its context would have a
reasonable tendency to create apprehension that its originator will act according to its
tenor.’ ” Id. (quoting United States v. Bozeman , 495 F.2d 508, 510 (5 th Cir. 1974)). By
leading with the term “threat,” Minn. Stat. § 609.27, subd. 1(4), is expressly limited to
situations where an individual threatens another individual by declaring an intention to
injure the person or his property by some unlawful act. The use of the legal term “threat”
in the plain language of the statute limits its scope.
The majority discounts the express and lim ited prohibition ag ainst “threats” in
paragraph (4) by concluding that a threat can include protected speech. I disagree. The
United States Supreme Court has observed that a threat, or a “verbal or visual assault,” is
an example of “unwanted communication” and implicates a person’s right to be left alone,

1 The majority asserts that the legal defin ition of the word “threat” is inapplicable
because in Schweppe, we interpreted a different criminal statute (terroristic threats) with
different statutory language. It is true that in Schweppe, we discussed the elements of
terroristic threats under Minn. Stat. § 609.713, subd. 1 (1974), but in defining the term
“threat,” we defined the term generally and not as it relates to terroristic threats only. See
Schweppe, 237 N.W.2d at 613. Therefore, use of the legal definition of a threat as set forth
in Schweppe is appropriate.
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arguably one of “the most comprehensive of rights and the right most valued by civilized
[people].” Hill v. Colorado , 530 U.S. 703, 716–17 (200 0) (citation omitted) (internal
quotation marks omitted). And other courts have held, as I would in this case, that a threat
of extortion is unprotected speech because it is speech integral to criminal conduct. 2 See
United States v. Coss , 677 F.3d 278, 289 (6th Cir. 20 12) (upholding a federal statute
criminalizing extortionate threats against the defendant’s First Amendment challenge);
United States v. Hutson , 843 F.2d 1232, 1235 (9th Cir. 1988) (upholding the federal
extortion statute as not unconstitutionally overbroad or vague).
In Coss, the defendants were indicted under fede ral law with conspiracy to extort
money and the transmission of th reats to injure the reputation of another with intent to
extort money based on allegations that they threatened to release photographs of a
well-known celebrity engaging in wrongful behavior unless the celebrity paid a large sum
of money to purchase the photographs from th em. 677 F.3d at 280–82. The defendants
challenged the federal statutes as overbroad and vague in violation of the First Amendment.
Id. at 282. In analyzing the federal statute, the Sixth Circuit held that “extortionate threats”
are not protected speech under the First Amendment. Id. at 289. The Sixth Circuit

2 The majority argues that I cannot rely on this positi on because the State
“abandoned” the argument. The majority acknowledges that the State raised the argument
below but contends that the argument is now forfeited because it was not mentioned in the
petition for review or asserted in the State’s brief. I disagree. The State’s brief asserts that
both fighting words and extortionate spee ch are unprotected speech under the First
Amendment. Although the theory of speech integral to crim inal conduct is not the focus
of the State’s brief to our court, it has not been abandoned or forfeited. The State has
maintained throughout th is litigation that the speech re gulated by Minn. Stat. § 609.27,
subd. 1(4), is not protected by the First Amendment.
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observed that “the hallm ark of extortion, and its attendant complexities, is that it often
criminalizes conduct that is otherwise lawful.” Id. at 287. The federal circuit court refused
to limit the concept of extortion to unlawful threats because that would exclude “threats to
expose embarrassing true information” that ar e “traditionally associated with the offense
of blackmail.” Id. (quoting Stuart P. Green, Theft by Coercion: Extortion, Blackmail, and
Hard Bargaining, 44 Washburn L.J. 553, 580 (2005)). Accordingly, the federal statutes
and the defendants’ convictions were upheld.
In Hutson, the defendant was indicted under fe deral law with extortion based on
allegations that he threatened to send sexually explicit photographs of his ex-girlfriend to
her relatives unless she paid a large sum of money to him. 843 F.2d at 1233. The defendant
challenged the federal extortion statute as ove rbroad and vague in violation of the First
Amendment. Id. at 1234. The Ninth Circuit upheld the federal statute based on its
conclusion that extortionate threats are not protected speech under th e First Amendment.
Id. at 1235.
Like the statutes in Coss and Hutson, the statute at issue in this case does not
preclude protected speech because the plain language of the statute is limited to
extortionate speech.3
According to the ma jority, my conclusion that the statute only criminalizes
extortionate speech is simply wishful thinking. But the history of the statute supports my

3 The majority rejects my reliance on Coss and Hutson because the language of Minn.
Stat. § 609.27, subd. 1(4), “sweeps far broader than the federal extortion statutes” without
including the words “extort” and “extortion.” But extortion is extortionate speech and the
expression of the concept in different words does not lead to a different outcome.
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view. When the Legislature enacted the statute in 1963, the advisory committee
commented that the adoption of Minn. Stat. § 609.27 wa s premised on the crime of
extortion and expanded to cover cases wh ere “money or property was obtained from
another by means of a threat.” See Minn. Stat. Ann. § 609.27 (West 2016), advisory comm.
cmt.⸺1963. Each subdivision of the statute was intended to encapsulate a different type
of extortionate threat and the crime was called “coercion rather than extortion in view of
the variety of acts encompassed.” Id. Thus, my interpretation of the type of speech
regulated by the statute reflects the reality of the Legislature’s intent, not simply a wish.
The sentencing provision of the statute aligns the value of the th reat with the level
of punishment. See Minn. Stat. § 609.27, subd. 2 (2018) (violating the statute is (1) a
misdemeanor if the pecuniary gain is less than $300 or not susceptible to pecuniary
measurement, (2) a gross misdemeanor if the pecuniary gain is more than $300 and less
than $2,500, and (3) a felony if the pecuniary gain is $2,500 or more). The comments made
by the legislative advisory committee in 1963 reveal that the statute was focused on the
crime of extortion. See Minn. Stat. Ann. § 609.27 (West 2016), advisory comm.
cmt.⸺1963 (noting that “the forceful compulsi on by means of a threat of any act or
forebearance [sic] ought to be recognized as a crime.”). The majority fails to acknowledge
that the statute requires every threat to be accompanied by an intent to extort something of
value.4

4 The majority contends that under subd ivision 2, “the act may have no pecuniary
value.” This is not true. For coercion to be charged at the misdemeanor level, the
Legislature put the monetary measurement of the threat to extort at less than $300 or if “the
benefits received or harm su stained are not susceptible of pecuniary measurement.” See
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Moreover, Minn. Stat. § 609.27, subd. 1( 4), focuses on threats directed at an
individual. Specifically, the statute criminalizes “threats” made “to expose any person to
disgrace or ridicule.” Minn. Stat. § 609.27, subd. 1(4) (emphasis added). The use of the
phrase “any person” shows that the Legislature intended for the statute to cover directly
targeted threats aimed at a specific individual. See State v. Melchert-Dinkel, 844 N.W.2d
13, 22 (Minn. 2014). The requirement that the threat be aimed at a particular individual is
important because it narrows the reach of the statute significantly, making it clear that the
statute does not prohibit “general public discussion”5 on the same topic. See id. at 22–23.

Minn. Stat. § 609.27, subd. 2(1) (2018). Something not susceptible to pecuniary
measurement still has value. Notably, when the statute was enacted by the Legislature in
1963, the advisory committee commented that “the forceful compulsion by means of a
threat of any act or forebearance [sic] ought to be recognized as a crime, even though the
offense of the defendant cannot be measured by money standards.” Minn. Stat. Ann.
§ 609.27 (West 2016), advisory comm. cmt.⸺1963. But even assuming that the majority
is correct that pecuniary measurement is a required element of a valid extortion or coercion
claim, the remedy would be to simply strike the phrase from the statutory language of
subdivision 2(1), not invalidate the statute as unconstitutionally overbroad.
5 In striking down subdivision 1(4) as unconstitutional, the majority expresses
concern that this portion of the statute crim inalizes a wide variet y of subject matters,
including threats that touch on matters of public concern and should therefore be protected
by the First Amendment. The majority cites to State v. Robertson, 649 P.2d 569 (Or. 1982),
but that case is distinguishable.
In Robertson, the defendant challenged the constitutionality of the state’s coercion
statute, and the Oregon Supreme Court struck down the statute as substantially overbroad
in violation of the First Amendment. Id. at 571, 589–90. The plain language of the
coercion statute in Oregon is unlike the Mi nnesota coercion statute because the Oregon
coercion statute uses the genera l word “demand” and does not include the word “threat.”
See id. at 577 (citing ORS 163.275). In Robertson, the Oregon Supreme Court determined
that the state Legislature extended and br oadened the crime of extortion too far and
encompassed “most of the hypothetical examples drawn from politics, journalism, family
or academic life.” Id. at 589. In this case, the majority suggests that the statute struck
down in Robertson is “similar to Minnesota’s coercion statute,” but that claim is simply
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And all six subparts begin with the word “threat.” Minn. Stat. § 609.27, subd. 1(1)–
(6). The consistent use of the word “threat” in each subpart suggests that the plain language
of the statute was purposefully constructed in a uniform way to criminalize threats made
by one person against another and not restrict the broader category of communication.6
To be clear, Minn. Stat. § 609.27, subd. 1(4), does not prohibit communication.
Jorgenson could have stood on the street co rner and shouted about his ex-girlfriend’s

not true. The use of the word “threat” in each subpart of the Minnesota coercion statute
limits the scope to extortionate speech.

6 The majority focuses on th e lack of the word “unlawful” in subdivision 1(4) as
compared to subparts (1 )–(3) of the statute and claims th at defining the word “threat” to
include an unlawful act makes the use of th e word “unlawful” already present in the
statutory language of subparts (1)–(3) “pure su rplusage.” I disagree . Defining the word
threat, the first word in all six subparts of s ubdivision 1, to require an unlawful act by the
actor does not make use of the word “unlawfu l” in subparts (1)–(3) superfluous because
the actor’s intent to engage in an unlawful act is separate and distinct from the type of threat
made to force the victim to act against his or her will. The advisory committee comments
from 1963 make the distinction clear and refl ect that the Legislature made a conscious
choice to use the word “unlawful” in subparts (1)–(3) to limit the scope of the category of
threat in each subpart. Minn. Stat. Ann. § 609.27 (West 2016), advisory comm.
cmt.⸺1963. For subpart (1), the committee noted that “[t]he word ‘unlawfully’ appears
necessary in view of the broad language in the introductory clause” or the subpart “would
cover a case such as the father spanking his child for not going to bed.” Id. The committee
made similar comments for subpa rts (2) and (3), noting with rega rd to subpart (3) that if
the word “unlawfully” was not included, “it might be claimed that the statute would make
a strike by employees illegal.” Id. The Legislature made a different choice for subpart 4,
where the word “unlawful” is not used to qualify the categor y of threats. This legislative
choice makes sense because the types of threats listed in the subpart (4) (exposing “a secret
or deformity,” publishing “a defamatory statement,” and exposing a person “to disgrace or
ridicule”) lack the social valu e that the lawful versions of the types of threats in subparts
(1)–(3) might have, such as a lawful employee strike (a lawful injury to a business) or a
parent disciplining a child (a lawful holding in confinement or form of bodily harm). See
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (noting that fighting words are
not protected by the First Amendment and have “ such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social interest
in order and morality.”).
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alleged marijuana use to anyone passing by and his speech would not have been
criminalized by the statute. The statut e simply does not prohibit this type of
communication. Instead, subdivision 1(4) prohibits and crimina lizes threats by one
individual to another with an intent to extort something of value. In this case, rather than
shouting the information from a street corner, or simply communicating the information to
interested parties, Jorgenson directly threatened to expose the information unless he was
paid a large sum of money by his ex-girlfriend’s father. The statute properly criminalizes
his threat and the First Amendment does not shield him from the criminal consequences.
The majority comes out diffe rently, relying on several h ypothetical situations to
support its conclusion that Minn. Stat. § 609.27, subd. 1(4), is unconstitutionally
overbroad. The majority sets forth three examples—a la w student confronting a law
professor about sexual harassment, a school bus driver confronting an underage smoker,
and an aunt confronting a known sexual abuser in an attempt to save her family from future
abuse—and asserts that the speech in each example “benefits society” and should,
therefore, be protected and not criminalized. But the statute does not regulate the speech
in these hypotheticals; the law student, the bus driver, and the aunt can put their charges up
on a billboard and not run afoul of the statute. What they ca nnot do is threaten someone
with an intent to extort something of value.
Because Minn. Stat. § 609.27, subd. 1(4), criminalizes threats, which are not
protected speech, I would reverse the court of appeals’ decision and hold that subdivision
1(4) does not violate the First Amendment.