Introduction During the 2017 and 2018 legislative sessions, the Minnesota Legislature debated H.F. 390, a bill that would increase criminal penalties for protesters that block highways, public transit, or airport access.[i] Introduced to deter the disruptive tactics of Black Lives Matter protests in Minnesota, the bill was highly controversial, highlighted by a partisan political divide on the issue.[ii] Proponents of the bill argued that H.F. 390 was necessary to stop demonstrations that block traffic and to protect public safety.[iii] Opponents, including the ACLU of Minnesota, were skeptical, countering that the bill was an unnecessary attempt to silence dissent and restrict protesters’ fundamental First Amendment rights of free speech and assembly.[iv] Efforts to deter acts of civil disobedience that challenge the status quo or draw attention to current injustice and inequality are nothing new. While controversial at the time, these acts are now seen as important social and cultural turning points in our nation’s history.[v] On its face, the debate around H.F. 390 appeared to pit fundamental constitutional rights against the need for public safety. However, a closer look reveals a number of underlying tensions and related questions. For example, does siding with the racial justice efforts of Black Lives Matter mean that one is opposing or disrespecting law enforcement? We expect the police to monitor public protests and keep the peace if a demonstration becomes unlawful; however, what happens to the dynamic when law enforcement is policing a protest meant to raise awareness of acts of police violence against that very community? Furthermore, what types of public disruption and inconvenience to others are appropriate to challenge the status quo, and who should get to make that call? Finally, was the effort behind H.F. 390 merely a partisan wedge issue to exploit in the 2018 election?

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.” —Harry S. Truman, Special Message to the Congress on the Internal Security of the United States (August 8, 1950)

Part I of this Article will discuss the recent protests in Minnesota that inspired legislators to introduce H.F. 390 and other anti-protest provisions. Part II will detail how H.F. 390 sought to amend current state statute, and its legislative path from introduction in 2017 to veto by Governor Dayton in 2018. Finally, Part III will present the ACLU of Minnesota’s arguments in opposition to the bill, including an analysis of how Minnesotans’ lives would have been affected had it passed into law.

I. Timeline of Recent Protests in Minnesota[vi]

Outrage Over Police Killings in 2014

In 2014, the nation was shaken by two high-profile police killings of unarmed black men: Michael Brown in Ferguson, Missouri and Eric Garner in New York City. First, the August 9, 2014 killing of Michael Brown set off a wave of protests led by the Black Lives Matter movement. The initial protests in Ferguson, Missouri, captured by both traditional and social media, were met by a militarized police response, further heightening tensions between law enforcement and communities of color.[vii]

When the grand jury decided not to indict the officer who shot Michael Brown on November 25, 2014, hundreds of Minnesotans took to the streets, blocking Highway 55 in Minneapolis.[viii] A few days later, on December 4, 2014, the grand jury in the Eric Garner case similarly decided not to indict the officer involved in Garner’s death, prompting Black Lives Matter to hold a rally and peaceful protest that blocked Interstate 35W in Minneapolis for over an hour.[ix] While both spontaneous demonstrations in Minneapolis blocked traffic and temporarily inconvenienced travelers, no protesters were arrested.

The following month, Black Lives Matter organized a large-scale demonstration at the Mall of America days before Christmas to draw further attention to police violence against communities of color.[x] Holiday shopping was temporarily disrupted as mall authorities decided to close stores in one part of the mall. Protesters demonstrated for about thirty minutes in the mall’s rotunda before law enforcement in riot gear dispersed the crowd.[xi] Twenty-five people were arrested and seventeen ultimately faced minor trespass charges.[xii]

Protests in Response to Police Killings in Minnesota

The next two years saw an escalation in local protests of police violence due to the shootings of Jamar Clark in Minneapolis and Philando Castile in Falcon Heights. Jamar Clark was shot in an altercation with Minneapolis police officers on November 15, 2015. This shooting involved heightened controversy because of key differences between the reports of the officers involved and witnesses at the scene. Most importantly, several eye-witnesses claimed that Clark was already handcuffed and no longer struggling when he was shot, while the officers stated that he was not handcuffed and had grabbed an officer’s gun.[xiii]

In response to Clark’s death, nearly 300 protesters spontaneous shut down Interstate 94 in Minneapolis for several hours.[xiv] The protest resulted in the arrest of 42 people, including eight juveniles. These demonstrators received misdemeanor citations for unlawful assembly and obstructing the freeway.[xv] Protesters also set up camp in front of the Minneapolis Police Department’s 4th Precinct for eighteen days, seeking release of the video footage of the Clark shooting and prosecution of the officers involved.[xvi] On December 23, 2015 hundreds of Black Lives Matter protesters returned to the Mall of America. This protest quickly moved to the nearby Minneapolis-St. Paul International Airport, disrupting light rail traffic to the terminals and freeway access in front of the airport.[xvii] Fifteen people were arrested for trespass or obstruction of justice.[xviii]

Less than seven months later, on July 5, 2016, Philando Castile was shot by a St. Anthony police officer during a traffic stop in Falcon Heights. Castile’s fiancé, Diamond Reynolds, and her four-year-old daughter were also in the car, and Reynolds began live-streaming to Facebook shortly after the shooting, which drew immediate media attention and outrage. Days later, hundreds of protesters shut down Interstate 94 west of downtown St. Paul to draw sustained attention to the shooting.[xix] Traffic was quickly diverted off of the freeway at Lexington Avenue. While the protest began peacefully, some protesters reportedly began to throw bottles, rocks, and cement, injuring a number of St. Paul police officers.[xx]

Ultimately, 102 protesters were arrested, and 47 were charged with third-degree riot, public nuisance, and unlawful assembly.[xxi] The third-degree riot charges, a gross misdemeanor, were later thrown out in court based on a lack of probable cause as prosecutors provided no evidence that any of the individual defendants personally threw dangerous objects at the officers.[xxii] Nearly all of the protesters resolved the misdemeanor charges through plea agreements, but Jeffrey Berger chose to go to trial.[xxiii] Berger was acquitted on the count of unlawful assembly, but convicted under the public nuisance statute.[xxiv] On January 7, 2019, the conviction was overturned by the Minnesota Court of Appeals.[xxv] The court found that “the state did not present sufficient evidence to establish that he personally interfered with, obstructed, or rendered I-94 dangerous for passage.”[xxvi]

II. Anti-Protest Bills at the Minnesota Legislature

The 2017 Session

In the early fall of 2016, it appeared that public outrage over the recent police shooting of Philando Castile, coupled with two years of high-profile Black Lives Matter protests demanding racial justice in policing and our criminal justice system, had set the stage for potential reforms at the Minnesota Capitol. For example, as part of its agenda, the ACLU of Minnesota planned to advocate for new legislation to enhance civilian review of police conduct and to require independent investigations of police violence. However, the ACLU’s plans changed after the general election on November 8, 2016. While this election will long be remembered for the election of President Donald Trump, it also changed the political landscape at the state-level in Minnesota. The Republican-controlled House of Representatives increased to a 77-57 majority and the State Senate flipped to give Republicans a narrow majority of 34-33 seats.

Instead of advancing reforms to address the underlying issues of racial justice and disparities in Minnesota, Republican legislators immediately introduced several bills in January 2017 aimed at deterring the specific tactics of Black Lives Matter protests.[xxvii] These bills were part of a national trend to push back against rising activism across the county.[xxviii] According to House Speaker Kurt Daudt (R-Crown), passing bills to crack down on highway protests was a top priority for Republicans at the Minnesota Legislature.[xxix]

Rep. Nick Zerwas (R-Elk River) introduced two bills, H.F. 322 and H.F. 390, relating to protests. H.F. 322 addressed civil liability for unlawful assemblies and would allow the government to sue protesters for the response costs of policing demonstrations.[xxx] This bill received one contentious hearing in the House,[xxxi] but failed to advance further in the 2017 or 2018 sessions.[xxxii]

H.F. 390,[xxxiii] referred to by opponents and often in the media as the “Anti-Protest” bill, sought to increase penalties for obstructing access to highways, airports, or public transit by amending Minnesota’s public nuisance[xxxiv] and transit crime[xxxv] laws. Under current law, it is a misdemeanor offense[xxxvi] when a person intentionally “interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public” or “interferes with or obstructs, or tends to interfere with or obstruct, the operation of a transit vehicle.”[xxxvii] H.F. 390 would make it a gross misdemeanor for a person to “interfere with or obstruct traffic that is entering, exiting, or on a freeway or entering, exiting, or on a public roadway within the boundaries of airport property with the intent to interfere with, obstruct or otherwise disrupt traffic.” Further, it would also be a gross misdemeanor when a person intentionally “interferes with or obstructs, or tends to interfere with or obstruct, the operation of a transit vehicle,” including restricting “passenger access to a transit vehicle.” A gross misdemeanor is punishable by up to one year in jail and/or up to a $3,000 fine.

Both H.F. 390 and its Senate companion, S.F. 676, were heard in committee for the first time on February 22, 2017. Rep. Zerwas presented H.F. 390 to the House Public Safety and Security Finance and Policy Committee.[xxxviii] He and several other Republican committee members argued that the bill was needed to protect public safety and to make sure that our roads and transit ways stay unobstructed. They further argued that increased penalties would act as a deterrent to stop protesters from demonstrating on highways, which inconveniences drivers and could hypothetically slow ambulances and other public safety response vehicles. While many organizations and private individuals testified in opposition to the bill, it is noteworthy that no members of law enforcement or concerned members of the public testified in support of the bill. Despite fierce opposition from both DFL committee members and advocacy groups like the ACLU of Minnesota, H.F. 390 passed the committee on a 10-6 party line vote and was sent to the General Register. Later in the day, the Senate companion, S.F. 676, authored by Sen. Bill Ingebrigtsen (R-Alexandria), was heard in the Judiciary and Public Safety Finance and Policy Committee.[xxxix] Senators and public testifiers made similar arguments in favor and opposition to the bill, and it passed the committee on a nearly party-line vote of 7-2.[xl]

Technically, neither H.F. 390 nor S.F. 676 received a full, stand-alone vote in the House or Senate in the 2017 legislative session. Instead, lawmakers included the provision in the initial Omnibus Public Safety Bill.[xli] The Omnibus Bill, which included both must-pass appropriations for state government and controversial policy provisions like the anti-protest bill, passed the House on a vote of 75-54 and the Senate on a 34-32 margin. It was then vetoed by DFL Governor Mark Dayton on May 15. In his veto message to the Senate, Governor Dayton highlighted what he viewed as significant deficiencies in the bill, noting that “[t]here are several controversial policy items included in this bill that should be debated elsewhere.”[xlii] Soon after, legislative leaders crafted a second Omnibus Public Safety Bill in the waning days of session. This new bill provided different appropriations and removed many controversial policy items, including the anti-protest provision. With these changes, the Governor ultimately signed the bill into law. Despite the initial veto, the Governor’s position on the anti-protest bill was still unclear. While he had stated that he generally supports protesters’ First Amendment rights, Dayton also expressed concerns about demonstrations that take place on highways.[xliii] Although H.F. 390 would not become law in 2017, it remained available for possible action in 2018, and Rep. Zerwas indicated that he planned to push for it again in the second year of the legislative biennium.

The 2018 Session

As expected, H.F. 390 returned in the 2018 session of the Minnesota Legislature, along with a new effort to deter demonstrations and silence opposition against controversial oil pipelines. Early in the session, it was clear that fighting off these attempts to restrict Minnesotans’ civil liberties would be a top priority for the ACLU of Minnesota.

Commonly referred to by opponents as the “Guilty-by-Association Bill,” H.F. 3693 would make protesters and their supporters both criminally and civilly liable for damage to or trespasses on “critical infrastructure,” such as oil pipelines, even if the damage or trespass is done by others.[xliv] This bill was explicitly aimed at deterring demonstrations at or near fossil fuel projects, such as the proposed Enbridge Line 3 pipeline.[xlv] H.F. 3693 moved through the Legislature on a parallel track to H.F. 390. For purposes of this article, I will only provide a high-level overview of the Guilty-by-Association Bill as it relates to the Anti-Protest Bill.

Procedurally, both H.F. 390 and its Senate counterpart, S.F. 676, were sent back to their previous committees during the interim. S.F. 676 was heard on February 21 in the Senate Judiciary Committee, and quickly passed the committee to the Senate floor.[xlvi] No public testimony was taken as the Committee Chair explained that the same bill was debated and voted on by the same committee the previous session.[xlvii] In March, H.F. 390 received a similar hearing, passed, and was sent to the House General Register.[xlviii]

Near the end of session, the language from H.F. 390 was also included in the 2018 Omnibus Public Safety Bill.[xlix] That bill was eventually folded into the nearly 1,000 page Supplemental Finance Omnibus bill, cleverly nicknamed “Omnibus Prime,” without the anti-protest provision.[l]

Unlike 2017, when the anti-protest language was largely included in an omnibus policy and appropriations bill as Republican leverage against the DFL Governor, both H.F. 390 and the new H.F. 3693 received stand-alone votes in the waning days of the 2018 session. Despite strong opposition from the House DFL, especially with members of the House People of Color and Indigenous (“POCI”) Caucus, the bill passed the House on a vote of 71-55 on May 8.[li] The Senate then passed the bill 40-27 on May 14, sending it to the Governor’s desk.[lii] The Guilty-by-Association Bill advanced on a similar timeline, passing the Senate 37-28 and the House 77-46.[liii]

The fate of both anti-protest bills in 2018 now rested with Governor Dayton. After three days of uncertainty, Dayton vetoed H.F. 390 on May 19.[liv] In his veto letter, Dayton mirrored several of the arguments raised by the ACLU of Minnesota, discussed in detail below. For example, Dayton expressed concern that the transit obstruction language was unacceptably vague and subjective, given that the crime would now be a gross misdemeanor.[lv] He also noted that “[c]urrent law gives law enforcement the authority and tools needed to protect public safety,” and that several existing gross misdemeanor crimes “involve threats to public safety (DWIs) and crimes of violence against individuals (assault and domestic assault).”[lvi] Finally, he acknowledged that “other illegal acts committed by individuals during protests, such as an assault against a police officer, are properly classified by themselves as gross misdemeanors or more severe.”[lvii] Governor Dayton similarly vetoed the Guilty-by-Association Bill on May 30.[lviii]

While neither anti-protest bill became law in 2018, the issue continued to be used as political fodder during the 2018 election season. With all seats in the Minnesota House of Representatives up for grabs, at least one conservative Political Action Committee (PAC) tried to use a “no” vote on H.F. 390 against DFL incumbents. For example, a mailer “paid and prepared for by the Freedom Club[lix],” attacked Rep. Jamie Becker-Finn (DFL-Roseville) based on her opposition to H.F. 390.[lx] The mailer mischaracterized her position on the issue, stating that Rep. Becker-Finn “stands with extremists” and “thinks it’s cool to shut down highways.” It goes on to say that “she refuses to support a bill making it a serious crime for protesters to block emergency vehicles.”[lxi] This partisan political attack was ultimately unsuccessful as Rep. Becker-Finn won re-election and the DFL party gained control of the Minnesota House by a wide, 75-59 seat margin in the 2018 midterm election.

III. The ACLU of Minnesota’s Opposition to H.F. 390

The ACLU of Minnesota lobbied against H.F. 390, and the other anti-protest bills discussed above, at every opportunity, including testifying in committee, meeting with lawmakers and legislative staff, working with coalition members, providing floor letters to the full House and Senate, and sending a formal veto request to Governor Dayton.[lxii] Fighting back attacks against fundamental First Amendment rights is a core ACLU value, especially when the attack is aimed at traditionally marginalized communities.

The ACLU presented four main arguments in opposition to H.F. 390: (1) it seeks to silence dissent; (2) it is unnecessary; (3) it would have a chilling effect on the exercise of free speech, and (4) the punishment is disproportionate to the crime.[lxiii] I will discuss each of these arguments in turn.

Seeks to Silence Dissent

While, on its face, H.F. 390 is aimed at what can be described as criminal conduct (intentionally obstructing highways, transit, and airport access), the proponents’ true goal is to deter similar protests in the future. As noted above, disruptive tactics have been effectively employed in the aftermath of shootings to heighten public awareness of police violence against the black community. A press release or rally in front of the Capitol is unlikely to garner the same media attention.

The First Amendment protects protests that stir anger, question preconceptions, and challenge the government’s actions or policy.[lxiv] It is essential to allow people to freely demonstrate or protest in an immediate, spontanueous reaction to current events.[lxv] As the Supreme Court has noted, “timing is of the essence in politics . . . and when an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be considred at all.”[lxvi]

Increased Penalties Are Not Necessary

H.F. 390 is unnecessary to protect public safety and clear highways, transit, and airport access from obstruction because Minnesota already has ample laws to address unsafe conditions, including demonstrations. As discussed above, current statutes include criminal charges for unlawful assembly,[lxvii] public nuisance,[lxviii] and riot.[lxix] Protesters that obstruct traffic are often arrested and charged with some combination of these crimes, and there is a deterrent effect due to the current threat of jail time and substantial fines. Furthermore, if changes to current law were necessary to protect public safety, representatives of law enforcement, including police and prosecutors, would have publicly testified about the need for increased penalties as they commonly do on other crimal law issues at the Legislature.

Chilling Effect on the Exercise of Free Speech

There is a strong history of protecting and advancing free speech in this country. H.F. 390 would up the ante for people who are considering attendance at a protest. The specter of spending up to a year in jail would likely chill participation in constitutionally-protected demonstrations and protests.

The Punishment Does Not Fit the Crime

Finally, H.F. 390 creates punishments that are vastly out of proportion to the conduct it seeks to deter. Obstruction of highways, airport access, and public transit are actions that primarily result in inconvenience to travelers. Punishing protesters with a gross misdemeanor penalty for this conduct is disproportionate as compared to other criminal behavior punishable at the same level. For example, Minnesota law imposes the same punishment for someone found guilty of crimes like fifth-degree assault,[lxx] domestic assault,[lxxi] false imprisonment,[lxxii] fifth-degree criminal sexual conduct,[lxxiii] and malicious punishment of a child.[lxxiv]

Furthermore, Minnesota should balance the interests at stake when determining whether and how severely to punish expressive conduct. Minnesotans are used to traffic detours due to seasonal construction and roadwork. We also live in a climate where weather-related accidents and traffic delays are part of our daily lives during the long winter season. Increasing penalties to punish and deter protesters for the sake of convenient travel is neither appropriate nor proportionate.

Conclusion

Minnesota narrowly escaped moving backwards on protest rights in 2018. Had H.F. 390 become law, the message would be clear: in Minnesota, the exercise of your First Amendment rights is only welcome when it convenient for the majority, and minority opinions should not be expressed if that act somehow disrupts the status quo. Deterring speech that we disagree with by criminalizing the tactics used to amplify minority voices erodes not only speech rights, but also trust between the police and the communities they serve.

Looking back, it appears that the fight to increase penalties on protesters was never more than a partisan ploy to further divide the electorate and provide fodder for the 2018 elections. If that was the strategy, it failed. Minnesota now has a new DFL House majority, Governor, and Attorney General. It is highly unlikely that anti-protest efforts will get any meaningful traction in the next few years. On the other hand, advocates see a real opportunity to finally make progress on complex issues of policing and criminal justice reform.

[i] H.F. 390 (as introduced), 90th Minn. Legis. (2017-18).

[ii] See Ricardo Lopez, Bills to crack down on Minnesota protesters advance in House, Senate, Star Tribune (Feb. 22, 2017), http://www.startribune.com/bills-to-crack-down-on-minnesota-protesters-advance-in-house/414524183/.

[iii] Id.

[iv]Id.

[v] Benjamin Feist & Teresa Nelson, Disruption of Business as Usual: Protest Rights and Policy Challenges in 2017, Hennepin Law. (March/April 2017) (Historical acts of civil disobedience span from the Boston Tea Party, the Edmund Pettus Bridge in Selma, Alabama, student campus occupations protesting the Vietnam War, and the Stonewall Riots, to name only a few).

[vi] Id. (The timeline of protest activity in Part I borrows heavily from the author’s previous writing on the subject.).

[vii] See Ashley M. Eick, Forging Ahead from Ferguson: Re-evaluating the Right to Assemble in the Face of Police Militarization, 24 Wm. & Mary Bill Rts. J. 1235 (“For many around the world, it was almost impossible to reconcile the pictures of police mounted on armored vehicles rolling towards civilian protesters with modern American society.”).

[viii] Brandt Williams, Matt Sepic, Laura Yuen, & Dan Kraker, Minnesotans Rally over Ferguson ruling; Car hits Woman during Protest, MPR News (Nov. 25, 2014), https://www.mprnews.org/story/2014/11/25/twincities-ferguson-protests; see also Feist & Nelson, supra note 7.

[ix] Brandt Williams, Protests shut down part of 1-35W for over an hour, MPR News (Dec. 4, 2014), https://www.mprnews.org/story/2014/12/04/protesters-close-i35w; see also Feist & Nelson, supra note 7.

[x] See Sarah Horner, Mall of America shuts down as hundreds protest, Pioneer Press (Dec. 19, 2014). See also Feist & Nelson, supra note 7.

[xi] Id.

[xii] See John Reinan & Rochelle Olson, Judge dismisses charges against organizers of Black Lives Matter protest at MOA, Star Tribune (Nov. 11, 2015). See also Feist & Nelson, supra note 7.

[xiii]34 adults, 8 juveniles arrested as Jamar Clark protest shuts down I-94, Fox 9 News (Nov. 16, 2015), http://www.fox9.com/news/minneapolis-mayor-requests-civil-rights-review-of-jamar-clark-shooting.

[xiv] Feist & Nelson, supra note 7.

[xv] Reinan & Olson, supra note 15; see also Feist & Nelson, supra note 7.

[xvi] Elizabeth Chuck, Jamar Clark: Tension Rises After Killing of Unarmed Minneapolis Man, NBC News (Nov. 19, 2015); see also Feist & Nelson, supra note 7.

[xvii] Ben Garvin & Doug Stanglin, Black Lives Matter protest snarls Minneapolis-St. Paul airport, (Dec. 23, 2015), https://www.usatoday.com/story/news/2015/12/23/mall-america-protest-shifts-airport/77839766/; see also Feist & Nelson, supra note 7.

[xviii] Id.

[xix] Randy Furst, Protesters shut down I-94 in St. Paul for hours, Star Tribune (July 11, 2016), http://www.startribune.com/marchers-block-i-94-to-westbound-traffic/386158771/.

[xx] See Josh Verges and Mara H. Gottreid, How the I-94 takeover became a ‘full-scale riot,’ Pioneer Press (Jul. 15, 2016).

[xxi] See Dave Orrick, Riot charges thrown out in Philando Castile Protests, Pioneer Press (Jan. 12, 2017), https://www.twincities.com/2017/01/12/judge-throws-out-riot-charges-in-philando-castile-protests/.

[xxii] Id.

[xxiii] See Paul Walsh, State Court of Appeals overturns conviction of I-94 protester after Castile shooting, Star Tribune (Jan. 8, 2019).

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] See, e.g., H.F. 322 (as introduced), 90th Minn. Legislature (2017-18) and H.F. 390 (as introduced), 90th Minn. Legislature (2017-18).

[xxviii] See Heidi M. Przybyla, Report: ‘Anti-protester’ bills gain traction in state legislatures, USA Today (Aug. 29, 2017), https://www.usatoday.com/story/news/politics/2017/08/29/report-anti-protester-bills-gain-traction-state-legislatures/608609001/; see also Mitch Smith & Michael Wines, Across the Country, a Republican Push to Reign in Protesters, New York Times (Mar. 2, 2017), https://www.nytimes.com/2017/03/02/us/when-does-protest-cross-a-line-some-states-aim-to-toughen-laws.html?_r=0; see also Lee Rowland & Vera Eidelman, Where Protests Flourish, Anti-Protest Bills Follow (Feb. 17, 2017), https://www.aclu.org/blog/speak-freely/where-protests-flourish-anti-protest-bills-follow.

[xxix] Lopez, supra note 4.

[xxx] See H.F. 322 (as introduced), 90th Minn. Legislature (2017-18) and its Senate companion, S.F. 679, authored by Sen. Bill Ingebrigtsen (R-Alexandria).

[xxxi] Lopez, supra note 4.

[xxxii] See Feist & Nelson, supra note 7, for a full discussion of H.F. 322 and the ACLU of Minnesota’s opposition to the bill.

[xxxiii] H.F. 390 (1st Engrossment), 90th Minn. Legislature (2017-18).

[xxxiv] Minn. Stat. § 609.74 (2018).

[xxxv] Id. at § 609.855, subd. 2 (2018).

[xxxvi] Subject to up to 90 days in jail and/or up to a $1,000 fine.

[xxxvii] See Minn. Stat. §§ 609.74, .855, subd. 2 (2018).

[xxxviii] A nearly identical bill, H.F. 1066, authored by Rep. Kathy Lohmer (R-Stillwater), was also heard and passed the Public Safety and Security Finance and Policy Committee on the same day.

[xxxix] The substantially similar S.F. 918, authored by Sen. Karin Housley (R-St. Mary’s Point), was also heard in the committee, where it was combined with S.F. 676 through an author’s amendment.

[xl] The only DFL legislator to vote in favor was Sen. Ron Latz (DFL-St. Louis Park), who joined with all six Republicans on the committee.

[xli] S.F. 803 (4th Engrossment), 90th Minn. Legislature (2017-18).

[xlii] Minn. Sen. J., 90th Leg., Reg. Sess. 5281, http://www.senate.leg.state.mn.us/journals/2017-2018/20170516056.pdf#page=6.

[xliii] See Lopez, supra note 4.

[xliv] H.F. 3693 (as introduced), 90th Leg. (Minn. 2017-18) and S.F. 3463 (as introduced), 90th Leg. (Minn. 2017-18).

[xlv] The ACLU of Minnesota joined with a host of environmental, labor, Native American rights, and other organizations to strongly oppose the bill as unnecessary, unwise, and unconstitutional. We argued that the language runs afoul of the right to due process, punishes the constitutional right to freedom of assembly, and would almost certainly chill protected speech.

[xlvi] Minn. Sen. J., 90th Leg., Reg. Sess. 6220 (2018).

[xlvii] Id.

[xlviii] Minn. H.J., 90th Leg., Reg. Sess. 7472a (2018).

[xlix] S.F. 803.

[l] S.F. 3656 (ultimately vetoed by Governor Dayton).

[li] Minn. H.J., 90th Leg., Reg. Sess. 10330 (2018).

[lii] Minn. Sen. J., 90th Leg., Reg. Sess. 8923 (2018).

[liii] Minn. Sen. J., 90th Leg., Reg. Sess. 8742 (2018); Minn. H.J., 90th Leg., Reg. Sess. 10824 (2018).

[liv] Minn. H.J., 90th Leg., Reg. Sess. 11842 (2018).

[lv] See Veto letter from Mark Dayton, Governor (Minn.), to Kurt Daudt, Speaker of the House (Minn.) (May 19, 2017), http://mn.gov/gov-stat/pdf/2018_05_19_VETO_LETTER_HF390.pdf.

[lvi] Id.

[lvii] Id.

[lviii] Minn. Sen. J., 90th Leg., Reg. Sess. 10623 (2018).

[lix] According to the Freedom Club’s website, “[o]ver the last several years, the Freedom Club State PAC has spent millions supporting conservative Minnesota candidates for public office….” and [t]he Freedom Club State PAC spends more money supporting conservative candidates than any other PAC in Minnesota. See http://www.freedomclub.mn/what-we-do/.

[lx] Exemplar mailer on file with author.

[lxi] Exemplar mailer on file with author.

[lxii] Dear Governor Dayton: Veto the HF 390 Anti-Protest Bill, ACLU of Minnesota(2018), https://www.aclu-mn.org/en/news/dear-governor-dayton-veto-hf-390-anti-protest-bill (last visited Mar 2, 2019).

[lxiii] Id.

[lxiv] Feist & Nelson, supra note 7.

[lxv] See, e.g., Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1047 (9th Cir. 2006) (“The ability to communicate a particular message in a particular location can significantly contrinute to the effecfiveness of that communication.”).

[lxvi] Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 163 (1969) (Harlan, J., concurring).

[lxvii] Minn. Stat. § 609.705 (2018).

[lxviii] Id. at § 609.74.

[lxix] Id. at § 609.71.

[lxx] Id. at § 609.224.

[lxxi] Id. at § 609.2242.

[lxxii] Id. at § 609.255.

[lxxiii] Id. at § 609.3451.

[lxxiv] Id. at § 609.377.