Appeals court blocks Minnesota's censorship of election integrity group over felon voting

Minnesota is a leader among states testing First Amendment limits on regulating speech and expression in the name of protecting the public, with its mandatory social media warning labels and criminal bans on AI-generated "nudification" – including barechested men – and election-related "deepfakes" that mock politicians.

The 8th U.S. Circuit Court of Appeals, which refused to block the deepfake law by reading an unwritten parody exception into it, wasn't so tolerant when it came to Minnesota's potential censorship of an election integrity group.

A three-judge panel ordered a lower court to block a voter-interference law as applied to the Minnesota Voters Alliance and its members as their case moves forward, leaving them free to publicly assert — without risking prosecution — that the Land of 10,000 Lakes violates its constitution by letting felons vote before their "civil rights" have been "restored."

"A group of Minnesotans want to express their belief that certain felons cannot vote. Can the state criminalize their speech? In denying a preliminary injunction, the district court thought so. We disagree," Judge David Stras wrote for the unanimous panel, nominated by presidents George W. Bush and Donald Trump, faulting the law as a prior restraint without "procedural safeguards."

House File 3 works in tandem with HF 28, which restores voting rights to felons whenever they are "not incarcerated for the offense" – even if they are still serving the sentence – by criminalizing the spread of certain information within 60 days of an election. Democratic Gov. Tim Walz signed both laws in 2023.

HF 3's "deceptive practices" section prohibits transmitting information that "intends to impede or prevent another person from exercising the right to vote" and is known to be "materially false," including "the qualifications for or restrictions on voter eligibility at an election." 

"The Alliance is worried that it already has a target on its back" from both state and county prosecutors, who can "pursue gross-misdemeanor charges" against alleged violators and civil actions "to prevent or restrain a violation," Stras's opinion says. The law also lets anyone "injured by" a supposed violation bring civil actions.

Anoka County buttressed MVA's case by bringing a counterclaim after it sued Attorney General Keith Ellison and Anoka County Attorney Brad Johnson, by seeking money damages and an injunction against MVA for violating the law, according to the voter integrity group.

ACLU supports election censorship law

The Upper Midwest Law Center and Liberty Justice Center, which represent MVA and its members, cheered the ruling. 

"The First Amendment does not allow the government to end an argument by threatening prosecution," UMLC President Doug Seaton said. 

Minnesota cannot "silence political debate simply because an election is near," LJC senior counsel Reilly Stephens said.

Ellison's office didn't answer queries for its response to the ruling.

Protect Democracy United counsel Cameron Kister accused the 8th Circuit panel of violating its own precedent. 

"The Minnesota Deceptive Practices Provision is not a statute that targets falsity and nothing more; it is a statute that targets falsity deployed to accomplish a harm the common law has recognized for centuries," the progressive activist wrote.

In line with its turn against free speech for select groups since the "Unite the Right" rally in 2017, the ACLU supported Ellison and Johnson in a friend-of-the-court brief, arguing the election censorship law is narrowly tailored and responded to "incidents of purposeful, targeted election disinformation aimed at preventing voters from exercising their constitutional right."

The elected Democrats already triumphed over MVA's constitutional challenge to the felon-voting law itself, which the Minnesota Supreme Court tossed on the grounds that the "taxpayer standing" asserted by MVA and its members "does not exist when a taxpayer simply seeks to generally restrain 'illegal action[s] on the part of public officials.'"

Minnesota can simply tell specific felons they're eligible to vote

Stras's opinion implies the panel would permanently block the law, at least as applied to MVA and its members, if there weren't still a pending counterclaim, meaning the court can only approve a preliminary injunction.

MVA is facing "actual or imminent" injury because the "time and money involved in defending against the counterclaim are actual injuries" and due to the likelihood a court will ''prevent or restrain' it from speaking or require it to pay money damages," the opinion says. The group faces justifiable "trepidation" that speaking will get it prosecuted.

Though the counterclaim "appears to be on hold" for now, the panel doesn't trust Anoka County not to resurrect it. The counterclaim "reflects a view among some government officials that the statute covers the Alliance’s speech," and the state has "argued throughout this litigation that the First Amendment does not protect what the Alliance has already said."

MVA undoubtedly has a First Amendment right to "speech on a matter of public concern," such as its opinion articles and public statements that seek to "persuade Minnesotans that felons cannot vote if they have yet to complete their sentences," regardless of whether it's correct about the state constitution, the opinion says.

The U.S. Supreme Court rejected a "similar argument" as the state and county's when it invalidated the Stolen Valor Act as unconstitutional, despite the fact that the federal law only criminalized false statements on a "knowable and certain" question – whether someone won the Congressional Medal of Honor.

The law might even ban MVA's claims in its legal briefs, Stras wrote. 

Both MVA and the government are relying on an "objective fact" – the state constitution and a statute, respectively – to support their opinions about when felons can vote: "The government cannot endorse one view and criminalize the other without implicating the First Amendment."

The state law "does not work like a fraud statute because [...] it targets mere knowing misstatements," with "no requirement that someone listening acts upon it to their detriment," the opinion says. 

False statements about voting have never been an "historic and traditional" category of unprotected speech, and SCOTUS has repeatedly "refused to expand" those categories to cover violent video games, animal-cruelty videos and "non-fraudulent, non-defamatory false statements," Stras wrote.

The law is clearly not the least restrictive way to fix the problem of disinformation on who can vote, according to the panel, because the government can use "counter speech" to confirm who is eligible. Minnesota "has uniquely within its possession the names and contact information of every felon on supervision," Stras wrote.