Minnesota's woes just keep piling up. It's bad enough to be saddled with Tim Walz as governor and the odious Keith Ellison as Attorney General, but it seems Minnesota keeps getting smacked down in the courts as well. In the latest exciting episode of "Minnesota's Progressive Failures," the 8th Circuit Court of Appeals has delivered the Land of 10,000 Lakes a smackdown in a First Amendment case.
The whole thing arose out of an issue over the voting rights of convicted felons, and a political action group's statements on that very subject.
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."
This isn't a matter of the rightness of allowing convicted felons to vote, once they have paid their debt to society and had their rights restored. It's about a political action group asserting that it's not allowed for convicted felons to vote before their civil rights have been restored.
Since 2023, Minnesota has allowed convicted felons to vote once they are no longer incarcerated for the felony conviction and so long as they are not under any court order that prohibits them from voting. This includes felons who have been released on parole. But that's not the issue; there is a First Amendment issue involved, and Minnesota appears to be trying to stomp on the free speech of the Minnesota Voters Alliance.
"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.
The ACLU, amazingly for an organization that once at least paid lip service to freedom of speech, supported both laws.
Look, one doesn't stop enjoying the right to unfettered expression of political opinions just because there's an election coming up. And the Minnesota Voter Alliance's criticism of Minnesota's laws and practices in this matter should not, must not, be restricted by time. There is a matter of principle at stake here; rights are not suspended before elections. If the Minnesota Voter Alliance is free to make an assertion 61 days before an election, then they are free to make that same assertion 59 days before an election. And if the assertion they make is factually incorrect, then let the State of Minnesota or other interested party correct it. But slamming the door on their free speech isn't the answer.
Fortunately, the 8th Circuit would seem to agree, as summed up nicely in its ruling:
Consider the problem here. On one side, the Alliance relies on a provision of the Minnesota Constitution, an objective fact, to support its opinion that felons still serving their sentences cannot vote. On the other, Minnesota and Anoka County point to a statute, another objective fact, to support their opinion that felons can vote once they leave prison, whether they are on supervised release or not. The government cannot endorse one view and criminalize the other without implicating the First Amendment. See R.A.V., 505 U.S. at 392 (explaining that the government cannot “license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules”).