Press Release

Attorney General Ellison defends Minnesotans from video harassment

Intervenes to defend constitutionality of state anti-harassment law in federal lawsuit filed by plaintiff who has videotaped congregants at Bloomington mosque that was bombed in 2017

April 24, 2020 (SAINT PAUL) — Minnesota Attorney General Keith Ellison has filed a memorandum in federal court to defend the constitutionality of a Minnesota state law that bans harassment by videotaping and other means. Attorney General Ellison intervened in a lawsuit that challenges the law filed by plaintiff Sally Ness, who has videotaped congregants at Dar al-Farooq mosque in Bloomington without their consent, causing those congregants and their children to feel intimidated and afraid. Attorney General Ellison’s memorandum supports the motion by the defendants — the City of Bloomington, Hennepin County Attorney Mike Freeman, and two Bloomington police officers — to dismiss the lawsuit, and requests that the court find the state law constitutional and dismiss the plaintiff’s claims with prejudice.

Dar al-Farooq was bombed by right-wing extremists in August 2017: two of the suspects have pled guilty and are awaiting sentencing, while the third is awaiting trial.

Plaintiff Ness has filmed and otherwise documented the activities of congregants and school children at Dar al-Farooq without their consent for a number of years. The clear language of the state anti-harassment law defines “harass” as “to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.” One of the activities prohibited under the law is “follow[ing], monitor[ing], or pursu[ing] another, whether in person or through any available technological or other means.”

“It’s my job to help all Minnesotans live with dignity and respect. Living with dignity and respect looks like being able to go to any public place you choose, including your house of worship, without the fear or threat that you’ll be harassed, intimidated, or persecuted for who you are or whom you pray to. I’m defending the constitutionality of our law that protects Minnesotans of all faiths and backgrounds from that kind of harassment. Minnesotans want everyone to live with the same dignity and respect that they want for themselves.”

In the memorandum, Attorney General Ellison argues that contrary to the plaintiff’s argument, Minnesota’s anti-harassment law “is not unconstitutionally overbroad because any protected speech that may be regulated by the statute is insubstantial when compared with the statute’s plainly legitimate regulation of harassing and stalking conduct,” nor is it “void for vagueness in violation of the Fourteenth Amendment because it makes it reasonably clear what conduct falls within its scope.”

Because the law regulates conduct, not speech, it does not violate the First Amendment. The law is also content-neutral. This means that it “applies to Plaintiff’s behavior of following, monitoring, or pursuing another without regard to the content, topic, or viewpoint of any message Plaintiff intends to convey. For example, if Plaintiff uses a recording device to monitor individuals at Dar al-Farooq in a manner that violates the Harassment Statute it would apply whether she intended to use those recordings to create a blog post about how Dar al-Farooq is violating zoning regulations, a story about the benefits of religious education, or a movie about the history of Bloomington.”

In addition, the law provides that in order for conduct to be criminal, it must be conduct “that an objectively reasonable person knew or should have known would cause the victim under the circumstances to feel frightened or threatened.” Dar al-Farooq mosque has already been the victim of a violent hate crime — the August 2017 bombing — which alone gives its congregants reason to fear for their safety. “The addition of this objective standard ensures the Harassment Statue is not unconstitutionally vague or applied and enforced subjectively solely based on the reaction of the victim,” Attorney General Ellison asserts in the memorandum.

Attorney General Ellison also points out that the Minnesota Court of Appeals in a 2009 decision known as Stockwell, “has already concluded the language of the Harassment Statute is not unconstitutionally vague.” For this and other reasons, he asks the federal court to reach the same conclusion.

In addition to challenging the state anti-harassment law, plaintiff Ness is also challenging the constitutionality of a City of Bloomington ordinance that makes it illegal to take video of children in public parks. Attorney General Ellison’s intervention addresses only the constitutionality of the state law, not the city ordinance. Ness has never been arrested or cited for violating either the law or the ordinance.