There is no First Amendment to marching on a freeway

from State v. DornfeldDecided yesterday by the Minnesota Court of Appeals (presiding Judge Francis Connolly, joined by Judges Michelle Larkin and Randall Sleater):

Appellant challenges his petty-misdemeanor conviction for being a pedestrian on a controlled-access highway, arguing… [among other things that] The law under which he was convicted violated the First Amendment, he was singled out for discriminatory prosecution, and his trial was obstructed by government obstruction….

In November 2021, appellant Tess Dornfeld was charged with a minor misdemeanor for being a pedestrian on a controlled-access highway in November 2020, when she was participating in a protest as part of a group of approximately 600 people who walked on I-94, a controlled-access highway. Highway…

Appellant argues that “his arrest, trial, and conviction violated his constitutional right to free speech” because: (1) his conduct on I-94, a controlled access highway, constituted protected speech; (2) Minn. Stat. § 169.305, subd 1(c) (2022), provides that the commissioner of transportation may prohibit or regulate the use of controlled access highways by pedestrians if that use is inconsistent with the normal and safe flow of traffic, a state restriction of free speech; (3) the constitutionality of such a regulation is subject to intermediate scrutiny, meaning that the regulation must be narrowly tailored to serve a substantial government interest and leave open adequate alternative means of communication, and (4) police action in arresting the appellant. Not narrowly tailored to the government’s interests as the police did not allow the protesters to leave I-94.

But appellant does not explain his underlying view that his right to free speech overrides the right of travelers on a controlled-access highway to travel in safety, nor does he explain why his arrest deprived him of alternative channels of communication. He has not shown that his free-speech rights were violated by the commissioner’s right to regulate pedestrian use of controlled-access highways or by police activity in enforcing that regulation….

Appellant argues that his “arrest, trial, and conviction are due process and equal protection to an elective prosecution for violating his constitutional rights.” A claim of selective prosecution requires a claimant to make a prima facie case by showing a clear preponderance of the evidence that (1) the claimant was singled out for prosecution when others were not and (2) based on considerations such as the government’s discriminatory race, religion, or desire to impede the exercise of an individual’s constitutional rights. The application was based on malice or bad faith. The defendant bears a “heavy burden” of establishing this standard.

District Court Appellant in that conclusion

The election did not mention a prima facie case of prosecution. He has not established that other protestors like him were not charged and singled out. Nor has he shown that the prosecution in this case was in bad faith or based on impermissible considerations with intent to prevent the exercise of his constitutional rights.

Appellant does not dispute this conclusion.

Instead, he argued in the appeal that the alleged election trial “singled out him and other protesters for arrest … in a way that no other peaceful marcher had ever experienced.” As mentioned earlier, the testimony of a veteran state trooper countered this argument, explaining that, for the first time, sufficient resources were available to issue citations to all participants in a large protest. Appellant does not prima facie file a selective-prosecution claim with his co-protesters or those who engaged in earlier protests.

Appellant offered two arguments to support his government-position claim: first, that other protesters in previous protests had not been prosecuted and he relied on the government’s inaction in that regard, and second, that the governor, attorney general, and mayor had encouraged it. Peaceful protests in May 2020. In a well-written opinion, the district court said it could not conclude that “the failure to cite every highway protester in recent Minnesota history amounts to an affirmative governmental action that now renders Minn. Stat. § 169.305 inapplicable” that the state in May 2020 And the public statements made by local officials encouraging protesters to demonstrate peacefully … are affirmative and false misrepresentations that led protesters to reasonably believe they were free to march on I-94 six months after the November protest. 2020 election.”

Appellant now argues that “[a]The result of the government’s consultation and informed consent indicating that a peaceful demonstration on a public street is legal, this prosecution must be stopped.” He supports his argument only by what MG would have testified and his opinion on the demand to give this testimony. Lawfulness of Peaceful Demonstration on Public Streets regarding “public consultation, or at least the extent of knowing consent” and therefore, “the State must be precluded from judging.” But appellant has not presented any facts showing that public officials, knowing that pedestrian demonstrations were not permitted on controlled-access highways, affirmatively Misleading protestors into believing they are allowed to….

Sounds about right to me.