McCartney et al v. City of Welcome et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Victoria McCartney; Shane McCartney; 	Civil File No. 25-02245 (MJD/DJF)
Guerrilla Entertainment LLC,
d/b/a Midwest Drone Racing,
Plaintiffs,
v. 	MEMORANDUM OF LAW
AND ORDER
Taylor L. McGowan, in his
official capacity as Martin County Attorney,
or his successor; Martin County; City of
Welcome; Welcome Historical Society,
Defendants.
Elizabeth A. Nielsen, Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A.,
Counsel for Plaintiffs.
Kristin C. Nierengarten, Maxwell Scott Blosser, Squires Waldspurger & Mace,
P.A., Counsel for Defendants Taylor L. McGowan and Martin County.
I. 	INTRODUCTION
This matter is before the Court on Defendants Taylor L. McGowan’s and
Martin County’s (collectively “the County”) Motion to Dismiss. (Doc. 18.) Oral
argument was held via Zoom on October 1, 2025.
II. 	BACKGROUND
The following facts are relevant to the County’s motion to dismiss. The
Court takes all facts alleged in the Amended Complaint as true. Zutz v. Nelson,
601 F.3d 842, 848 (8th Cir. 2010). The Court also takes judicial notice of judicial
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opinions and public records. Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th
Cir. 2005). Accordingly, the Court need not accept pleaded facts when they are
contradicted by public records. See Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009)
(stating that “determining whether a complaint states a plausible claim is context
specific, requiring the reviewing court to draw on its experience and common
sense”) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A. 	Plaintiffs’ Relationship with the City of Welcome, Minnesota
Plaintiffs Shane and Victoria McCartney have resided in Martin County,
Minnesota for about five years. (Amend. Compl. ¶ 13.) Martin County is the
number one hog-producing county in Minnesota. (Id. ¶ 16.) In 2022, Plaintiffs
decided to participate in a partially government-sponsored program called
“Going Hog Wild in Martin County,” which distributes “dozens of artistically
painted cement pigs throughout the county as a promotion for Martin County.”
(Id. ¶¶ 14, 17-18.) Plaintiffs wanted to participate to support the community and
to promote their Midwest Drone Racing business. (Id. ¶ 15.)
At the March 2022 meeting of the Welcome Historical Society (“WHS”),
Plaintiffs’ gift of a pig statue to be located at the WHS Museum entrance was
unanimously accepted. (Id. ¶ 52.) Plaintiffs then spent approximately $2400 for
a cement pig and artwork on the pig that was to be located at the WHS Museum.
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(Id. ¶¶ 54-56 (including photographs of the pig statue), 70.) However, on May
19, 2022, one week before the public unveiling of the pig statues, Plaintiffs
received an email that stated the City of Welcome owned the building the WHS
Museum occupied and that the city council did not want the McCartney’s pig
placed at the WHS Museum. (Id. ¶¶ 60-61 (citing Pl. Ex. 2).)1
Shortly after receiving the email, Plaintiffs met with the WHS president
who stated the WHS “was not willing to ‘bite the hand that feeds them’ since the
City of Welcome owns the building WHS occupies, and the City of Welcome
pays the utilities for WHS.” (Id. ¶ 72.) Although Plaintiffs were free to place the
pig in the City of Welcome, they could not place it on city property. (Id. ¶ 77
(quoting July 19, 2022 City Council minutes).)
Plaintiffs did not believe they needed the City’s approval to place a pig at
the WHS Museum because they had previously purchased and installed new
front doors for the WHS without the City of Welcome’s approval. (Id. ¶¶ 38, 82.)
Plaintiffs have had other issues with the City, including lack of appropriate
responses to trespassing claims; Shane being told he could not run for city office;
1 Plaintiffs’ Exhibits are attached to the Amended Complaint at Docket Nos. 4-1
to 4-5. The Court will cite the Exhibits as “Pl. Ex. 1,” “Pl. Ex. 2,” etc., which are
the original numbers Plaintiffs gave the exhibits.
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being told they are not residents of Welcome and therefore cannot vote in the
city; and threats that their utilities will be cut off if they try to detach their
property from the City.2 (Id. ¶¶ 84-93.) Plaintiffs have filed statements with the
State Attorney General and the County Sheriff’s Office about these issues. (Id. ¶
91.) They feel they have been put in a “compromised situation” by the lack of
positive response to their efforts to contribute to the community. (Id. ¶¶ 92-93.)
In December 2022, due to concerns about lack of policing and paying taxes
to a city they could not vote in, Plaintiffs petitioned the City of Welcome for
detachment. 	(Id. ¶ 89.) The petition was denied. (Id.) Plaintiffs then filed
complaints against the City and City officials with the State and County, which
did not result in any criminal charges. (Id. ¶¶ 91, 92.)
B. 	The March 4, 2024 Fox Lake Township Board Meeting
On March 4, 2024, Plaintiffs attended a Fox Lake Township Board meeting
to gain the township’s support for detachment. (Amend. Compl. ¶ 95.) Diane
Glidden, Welcome city council member Elroy Glidden’s wife, was in the building
2 Under Minn. Stat. § 414.06, property owners may initiate a proceeding to detach
their property from within the municipality in which it is situated and, with
administrative law judge approval, have the property become part of the town
which it abuts.
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to assist another township with voting. (Id. ¶ 97; Def. Ex. A at 1.)3 There is a
history of ill feelings between Elroy Glidden and Plaintiffs. (Def. Ex. A at 1.)
Plaintiffs felt Ms. Glidden’s presence “deterred [them] from criticizing the
City of Welcome openly.” (Amend. Compl. ¶ 98.) Plaintiffs left after the Board
meeting, returned a bit later to vote, and Shane approached Ms. Glidden and
said, “You fu--ing bi-ch, you better sleep with one eye open.”4 (Def. Ex. A at 1.)
This frightened Ms. Glidden, who considered the statement a threat and
reported it to the Martin County Sheriff. (Amend. Compl. ¶¶ 100-01.)
C. 	The Prosecution of Shane McCartney
Based on the incident at the Fox Lake Township Board meeting, the Martin
County Attorney prosecuted Shane McCartney for disorderly conduct in
3 The County’s exhibits relate to Shane McCartney’s state prosecution under
Minn. Stat. § 609.72 subdiv. 1 and are therefore “embraced by the complaint”
and/or are “part of the public record,” and the Court may consider them when
deciding the instant motion. Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999).
4 The Amended Complaint states that “Shane McCartney made a conversational
comment to Dianne Glidden, one-on-one, to ‘sleep with one eye open.’” (Amend.
Compl. ¶ 99.) This representation is inaccurate. Shane admitted saying, and the
state court convicted him of saying, “You fu--ing bi-ch, you better sleep with one
eye open.” (Def. Ex. D at 1; Def. Ex. C at 3.) The Court takes judicial notice of
Shane’s plea and this judicial opinion, and declines to accept Plaintiffs’ labeling
of Shane’s statement as “conversational” when it is contradicted by his own
admission in state court and by a state court order. Stutzka, 420 F.3d at 760 n.2.
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violation of Minn. Stat. § 609.72 subdiv. 1(3) (“the statute”). (Amend. Compl. ¶
104.) In relevant part, the statute states the following:
Whoever does any of the following in a public or private place . . .
knowing, or having reasonable grounds to know that it will, or will
tend to, alarm, anger or disturb others or provoke an assault or
breach of the peace, is guilty of disorderly conduct, which is a
misdemeanor:
. 	. 	.
(3) engages in offensive, obscene, abusive, boisterous, or noisy
conduct or in offensive, obscene, or abusive language tending
reasonably to arouse alarm, anger, or resentment in others.
Minn. Stat. § 609.72 subdiv. 1(3).
Shane filed a motion to dismiss the charges, arguing that his statements to
Ms. Glidden did not constitute “fighting words.” (Def. Ex. A.) The court denied
his motion, holding that the “evidence possessed by the State would allow a jury
to find [Shane McCartney’s] statement rose to the level of fighting words when
considering not only the statement but the circumstances under which it was
uttered.” (Def. Ex. C at 5.) Shane pled guilty to disorderly conduct and on
September 10, 2024, was sentenced to a one-year stay of adjudication. (Def. Exs.
D, E; Amend. Compl. ¶ 105.)
D. 	Plaintiffs’ Claims
Plaintiffs assert that though they both want to continue using the phrase
“sleep with one eye open” in Martin County, they have ceased using it “and
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similar constitutionally protected non-fighting words” in one-on-one
conversations for fear of prosecution by the County Attorney for violating §
609.72 since this already happened to Shane. (Amend. Compl. ¶ 108.) Based on
these facts, Plaintiffs claim that Minn. Stat. § 609.72 is facially unconstitutional
(Count V) and unconstitutional as applied to Plaintiffs (Count VI). Although
both claims state that both Plaintiffs have ceased their use of “sleep with one eye
open” for fear of prosecution, only Victoria allegedly suffers damages as a result
of these violations. (Id. ¶¶ 218, 253.) Plaintiffs assert that Shane is currently
ineligible to bring First Amendment claims against the County. (Id. ¶ 190.)
III. 	DISCUSSION
The County seeks to dismiss both of Plaintiffs’ claims against it (Counts V
and VI) pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. 	Rule 12(b)(6) Legal Standard for a Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may
move the Court to dismiss a claim if, on the pleadings, a party has failed to state
a claim upon which relief may be granted. In reviewing a motion to dismiss, the
Court takes all facts alleged in the complaint to be true. Twombly, 550 U.S. at
555-56; Zutz, 601 F.3d at 848. However,
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[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Thus, although a complaint need not include
detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.
Zutz, 601 F.3d at 848 (citations omitted); Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. Thus, the Court need not
accept “conclusory allegations or legal conclusions drawn from the facts.” Glick
v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019) (citation omitted).
Generally, when considering a motion to dismiss, a court must ignore
materials outside of the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999). However, the court may consider some materials that
are (1) “part of the public record,” (2) “do not contradict the complaint,” or (3)
are “necessarily embraced by the pleadings.” Id. (citations omitted).
B. 	Relevant Minnesota Law
The following information provides a backdrop for the Parties’ arguments
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1. 	Matter of Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978)
In S.L.J., the Minnesota Supreme Court had to decide (1) Whether § 609.72
subdiv. 1(3), was unconstitutionally overbroad or vague on its face under the
First and Fourteenth Amendments to the United States Constitution; and (2) if so,
whether the statute could be narrowly construed to sustain its constitutionality.
263 N.W.2d at 416. The court explained that under Supreme Court precedent,
offensive-speech statutes have been found constitutional only if criminal
prosecution is permitted solely for “fighting words,” which are words that “are
inherently likely to provoke violent reaction”; would “by their very utterance
inflict injury or tend to incite an immediate breach of the peace”; or that “have an
immediate tendency to provoke retaliatory violence or tumultuous conduct by
those to whom such words are addressed.” Id. at 417-19 (citing, inter alia, Cohen
v. California, 403 U.S. 15, 20 (1971); Lewis v. New Orleans, 415 U.S. 130, 132
(1974); State v. Hipp, 213 N.W.2d 610, 614 (Minn. 1973)). The court held that §
609.72 subdiv. 1(3) was overbroad and unconstitutionally vague. Id. at 418-19.
However, the court upheld the constitutionality of the statute by narrowly
construing it to refer only to “fighting words.” Id. at 419 (citations omitted).
The court then had to decide if the words uttered in the case were fighting
words. At issue were the words, “Fu-k you pigs,” said by a 14-year-old girl who,
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along with a friend, had been stopped on the street and questioned by police. Id.
at 415. After being told to go home by the officers and getting approximately 15-
30 feet away from the squad car in which the officers were sitting, one girl turned
and said, “Fu-k you pigs.” Id. The officers arrested the girls for disorderly
conduct in violation of § 609.72 subdiv. 1(3).
The court stated,
The real test is whether, under the facts and circumstances of this
case, appellant’s mere utterance of these vulgar, offensive, insulting
words would tend to incite an immediate breach of the peace, are
inherently likely to provoke violent reaction, or had an immediate
tendency to provoke retaliatory violence or tumultuous conduct by
those to whom such words are addressed. The specific facts of the
case are also important because . . . whether words are “fighting
words” depends on the circumstances surrounding their utterance.
Id. at 419 (quotations and citations omitted).
The court held that although the girl’s words were intended to, and did,
arouse resentment in the officers, under this test, more than that is required
before a person can be convicted for mere speech and that there was no
reasonable likelihood that her words, uttered 15 to 30 feet away from the officers,
would tend to incite an immediate breach of the peace or provoke a violent
reaction by an ordinary, reasonable person. Id. at 419-20.
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2. 	1991 Amendment to § 609.72
In 1991, the Minnesota Legislature amended § 609.72. subdiv. 1(3). Minn.
Sess. Laws, 1991 Reg. Sess., Laws of Minn. 1991, Chap. 179—S.F. No. 525,
available at revisor.mn.gov/laws/1991/0/279/#laws.0.34.0 (last visited Nov. 13,
2025).
Therefore, the following version of § 609.72. § 1(3) was in effect in 1978, the
year S.L.J. was decided—relevant text in bold print:
(3) Engages in offensive, obscene, or abusive language or in
boisterous and noisy conduct tending reasonably to arouse alarm,
anger, or resentment in others.
The following version of § 609.72. § 1(3) was in effect in 2024, the year
Shane was prosecuted—relevant text in bold print:
(3) Engages in offensive, obscene, abusive, boisterous, or noisy
conduct or in offensive, obscene, or abusive language tending
reasonably to arouse alarm, anger, or resentment in others.
As this comparison shows, despite the 1991 amendment, no substantive
changes were made to the part of the statute that regulates speech, except, as the
County stated in its brief, for being moved around to accommodate a change to
the conduct proscribed by the statute. Accordingly, S.L.J. remains good law and
is relevant to the following discussion.
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C. 	Whether there is a Bar to the Court’s Exercise of Jurisdiction over
these Claims
The County argues that the Rooker Feldman abstention doctrine and
Younger v. Harris, 401 U.S. 37 (1971) preclude the Court from exercising
jurisdiction over these claims. (Doc. 20 at 11-14.)
The Rooker-Feldman abstention doctrine provides that, except for habeas
corpus petitions, lower federal courts lack subject matter jurisdiction over
challenges to state court judgments. Mosby v. Ligon, 418 F.3d 927, 931 (8th Cir.
2005) (citation omitted). “The Rooker–Feldman doctrine is applied to cases
brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments. The doctrine
does not apply to cases that raise independent issues.” MSK EyEs Ltd. v. Wells
Fargo Bank, Nat’l Ass’n, 546 F.3d 533, 539 (8th Cir. 2008) (citations omitted).
Similarly, in Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court
directed that a lower court abstain from hearing cases before it when (1) there is
an ongoing state judicial proceeding, (2) that implicates important state interests,
and (3) when that proceeding affords an adequate opportunity to raise any
relevant federal questions. Middlesex Cnty. Ethics Comm. v. Garden State Bar
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Ass’n, 457 U.S. 423, 432 (1982) (addressing Younger abstention requirement in
the context of bar disciplinary hearing). The Younger abstention doctrine is
grounded in considerations of federal-state comity, including “proper respect for
state functions, . . . and the notion that state courts are equally capable of
safeguarding federal constitutional rights.” Carlson v. Cnty. of Ramsey, Minn.,
No. CV 16-765 (SRN/BRT), 2016 WL 3352196, at *5 (D. Minn. June 15, 2016)
(cleaned up). Except in rare instances involving bad faith, harassment, or
unusual circumstances, none of which are present here, Younger abstention is
mandatory. P.G. v. Ramsey Cnty., 141 F. Supp. 2d 1220, 1228 (D. Minn. 2001).
1. 	The Parties’ Arguments
The County argues that Younger applies because (1) there is an ongoing
state proceeding involving the exact issue here: the application of § 609.72
subdiv. 1(3) to Shane’s statement: “sleep with one eye open”; (2) the matter
presents an important state issue: enforcement of criminal laws; and (3) Shane
had an adequate opportunity to raise the federal question in that state court
proceeding, as evidence by his motion to dismiss in the state district court. (Doc.
20 at 13.) The County states, “Plaintiffs all but acknowledge” that Younger is
relevant to their claims by “vaguely stating” that Shane is “jurisdictionally
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ineligible at the moment to bring the First Amendment claims set forth in the
Amended Complaint.” (Id. (quoting Amend. Compl. ¶¶ 105, 190, 226).) The
County also notes that the Rooker Feldman doctrine precludes federal courts
from exercising jurisdiction over claims that are “inextricably intertwined” with
state-court decisions. (Id. at 12 (quoting Simes v. Huckabee, 354 F.3d 823, 827
(8th Cir. 2004)) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)).)
In addition, the County argues that although Plaintiffs attempt to sidestep
the jurisdictional issue in the Amended Complaint,
by purporting Victoria McCartney, specifically, believes the statute
is unconstitutional and alleging only she has been injured by the
constitutional infringement, suggesting, without directly saying, that
these claims are being brought specifically on her behalf, [a]ny such
assertion . . . is belied by the factual allegations in the Amended
Complaint, which contend that Shane McCartney’s First
Amendment conduct and rights has [sic] been impacted just like
Victoria McCartney’s, and their Prayer for Relief, which seeks broad
relief on behalf of Plaintiffs generally, including a declaration that
Defendants have violated Plaintiffs’ constitutional rights.
(Id. at 13 (citations omitted).) The County asserts that Plaintiffs’ claims are
“nothing more than a thinly veiled attempt to undermine the state court criminal
proceedings against Shane McCartney” when this Court lacks jurisdiction to do
so. (Id. at 14.) Accordingly, the County asks the Court to dismiss the claims on
jurisdictional grounds under Fed. R. Civ. P. 12(b)(1). (Id.)
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Plaintiffs merely respond that neither the Rooker Feldman abstention
doctrine nor Younger prevent the Court from exercising jurisdiction because
Victoria is the Plaintiff bringing these claims.
2. 	Analysis
While the County is correct that the Amended Complaint mentions both
Plaintiffs several times, only Victoria seeks damages for Claims V and VI.
(Amend. Compl. ¶¶ 219, 254.) Moreover, it is unclear that Younger would even
apply here because it appears there is no longer an ongoing state proceeding
involving the application of § 609.72 to Shane’s statement “sleep with one eye
open.” On September 10, 2024, Shane was sentenced to a one-year stay of
adjudication with dismissal following successful completion of one-year of
unsupervised probation. (Def. Ex. E at 1.) The Court’s inquiry reveals that there
have been no documents filed in the state case since the sentencing order. Thus,
all indications are that Shane successfully completed his stay of adjudication and
his state case was ripe for dismissal as of September 10, 2025.
As far as Rooker Feldman goes, although Plaintiffs complain about what
happened to Shane, they do not challenge the state court judgment or invite this
Court to review the judgment. See MSK EyEs, 546 F.3d at 539. The Amended
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Complaint focuses on the possibility of future criminal prosecutions. (Amend.
Compl. ¶¶ 192, 229 (stating that Plaintiffs what to use the phrase “sleep with one
eye open” in one-on-one conversations in Martin County, but will not do it for
fear of prosecution under § 609.72); ¶¶ 217, 252 (stating that the Martin County
Attorney’s threat of future prosecution under § 609.72 has caused damage to
Victoria who has ceased using the phrase “sleep with one eye open” and similar
“non-fighting words” in Martin County).) Plaintiffs ask the Court to find §
609.72 subdiv. 1(3) unconstitutional based on its prohibition on words other than
“fighting words”; on the holding in State v. Hensel that § 609.72 subdiv. 1(2) is
unconstitutional, 901 N.W.2d 166 (Minn. 2017); and on Plaintiffs’ theory that
subdivisions 1(2) and 1(3) are not severable. (Id. ¶¶ 214, 216, 239, 249-50.) None
of this fits under Rooker Feldman. In addition, the County’s reliance on the
Amended Complaint’s prayer for relief that seeks a declaration that Defendants
have violated Plaintiffs’ constitutional rights is misplaced. The Amended
Complaint contains constitutional claims against Defendants other than the
County and the prayer for relief does not distinguish among Defendants. (See
Amend. Compl. Counts I, II, III, IV, VII.)
There is no jurisdictional bar to the Court deciding this matter.
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D. 	Whether Plaintiffs have Standing to File their Challenges
The federal courts are courts of limited jurisdiction and therefore Article III
standing is a threshold issue in every federal case. See Nebraska v. Biden, 52
F.4th 1044, 1046 (8th Cir. 2022) (citing United States v. One Lincoln Navigator
1998, 328 F.3d 1011, 1013 (8th Cir. 2003)). Plaintiffs argue that establishing
standing for such a challenge should not be difficult and therefore Victoria has
standing to bring her pre-enforcement challenges to § 609.72 subdiv. 1(3). (Doc.
25 at 12 (citing Christian Action League of Minn. v. Freeman, 31 F.4th 1068, 1075
(8th Cir. 2022)) (Smith, C.J., dissenting).) The County, however, asserts that
Plaintiffs do not have standing to bring either a facial or an as-applied First
Amendment challenge to § 609.72 subdiv. 1(3) against the County.
1. 	Legal Standards
To establish Article III standing for a constitutional challenge to a statute
on First Amendment grounds, Plaintiffs must satisfy the following requirements.
(1) an injury in fact, (2) a causal relationship between the injury and
the challenged conduct, and (3) that a favorable decision will likely
redress the injury. Plaintiffs bear the burden of establishing these
elements.
. 	. 	.
Plaintiffs satisfy the injury-in-fact element if they allege an intention
to engage in a course of conduct arguably affected with a
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constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.
When the alleged injury is a chill on constitutionally protected
speech, the First Amendment gives a more lenient standing
requirement to pre-enforcement challenges, such as this one. When
a party brings a pre-enforcement challenge to a statute that both
provides for criminal penalties and abridges First Amendment
rights, a credible threat of present or future prosecution itself works
an injury that is sufficient to confer standing.
Animal Legal Def. Fund v. Reynolds, 89 F.4th 1071, 1077 (8th Cir. 2024) (cleaned
up) (citations omitted) (addressing facial challenge); Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157-58 (2014) [hereinafter “SBA”]; 281 Care Comm. v.
Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (stating same three elements to
establish standing for as-applied First Amendment challenge).
A plaintiff can experience two types of injuries-in-fact to support standing.
One type of injury arises when a plaintiff wishes to engage in conduct that is
affected by a constitutional interest, but is proscribed by the statute, and there is
a credible threat of prosecution. Dakotans for Health v. Noem, 52 F.4th 381,
386 (8th Cir. 2022). “The second injury occurs when a plaintiff self-censors,”
which means that the plaintiff would like to engage in speech but is chilled by
existence of the statute from doing so. Id. (citation omitted). In this context, the
decision to chill speech in light of the challenged statute must be objectively
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reasonable. Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794–95
(8th Cir. 2016) (quoting 281 Care Comm., 638 F.3d at 627). In the First
Amendment context, plaintiffs need not wait until they are prosecuted—a
chilling effect may constitute an injury for standing purposes. Zanders v.
Swanson, 573 F.3d 591, 593 (8th Cir. 2009). That said, plaintiffs do not suffer an
Article III injury unless they “must either make significant changes . . . to obey
the [statute], or risk a criminal enforcement action by disobeying the [statute].”
Id. at 594 (ellipses in original) (quoting St. Paul Area Chamber of Com. v.
Gaertner, 439 F.3d 481, 487 (8th Cir. 2006)). A plaintiff “must face a credible
threat of present or future prosecution under the statute for a claimed chilling
effect to confer standing to challenge the constitutionality of a statute that both
provides for criminal penalties and abridges First Amendment rights.” Zanders,
573 F.3d at 593. “[P]ersons having no fears of state prosecution except those that
are imaginary or speculative, are not to be accepted as appropriate plaintiffs.”
281 Care Comm., 638 F.3d at 627 (quoting Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)).
For an as-applied challenge, plaintiffs must show that third parties will be
affected differently from plaintiffs. Josephine Havlak Photographer, Inc. v.
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Village of Twin Oaks, 864 F.3d 905, 912 (8th Cir. 2017) (citing, inter alia, Snider v.
City of Cape Girardeau, 752 F.3d 1149, 1157 (8th Cir. 2014)) (“[T]he fact one can
conceive of an impermissible application of a statute is not sufficient to render it
susceptible to an overbreadth challenge.”). In addition, an injury must be
concrete and particularized, actual or imminent, not just hypothetical. SBA, 573
U.S. at 158 (quotation omitted).
2. 	Plaintiffs’ Arguments
Plaintiffs argue there is a credible threat of prosecution against Victoria
and other Minnesotans and that Victoria has alleged a desire to engage in speech
that she knows puts her at risk of prosecution in Martin County: continued use
of ”the non-threatening phrases criminalized by § 609.72.” (Doc. 25 at 14.)
Plaintiffs assert that because of the text of § 609.72, people like Victoria are
similarly in danger of being prosecuted for using non-threatening phrases. (Id.
(citing Amend. Compl. ¶ 212).) Plaintiffs therefore argue that third parties “are
affected by the statute just as Victoria is.” (Id.)
Plaintiffs also note that the threat of future prosecution is real because
there is a recent history of enforcement of the statute against Shane and because
the County Attorney intends to continue enforcing the statute. (Id. at 14-15
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(citing Doc. 20 at 8, 11, 16, 24).) Therefore, she has chosen to self-censor and chill
her speech rather than incur the hassle and expense that attends criminal
prosecution under § 609.72 subdiv. 1(3). Plaintiffs assert that others likewise
could reasonably read the statute, fear criminal prosecution, and chill their own
speech in political situations, such as protests where people may want to shout
“offensive and berating messages about Muslims, Jewish people and women, but
refrain only for fear of criminal enforcement of § 609.72.” (Id. at 15-16, 18.)
They argue that the County Attorney’s “vigorous enforcement” of the
statute presents Victoria and others with a real danger of prosecution “for
personally expressing their political, social, and religious beliefs in the way they
prefer. In this case, because of the text of § 609.72 itself, Victoria’s reasonable fear
of prosecution has caused her to be silent.” (Id. at 16.) Plaintiffs state that
because of Shane’s “prosecution under § 609.72 for a statement that had no true
threat of violence and no incitement, Victoria’s reasonable fear of prosecution for
the same, or similar speech, has been chilled by § 609.72 enforcement that would
likely be unconstitutional if applied to her in Martin County.” (Id.)
Plaintiffs rely on SBA, in which the Supreme Court held that a pro-life
advocacy organization had standing to challenge an Ohio statute that prohibited
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certain false claims made during the course of a political campaign. The
petitioners in SBA had standing for pre-enforcement review because (1) they
alleged “an intention to engage in a course of conduct arguably affected with a
constitutional interest. . . . [by pleading] specific statements they intend[ed] to
make in future election cycles”; (2) the statute at issue arguably proscribed the
future conduct they wished to challenge because the statute swept broadly and
covered the subject matter of the petitioners’ intended speech; and (3) the threat
of future enforcement of the statute was substantial, most obviously because
there was a history of past enforcement against the SBA in a recent election cycle
and “past enforcement against the same conduct is good evidence that the threat
of enforcement is not ‘chimerical.’” 573 U.S. at 161-64 (quotations omitted).
3. 	Analysis
Plaintiffs do not have standing to bring their claims. In brief, Plaintiffs’
purported chilling of their constitutionally-protected speech is objectively
unreasonable because § 609.72 subdiv. 1(3) only applies to fighting words. If
Plaintiffs use “non-fighting words,” they will not be prosecuted. Likewise,
Plaintiffs’ purported chilling of their constitutionally-protected speech based on
Shane’s prosecution is objectively unreasonable for the same reason. Plaintiffs
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can use “sleep with one eye open,” “watch your back,” and any other phrases
they want in their “one-on-one” conversations without fear of prosecution as
long as they do so in a context that does not amount to a fighting words
situation. Plaintiffs completely ignore S.L.J.’s holding that context matters. 263
N.W.2d at 419-20.
Moreover, their fear of prosecution based on the County’s “vigorous
enforcement” of § 609.72 subdiv. 1(3) is unsupported because the only
prosecution cited is the County’s prosecution of Shane for disturbing the peace
by using fighting words. Contrary to Plaintiffs’ assertion, Shane was not
prosecuted for merely using the words “‘sleep with one eye open’ in a one-on-
one conversation.” (Amend. Compl. ¶¶ 27, 104, 189, 225.) He was prosecuted
for calling the wife of a city council member with whom he had a bad
relationship a “fu--ing bi-ch” before telling her to “sleep with one eye open.” In
context, this was not protected speech and violated § 609.72 subdiv. 1(3). (See
Def. Ex. C at 5 (court order finding the evidence would allow a jury to find
Shane’s statement “rose to the level of fighting words when considering not only
the statement but the circumstances under which it was uttered”).) Therefore,
there is no credible risk of prosecution for merely using the pedestrian phrases
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“sleep with one eye open,” “watch your back,” or something similar in one-on-
one conversations. See Animal Legal Def. Fund, 89 F.4th at 1077.
In addition, Plaintiffs present no factual context for Victoria’s use of “sleep
with one eye open,” “watch your back,” or similar phrases that establishes that
Victoria is self-censoring for fear of prosecution. See id. Simply stating that
Victoria does so will not suffice. An imaginative or speculative belief that
Victoria may be charged under the statute is not enough to confer standing. See
281 Care Comm., 638 F.3d at 627.
Furthermore, this case can be distinguished from SBA. The statute in that
case was broad. Section 609.72 subdiv. 1(3) is narrowly-construed to refer only to
fighting words to save it from being overbroad. See S.L.J., 263 N.W.2d at 419.
Moreover, although Plaintiffs outline a situation in which third parties might
choose to chill their speech, such as political protests, which might be different
from that in which Victoria might chill her speech, Plaintiffs have not established
that third parties will be affected by the statute in a different way. In fact,
Plaintiffs specifically state that third parties “are affected just as Victoria is.”
(Doc. 25 at 14.) Importantly, this argument is only in Plaintiffs’ brief. The
Amended Complaint only states that applying the statute to “the McCartneys”
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or “Victoria McCartney” is unconstitutional. The closest the Amended
Complaint comes to mentioning third parties is stating that “people like Victoria
McCartney are in danger of being prosecuted for using the non-threatening
phrase ‘sleep with one eye open’” or similar phrases. (Amend. Compl. ¶¶ 212,
246.) Here, the Court’s task is to review the Amended Complaint. Fed. R. Civ. P.
12(b)(6); Zutz, 601 F.3d at 848.
Therefore, while there is a more lenient standing requirement when the
alleged injury is a chill on constitutionally-protected speech, Plaintiffs do not
meet that requirement here because only a credible, objectively reasonable threat
of present or future prosecution can constitute an injury sufficient to confer
standing. See Animal Legal Def. Fund, 89 F.4th at 1077; Zanders, 573 F.3d at 593-
94. Here, the threat is neither credible nor objectively reasonable.
In conclusion, Plaintiffs have asserted neither a credible threat of future
prosecution nor that any decision to chill their speech is credible or objectively
reasonable to establish an injury-in-fact. They have ignored the context
requirement from S.L.J. to their peril. If Plaintiffs want to engage in one-on-one
conversations, they need not “either make significant changes . . . to obey the
[statute], or risk a criminal enforcement action by disobeying” it, and therefore,
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do not or will not suffer an Article III injury. Zanders, 573 F.3d at 594.
Moreover, Plaintiffs have not credibly shown how others will be chilled from
peacefully protesting or exercising their political or religious speech rights.
Accordingly, the claims against the County Defendants will be dismissed with
prejudice for lack of standing.
IV. 	ORDER
Based upon the files, records, and proceedings herein, IT IS HEREBY
ORDERED:
1. 	Defendants Taylor L. McGowan’s and Martin County’s Motion to
Dismiss [Doc. 18] is GRANTED; and
2. 	Claims V and VI of the Amended Complaint are DISMISSED with
prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: 	November 14, 2025 	s/Michael J. Davis
Michael J. Davis
United States District Court
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