United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-1558

___________

281 Care Committee; Ron Stoffel; *

W.I.S.E. Citizen Committee; Victor *

E. Niska; Citizens for Quality *

Education; Joel Brude, *

*

Plaintiffs/Appellants, *

 *

v. * 

*

Ron Arneson, in his official capacity *

as County Attorney for *

Blue Earth County, Minnesota, or his * Appeal from the United States

successor; Mike Freeman, in his * District Court for the

official capacity as County Attorney * District of Minnesota.

for Hennepin County, Minnesota, *

or his successor; Michael Junge, in his *

official capacity as County Attorney *

for McCleod County, Minnesota, or his *

successor; Tom N. Kelly, in his official *

capacity as County Attorney for Wright *

County, Minnesota, or his successor; *

Lori Swanson, in her official capacity *

as the Minnesota Attorney General or *

her successor, *

*

Defendants/Appellees. *

 ___________

Submitted: November 17, 2010

Filed: April 28, 2011

___________
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Before SMITH, BEAM and BENTON, Circuit Judges.

___________

BEAM, Circuit Judge

In this First Amendment challenge to a Minnesota law that makes it a crime to

knowingly or with reckless disregard for the truth make a false statement about a

proposed ballot initiative, plaintiffs appeal: (1) the district court's dismissal of

plaintiffs' complaint for lack of subject-matter jurisdiction; (2) the district court's

alternate holding that it would dismiss plaintiffs' complaint for failing to state a claim

upon which relief could be granted; and (3) the district court's denial of plaintiffs'

motion for summary judgment. We reverse the dismissal of plaintiffs' complaint and

remand for proceedings consistent with this opinion. 

I. BACKGROUND

Plaintiffs are three Minnesota-based grass-roots-advocacy organizations along

with their corresponding leaders. Each organization was founded to oppose schoolfunding ballot initiatives, which Minnesota law authorizes individual school boards

to propose. These ballot initiatives ask county taxpayers to approve bond hikes or tax

levies designed to increase funding to the local school districts. Plaintiffs claim that

a provision of the Minnesota Fair Campaign Practices Act (FCPA) inhibits plaintiffs'

ability to speak freely against these ballot initiatives and, thereby, violates plaintiffs'

First Amendment rights. Defendants are four Minnesota county attorneys and the

Minnesota attorney general, all sued in their official capacities.

In relevant part, the challenged provision of the FCPA provides: 

A person is guilty of a gross misdemeanor who intentionally participates

in the preparation, dissemination, or broadcast of paid political

advertising or campaign material . . . with respect to the effect of a ballot
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question, that is designed or tends to . . . promote or defeat a ballot

question, that is false, and that the person knows is false or

communicates to others with reckless disregard of whether it is false.

Minn. Stat. § 211.B06, subd. 1 (2008). Minnesota has a long history of regulating

knowingly false speech about political candidates; it has criminalized defamatory

campaign speech since 1893. However, the FCPA's regulation of issue-related

political speech is a comparatively recent innovation. Minnesota did not begin

regulating knowingly false speech about ballot initiatives until 1988. Between 1988

and 2004, the FCPA's regulation of speech regarding ballot initiatives allowed for

only one enforcement mechanism: mandatory criminal prosecution of alleged

violators by county attorneys. In 2004, the Minnesota legislature amended the FCPA

to provide that alleged violations of section 211.B06 initially be dealt with through

civil complaints filed with the Office of Administrative Hearings (OAH). The revised

version of section 211.B06 authorizes any person, organization or agency to file a

complaint with the OAH, and gives county attorneys discretion to determine whether

to bring criminal charges after civil proceedings are complete. 

In 2006, the B.U.I.L.D. Citizen Committee–a citizen group that campaigned in

support of a school-funding ballot initiative in Howard Lake, Waverly-Winsted

Independent School District–filed an OAH complaint against plaintiffs W.I.S.E.

Citizen Committee and its Chairperson Victor Niska. The complaint alleged that

W.I.S.E. and Niska prepared and distributed, in violation of section 211.B06,

campaign materials containing statements of fact that W.I.S.E. and Niska knew to be

false. After reviewing the complaint, an OAH judge found that the complainants had

established a prima facie case against W.I.S.E. and Niska and scheduled an

evidentiary hearing. Following the hearing several months later, an OAH panel

dismissed the complaint. W.I.S.E. and Niska spent over $1,900 in legal fees

defending against the complaint.
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In the fall of 2007, plaintiff 281 Care Committee and its leader plaintiff Ron

Stoffel campaigned against a school-funding ballot initiative proposed by the

Robbinsdale Public School District. After a vigorous campaign, the ballot initiative

was rejected. On November 8, 2007, the Superintendent of the Robbinsdale Public

School District told statewide media that the district was investigating 281 Care

Committee and exploring ways to deal with the "false" information it spread about the

initiative. Plaintiff Stoffel alleges that he interpreted these statements, which were

published in the Minnesota Star Tribune and played on Minnesota Public Radio, as

a warning that litigation would follow if 281 Care Committee continued using the

same tactics to oppose ballot initiatives. 

All plaintiffs allege that, given the above-described occurrences, plaintiffs have

been chilled from, and continue to be chilled from, vigorously participating in the

debate surrounding school-funding ballot initiatives in Minnesota. In particular,

plaintiffs allege they declined to participate in a 2008 campaign regarding a schoolfunding ballot initiative for the Orono School District because they feared

repercussions arising from section 211.B06.

In the wake of these events, plaintiffs filed a suit in federal district court,

alleging that section 211B.06 violates the First Amendment. Plaintiffs moved for

summary judgment and defendants filed a motion to dismiss for lack of subject-matter

jurisdiction and failure to state a claim. The district court granted defendants' motion,

holding that plaintiffs lacked standing and that their claim was not ripe. The district

court also held that, even if it had subject-matter jurisdiction, it would dismiss

plaintiffs' complaint for failing to state a claim upon which relief could be granted.

The court denied plaintiffs' motion for summary judgment, finding it was moot in light

of the court's ruling. Plaintiffs appeal. 
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II. DISCUSSION

This case involves a fundamental question about the ability of a state, under the

First Amendment, to enact a statute restricting a category of political speech–namely,

knowingly or recklessly false speech about a ballot initiative–without demonstrating

that the enacted statute is narrowly tailored to a compelling state interest. The court

below held that plaintiffs' challenge to section 211.B06 was not justiciable because

plaintiffs lacked standing and their claim was not ripe. The district court also held,

in the alternative, that if plaintiffs did have standing, their complaint failed to state a

claim because section 211.B06 fell outside the protection of the First Amendment.

We reject each of these holdings. 

A. Justiciability

Those who invoke federal subject-matter jurisdiction must "demonstrate an

actual, ongoing case or controversy within the meaning of Article III of the

Constitution." Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 789-90 (8th

Cir. 2004) (internal quotations omitted). We review de novo the district court's

dismissal of plaintiffs' complaint for lack of federal subject-matter jurisdiction.

Hansen v. United States, 248 F.3d 761, 763 (8th Cir. 2001).

Here, the district court held that it lacked subject-matter jurisdiction because (1)

plaintiffs lack Article III standing, and (2) plaintiffs' claim is not ripe. On appeal,

defendant Lori Swanson, the Minnesota Attorney General, additionally argues, as she

did below, that this court lacks subject-matter jurisdiction over the claim against her

because she is entitled to Eleventh Amendment immunity. We reject these arguments

and conclude that plaintiffs' claims are justiciable and that subject-matter jurisdiction

is proper in federal court.
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a. Article III Standing

Standing is always a "threshold question" in determining whether a federal

court may hear a case. Eckles v. City of Corydon, 341 F.3d 762, 767 (8th Cir. 2003).

A party invoking federal jurisdiction has the burden of establishing that he has the

right to assert his claim in federal court. Schanou v. Lancaster Cnty. Sch. Dist. No.

160, 62 F.3d 1040, 1045 (8th Cir. 1995). This requires establishing three elements:

(1) that he suffered concrete, particularized injury in fact; (2) that this injury is fairly

traceable to the challenged action of defendants; and (3) that it is likely that this injury

will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.

555, 559-61 (1992). The court below concluded that plaintiffs failed to establish that

they had suffered an injury in fact. On appeal, defendants also argue that plaintiffs

lack standing because plaintiffs have not established that any injury they did suffer is

likely to be redressed by a favorable decision. We reject these arguments.

To establish injury in fact for a First Amendment challenge to a state statute,

a plaintiff need not have been actually prosecuted or threatened with prosecution. St.

Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 487 (8th Cir. 2006).

Rather, the plaintiff needs only to establish that he would like to engage in arguably

protected speech, but that he is chilled from doing so by the existence of the statute.

Self-censorship can itself constitute injury in fact. See Virginia v. Am. Booksellers

Ass'n, 484 U.S. 383, 393 (1988). Of course, self-censorship based on mere allegations

of a "subjective" chill resulting from a statute is not enough to support standing, Laird

v. Tatum, 408 U.S. 1, 13-14 (1972), and "persons having no fears of state prosecution

except those that are imaginary or speculative, are not to be accepted as appropriate

plaintiffs." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979).

The relevant inquiry is whether a party's decision to chill his speech in light of the

challenged statute was "objectively reasonable." Zanders v. Swanson, 573 F.3d 591,

594 (8th Cir. 2009). Reasonable chill exists when a plaintiff shows "an intention to

engage in a course of conduct arguably affected with a constitutional interest, but
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proscribed by [the] statute, and there exists a credible threat of prosecution." Babbitt,

442 U.S. at 298.

The district court concluded that plaintiffs' decision to chill their speech was not

objectively reasonable for two reasons. First, the court held that, because the relevant

provision of section 211.B06 has not been regularly enforced, plaintiffs face no

credible threat of prosecution. Second, the court held that none of plaintiffs' speech

could have been reasonably chilled by section 211.B06 because plaintiffs have not

alleged that they wish to engage in any conduct that would actually violate the statute.

We conclude that neither reason is convincing and that plaintiffs have made legally

sufficient allegations to support a finding that their speech was reasonably chilled by

section 211.B06.

First, we disagree with the district court's conclusion that the infrequent

enforcement of section 211.B06 undermines the objective reasonableness of plaintiffs'

decision to chill their speech. Total lack of enforcement of a statute can itself

undermine the reasonableness of chill allegedly resulting from that statute, but only in

extreme cases approaching desuetude. St. Paul Area Chamber of Commerce, 439 F.3d

at 486. Here, the district court emphasized that there have been no criminal

prosecutions under section 211.B06 since the statute was amended in 2004 and that

defendants have not themselves initiated any civil proceedings under the statute since

2004. Relying on these facts, the district court cited Poe v. Ullman, 367 U.S. 497, 508

(1961), and concluded the prospect of a prosecution under section 211.B06 is

"speculative and hypothetical in the extreme" and, thus, that plaintiffs' fear was not

objectively reasonable. This conclusion was erroneous. 

The district court's reliance on Poe is misplaced. Poe involved a statute that had

been enforced only once in the more than eighty years since it had been adopted. 367

U.S. at 501. Section 211.B06, on the other hand, was adopted comparatively recently

and was amended fewer than five years before this suit was filed. The Supreme Court
-8-

has repeatedly found that plaintiffs have standing to bring pre-enforcement First

Amendment challenges to criminal statutes, even when those statutes have never been

enforced. See, e.g., Babbitt, 442 U.S. at 302; Doe v. Bolton, 410 U.S. 179, 188 (1973).

It is only evidence–via official policy or a long history of disuse–that authorities

actually reject a statute that undermines its chilling effect. Defendants have neither

established a long history of disuse nor produced a clear statement by proper

authorities that they do not intend to enforce the statute. See United Food &

Commerical Workers Int'l Union v. IBP, Inc., 857 F.2d 422, 429 (8th Cir. 1988)

(representation by state officials that they have "no present plan" to enforce a statute

did not divest standing to challenge the statute because the state's position was not

binding and could change). Therefore, we conclude that section 211.B06 presents a

credible threat of prosecution sufficient to support a claim of objectively reasonable

chill in the First Amendment context.

Second, we disagree with the district court's conclusion that plaintiffs have not

established objectively reasonable chilled speech because they have not alleged that

they wish to engage in conduct that actually violates section 211.B06. We

acknowledge that plaintiffs have not alleged that they wish to knowingly make false

statements of fact. However, plaintiffs have alleged that they wish to engage in

conduct that could reasonably be interpreted as making false statements with reckless

disregard for the truth of those statements and that, therefore, they have reasonable

cause to fear consequences of section 211.B06. We hold that, given the specifics of

the challenged statute and the nature of the standing analysis in First Amendment

political speech cases, this is enough to establish that plaintiffs' decision to chill their

speech was objectively reasonable. 

A First Amendment plaintiff does not always need to allege a subjective intent

to violate a law in order to establish a reasonable fear of prosecution. The Supreme

Court has made clear that, at least when intent is not an element of a challenged statute

that prohibits some category of false speech, the likelihood of inadvertently or
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negligently making false statements is sufficient to establish a reasonable fear of

prosecution under the statute. Babbitt, 442 U.S. at 301-02. Defendants argue that

Babbitt is irrelevant here because–unlike the statute challenged in Babbitt– section

211.B06 has an intent requirement. They urge that this case is, instead, controlled by

our decision in Zanders, 573 F.3d 591. In Zanders, we denied standing to plaintiffs

who attempted to challenge a statute that made it a crime to knowingly make a false

report of police misconduct. Id. at 592. We reasoned that, because the plaintiffs did

not allege they intended to knowingly make false reports, they could not reasonably

fear consequences from the challenged statute. But Zanders does not settle the

question here. 

In Zanders, the plaintiffs' claim of standing was based on their speculative fear

that police officers would engage in bad-faith conduct and wrongfully accuse citizens

of making false reports when the officers knew the reports to be true. Id. at 594. Our

decision to deny standing turned on the fact that we believed the Zanders plaintiffs to:

fail in the key respect of asserting that peace officers in fact initiate

retaliatory prosecution in instances where the peace officers believe that

the allegations are truthful, or at least not knowingly false. It is too

speculative for standing purposes to allege that this statute could be

manipulated or that the police might misuse the criminal justice system

for retaliatory purposes.

Id. The Zanders plaintiffs presented no evidence that there was a likelihood that

officers would mistakenly believe citizens were making knowingly false statements,

which was unlikely given that officers would have personal knowledge about

misconduct in which they were allegedly involved. Here, on the other hand, plaintiffs'

fear of the statute does not rest upon such speculative notions of bad faith. Rather, we

conclude that–given the scope, context, and enforcement structure of section

211.B06–plaintiffs have made sufficient allegations of objectively reasonable chill. 
1

The difficulty of making this distinction is reflected in cases dealing with

defamation against public officials. Courts and scholars constantly struggle to draw

a line between knowingly or recklessly false statements and uses of rhetoric,

exaggeration, and ideologically-derived facts. See, e.g., Greenbelt Coop Publ'g Ass'n

v. Bressler, 398 U.S. 6, 14 (1970) (allegedly false statement that city council member

blackmailed someone was "no more than rhetorical hyperbole"); Old Dominion

Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974)

(holding that the use of the word "traitor" could not be reasonably interpreted as a

representation of fact because it was used "in a loose, figurative sense to demonstrate

the union's strong disagreement with the views of those workers who oppose

unionization"); Terri R. Day, "Nasty as They Wanna be Politics:" Clean Campaigning

and the First Amendment, 35 Ohio N.U. L. Rev. 647, 652 (2009) ("Often

characterized as hyperbole and overstatement, campaign speech is meant to persuade

and, as such, tends toward exaggeration, to vilification . . . and even to false

statement.") (internal quotation omitted).

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The chilling effects of section 211.B06 cannot be understood apart from the

context of the speech it regulates: political speech about contested ballot initiatives.

Plaintiffs persuasively argue that deciding whether a statement was made with

"reckless disregard for the truth" in the political-speech arena often proves difficult;1

this inquiry leaves substantially more room for mistake and genuine disagreement than

does, as was relevant in Zanders, deciding whether a citizen knowingly made a false

report about factual allegations of police misconduct. Plaintiffs allege a desire to use

political rhetoric, to exaggerate, and to make arguments that are not grounded in facts.

In turn, they have presented allegations of their reasonable worry that state officials

and other complainants–including their political opponents who are free to file

complaints under the statute–will interpret these actions as violating the statute. See

Mangual v. Rotger-Sabat, 317 F.3d 45, 58 (1st Cir. 2003) (allowing pre-enforcement

challenge to criminal libel statute where plaintiff did not admit he wanted to commit

criminal libel but wanted to publish articles that would "exacerbat[e his] exposure to

a criminal libel prosecution"). We cannot say that plaintiffs' fears are "imaginary" or

"wholly speculative." Babbitt, 442 U.S. at 302. The tactics plaintiffs have clearly

alleged that they want to use come close enough to speaking with reckless disregard
-11-

for the truth that we can say it would be objectively reasonable for plaintiffs to modify

those tactics in light of potential consequences from section 211.B06. See Majors v.

Abell, 317 F.3d 719, 721 (7th Cir. 2003) (plaintiffs need only allege they wish to

engage in activity that the challenged statute "arguably covers" because "most people

are frightened of violating criminal statutes"). 

The reasonableness of plaintiffs' fear is also underscored by the fact that, in the

past, plaintiffs' speech has triggered threats and the filing of one complaint under

section 211.B06. See United Food & Commercial Workers Int'l Union, 857 F.2d at

427 (noting that past experience with a statute is relevant to standing determination).

Although no complaints against the plaintiffs ever reached the criminal stage and no

criminal prosecution was ever threatened, non-criminal consequences contemplated by

a challenged statute can also contribute to the objective reasonableness of alleged chill.

Babbitt, 442 U.S. at 302 n.13 (noting that possible administrative and civil sanctions

provide "substantial additional support for the conclusion that appellees' challenge to

the publicity provision is justiciable"); Vermont Right to Life Comm. v. Sorrell, 221

F.3d 376, 382 (2d Cir. 2000) (finding standing and noting that fear of civil penalties

can be as inhibiting of speech as fear of criminal prosecution). Although the civil

complaint against plaintiff 281 Care Committee was ultimately dismissed, this

happened only after a prima facie violation was found and after plaintiffs spent several

months and $1,900 in attorney fees litigating the matter. This complaint–and the other

complaints threatened–give plaintiffs grounds to reasonably fear that, unless they

modify their speech, they will be subject to the hassle and expense of administrative

proceedings.

"Under these circumstances, we find that plaintiffs are not simply attempting to

obtain an advisory opinion or to enlist the court in a general effort to purge the

[Minnesota] statute books of unconstitutional legislation." United Food & Commercial

Workers Int'l Union, 857 F.2d at 430. The record before us indicates that plaintiffs

have modified their speech in light of section 211.B06. We conclude that, if the statute
-12-

survives, it may well be objectively reasonable for plaintiffs to continue to do so.

Standing analysis under the First Amendment is intended to allow challenges based on

this type of injury. See Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (recognizing

the "sensitive nature of constitutionally protected expression" in permitting a preenforcement action involving the First Amendment). Thus, the plaintiffs have alleged

injury in fact sufficient to support standing to ask the federal courts to consider their

claim. 

On appeal, defendants urge that, even if plaintiffs have established that they

suffered injury in fact, plaintiffs still lack standing because it is unlikely their injury

will be redressed by a favorable decision. Defendants argue that, because any party

can institute a civil complaint and because criminal prosecution cannot occur until the

civil complaint is resolved, enjoining the attorney general and the county attorneys will

not redress plaintiffs' concerns about the chilling effects of the civil portion of the

statute. However, a party "satisfies the redressability requirement when he shows that

a favorable decision will relieve a discrete injury to himself. He need not show that

a favorable decision will relieve his every injury." Minn. Citizens Concerned for Life

v. FEC, 113 F.3d 129, 131 (8th Cir. 1997) (emphasis in original) (internal quotation

omitted). When a statute is challenged as unconstitutional, the proper defendants are

the officials whose role it is to administer and enforce the statute. Mangual, 317 F.3d

at 57. The county attorneys are the parties primarily responsible for enforcing the

criminal portion of the statute; enjoining them would redress a discrete portion of

plaintiffs' alleged injury in fact. Further, the county attorneys and the attorney general

are also authorized–along with any other individual or organization–to institute a civil

complaint. Granting declaratory or injunctive relief against the defendants, would

redress a discrete injury to plaintiffs. Thus, we find plaintiffs have standing. 
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b. Ripeness

Defendants also argue, as the district court held, that plaintiffs' claim is not

justiciable because it is not ripe for adjudication. A claim is not ripe if the alleged

injury "rests upon contingent future events that may not occur as anticipated, or indeed

may not occur at all." KCCP Trust v. City of North Kansas City, 432 F.3d 897, 899

(8th Cir. 2005) (quotation omitted). Here, defendants' ripeness challenge fails because

plaintiffs' alleged injury has already occurred and will continue to occur at defined

points. Plaintiffs' alleged injury is not based on speculation about a particular future

prosecution or the defeat of a particular ballot question. Rather, the injury is speech

that has already been chilled and speech that will be chilled each time a school funding

initiative is on the ballot because of the very existence of section 211.B06. See

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1098 (10th Cir. 2006)

(plaintiffs' claim was ripe where plaintiff alleged the requirement "by its very

existence, chills the exercise of the Plaintiffs' First Amendment rights"); see also Minn.

Citizens Concerned for Life, 113 F.3d at 132. Here, the issue presented requires no

further factual development, is largely a legal question, and chills allegedly protected

First Amendment expression. Thus, we conclude that plaintiffs' claim is ripe for

review. 

c. Sovereign Immunity 

On appeal, defendant Lori Swanson–the Minnesota Attorney General–argues

that there is an additional and independent reason plaintiffs' claims against her are not

justiciable: she argues the Eleventh Amendment bars plaintiffs from bringing this suit

against her in her official capacity. We find that the suit is proper under the Ex Parte

Young, 209 U.S. 123 (1908), exception to Eleventh Amendment immunity and reject

Swanson's argument.
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The Eleventh Amendment establishes a general prohibition of suits in federal

court by a citizen of a state against his state or an officer or agency of that state.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). However, there

are exceptions to this rule. Relevant here, a suit against a state official may go forward

in the limited circumstances identified by the Supreme Court in Ex Parte Young.

Under the Ex Parte Young doctrine, a private party can sue a state officer in his official

capacity to enjoin a prospective action that would violate federal law. In determining

whether this exception applies, a court conducts "a straightforward inquiry into

whether [the] complaint alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective." Verizon Maryland, Inc. v. Pub. Serv. Comm'n

of Maryland, 535 U.S. 635, 645 (2002) (alteration in original) (internal quotation

omitted). Here, there is no dispute that the relief plaintiffs seek is prospective. The

only question is whether they have alleged that defendant Swanson is, herself, engaged

in an ongoing violation of federal law. 

Plaintiffs argue that the attorney general is engaged in an ongoing violation of

federal law by virtue of the office's participation in the enforcement mechanism of

section 211.B06. Swanson responds that her office has no special role in the

enforcement of section 211.B06 and that a state attorney general is not automatically

a proper defendant when a lawsuit challenges the constitutionality of a state statute.

Swanson is correct that, under Ex Parte Young, a state attorney general cannot be sued

merely as a representative of the state itself. 209 U.S. at 157. Rather, to be amenable

for suit challenging a particular statute the attorney general must have "some

connection with the enforcement of the act." Reprod. Health Servs. v. Nixon, 428 F.3d

1139, 1145-46 (8th Cir. 2005). Here, plaintiffs have demonstrated a sufficient

connection between the attorney general and the enforcement of section 211.B06 to

satisfy this standard. 

Plaintiffs allege a three-fold connection between the Minnesota attorney general

and the enforcement of section 211.B06. First, the attorney general may, upon request
-15-

of the county attorney assigned to a case, become involved in a criminal prosecution

of section 211.B06. Minn. Stat. § 8.01. Second, the attorney general is responsible for

defending the decisions of the OAH–including decisions pursuant to section

211.B06–if they are challenged in civil court. See Minn. Stat. § 8.06 (the attorney

general "shall act as the attorney for all state officers and all boards or commissions

created by law in all matters pertaining to their official duties."). Third, the attorney

general appears to have the ability to file a civil complaint under section 211.B06, as

Minnesota law gives the attorney general broad discretion to commence civil actions,

see Minn. Stat. § 8.01, and section 211B.06 allows any person, entity, or agency to file

a civil complaint. 

Under our precedent, this connection is strong enough to bring this suit under

the Ex Parte Young exception to Eleventh Amendment immunity. While we do require

"some connection" between the attorney general and the challenged statute, that

connection does not need to be primary authority to enforce the challenged law. See

Missouri Pro. & Advocacy Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) (finding

the Ex Parte Young exception applied to attorney general where he could potentially

have represented the state in a criminal prosecution that might have arisen indirectly

out of an individual's failure to comply with the challenged voter-eligibility law). Nor

does the attorney general need to have the full power to redress a plaintiff's injury in

order to have "some connection" with the challenged law. Citizens for Equal Prot. v.

Bruning, 455 F.3d 859, 864 (8th Cir. 2006). In Reproductive Health Services, 428

F.3d at 1145-46, we found that a connection, more tenuous than the one here, was

sufficient to make the attorney general amenable to suit under Ex Parte Young. In

Reproductive Health Services, as here, the attorney general had no authority to initiate

criminal prosecution. Id. Rather, the attorney general could only participate in a

criminal proceeding if his assistance was requested by the assigned county attorney or

the trial court asked him to sign indictments. Id. Further, in Reproductive Health

Services, the attorney general did not have the connection to the civil enforcement of

the statute that is present here. Nonetheless, there we held that–although the
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connection was not strong enough to support the issuance of a preliminary injunction

against the attorney general–it was strong enough to bring the attorney general into the

Ex Parte Young exception and make him a potentially proper defendant. Id. In the

instant case, the three-fold connection plaintiffs have alleged is sufficient to make

Swanson amenable to suit under the Ex Parte Young exception to Eleventh

Amendment immunity. 

B. Failure to State a Claim

Because we find that the district court erred when it dismissed plaintiffs'

complaint for lack of a subject-matter jurisdiction, we consider the court's alternate

ground for dismissal: that plaintiffs failed to state a claim upon which relief can be

granted. We review de novo a district court's dismissal of a complaint under Federal

Rule of Civil Procedure Rule 12(b)(6) for failing to state claim. Smith v. St. Bernards

Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). 

The district court concluded that the kind of speech regulated by section

211B.06 falls outside the protections of the First Amendment and, thus, the district

court upheld section 211B.06 without conducting a strict-scrutiny analysis. We

conclude this approach was erroneous and remand the case to allow the district court

to determine whether section 211B.06 is narrowly tailored to serve a compelling

interest of the State of Minnesota. 

As a general rule, content-based speech restrictions can only stand if they meet

the demands of strict scrutiny. United States v. Playboy Entm't Group, Inc., 529 U.S.

803, 813 (2000). However, there is an exception to this rule for "certain well-defined

and narrowly limited classes of speech, the prevention and punishment of which has

never been thought to raise any Constitutional problem." Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942). The categories of speech that the Supreme

Court has found fall outside the First Amendment include fighting words, obscenity,
-17-

child pornography, and defamation; statutes restricting speech from one of these

categories are not subject to strict scrutiny as long as they are viewpoint-neutral.

R.A.V. v. City of St. Paul, 505 U.S. 377, 382-88 (1992). The district court concluded

that knowingly false speech is another category in this group of exceptions. We

disagree. We find that the Supreme Court has never placed knowingly false campaign

speech categorically outside the protection of the First Amendment and we will not do

so today. 

The district court relied on, and defendants cite to, language from the Supreme

Court to support their conclusion that knowingly false speech is valueless and

categorically exempt from First Amendment protection. See, e.g., Garrison v.

Louisiana, 379 U.S. 64, 75 (1964). However, all the language the district court and

defendants cited comes from cases dealing with otherwise unprotected speech, namely

fraudulent or defamatory speech. We follow the lead of the Ninth Circuit in

concluding that this language dismissing the value of knowingly false speech, when

read in context of the opinions, does not settle the question here today. United States

v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010) (striking down the Stolen Valor Act,

which made it a crime to make a false statement about one's own military service); see

also State Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998)

(striking down a statute that prohibited knowingly false speech about ballot issues).
2

To the extent that defendants also argue in favor of application of fraud

principles to all knowingly false speech, we reject the argument, noting the Supreme

Court has carefully limited the boundaries of what is considered fraudulent speech.

It has not included all false speech, or even all knowingly false speech. See, e.g., 

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003)

(noting that "[e]xacting proof requirements" of state law fraud claims, including

requirements that "the defendant made the representation with the intent to mislead

the listener, and succeeded in doing so," rendered the law constitutional since it

"provided sufficient breathing room for protected speech"). 

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The district court assumed, and defendants argue,2

 that the categorical exemption

of defamatory speech is actually an exemption of all knowingly false speech.

However, defamation-law principles are justified not only by the falsity of the speech,

but also by the important private interests implicated by defamatory speech. See

Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U.

Chi. L. Rev. 225, 238 (1992) (noting defamation is an actionable wrong because it

"vindicate[s] private rights invoked by, or at least on behalf of, private individuals," but

that "the First Amendment precludes punishment for generalized 'public' frauds,

deceptions, and defamation"); Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988)

(noting defamatory falsehoods are punishable because they can "cause damage to an

individual's reputation that cannot easily be repaired by counterspeech, however

persuasive or effective"). The importance of private interests to the foundations of

defamation-law principles prevents us from assuming its applicability to knowingly

false political speech. A government entity cannot bring a libel or defamation action.

New York Times v. Sullivan, 376 U.S. 254, 291 (1964) (noting no court "of last resort

in this country has ever held, or even suggested, that prosecutions for libel on

government have any place in the American system of jurisprudence" (internal

quotations omitted)). A ballot initiative clearly cannot be the victim of a character

assassination. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 352 n.16

(1995). Although defendants are correct that some language from the defamation cases

could, on its face, be read broadly enough to include non-defamatory false speech, "we

are not eager to extend a statement (often quoted, but often qualified) made in the
3

The breadth of the protection afforded to political speech under the First

Amendment is difficult to overstate in light of recent Supreme Court precedent. See

Snyder v. Phelps, 131 S. Ct. 1207 (2011); Citizens United v. FEC, 130 S. Ct. 876

(2010). In Citizens United, the Court struck down a ban on political-campaign

contributions by corporations, repeatedly emphasizing the special status of political

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complicated area of defamation jurisprudence into a new context in order to justify an

unprecedented and vast exception to First Amendment guarantees." Alvarez, 617 F.3d

at 1208. 

After finding that Supreme Court precedent does not currently recognize

knowingly false speech as a category of unprotected speech, we also decline to,

ourselves, establish it as such. Although defendants may be correct that knowingly

false speech is, itself, often valueless, the First Amendment does not allow the courts

of appeals to decide whether a category of speech, on the whole, tends to contain

socially worthless information. See United States v. Stevens, 130 S. Ct. 1577, 1585

(2010) ("The First Amendment's guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs and

benefits."). The Court recently labeled the government's advocacy of such an approach

"startling and dangerous." Id. Prior decisions that have discussed the worthlessness of

speech categorically excepted from the First Amendment are descriptive not

prescriptive–they tell us something about the speech that is exempt but not about what

other types of speech may be exempt from First Amendment scrutiny. Thus, even if we

were convinced that knowingly false speech was generally valueless, we could not on

that basis make a judgment that it falls outside the protections of the First Amendment

because "[t]he First Amendment itself reflects a judgement by the American people

that the benefits of its restrictions on the Government outweigh the costs." Id.

We are especially unwilling to do so here because the speech involved (i.e.,

speech about ballot initiatives) is quintessential political speech, which is at the heart

of the protections of the First Amendment.3

 Mills v. Alabama, 384 U.S. 214, 218
speech under the First Amendment. 130 S. Ct. at 898 ("[P]olitical speech must prevail

against laws that would suppress it, whether by design or inadvertence."). Although

the Court concluded that the application of strict scrutiny was sufficient to protect the

speech in that case, the Citizens United Court went so far as to suggest that there may

be a bright-line rule against restrictions on political speech. Id. ("[I]t might be

maintained that political speech simply cannot be banned or restricted as a categorical

matter."). The Court's recent decision in Snyder is similarly protective of political

speech. Although it involved a challenge to a tort verdict rather than to a speechrestricting statute, Snyder is, nonetheless, notable because the Court's decision to

overturn the verdict against defendants hinged largely on the fact that the speech

defendants were held liable for was speech about matters of public concern, which the

Court noted is the "'essence of self-government.'" 131 S. Ct. at 1215 (quoting

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). This status was enough to entitle

defendants' speech to special protection and insulate it from liability, despite the fact

that the speech was "hurtful" and its contribution to society "may be negligible." Id.

at 1220. 

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(1966) ("Whatever differences may exist about interpretations of the First Amendment,

there is practically universal agreement that a major purpose of that Amendment was

to protect the free discussion of governmental affairs."). This law puts the Minnesota

state government in the unseemly position of being the arbiter of truth about political

speech. This raises special First Amendment concerns because the First Amendment

is not only about protecting the rights of individual speakers, but also about

"constraining the collective authority of temporary political majorities to exercise their

power by determining for everyone what is true and false, as well as what is right and

wrong." Stephen G. Gey, The First Amendment and the Dissemination of Socially

Worthless Untruths, 36 Fla. St. U. L. Rev. 1, 3 (2008).

We agree with the Ninth Circuit that, "given our historical skepticism of

permitting the government to police the line between truth and falsity, and between

valuable speech and drivel, we presumptively protect all speech, including false

statements, in order that clearly protected speech may flower in the shelter of the First

Amendment." Alvarez, 617 F.3d at 1217. We do not, of course, hold today that a state
-21-

may never regulate false speech in this context. Rather, we hold that it may only do

so when it satisfies the First Amendment test required for content-based speech

restrictions: that any regulation be narrowly tailored to meet a compelling government

interest. 

Defendants also invoke the negative implications of dicta from two Supreme

Court cases striking down election laws on First Amendment grounds. See Brown v.

Hartlage, 456 U.S. 45, 61-62 (1982) (holding that an election law prohibiting all false

statements of fact was "inconsistent with the atmosphere of robust political debate

protected by the First Amendment," and noting that the politician whose victory was

nullified promptly retracted the false statement and apparently made the statement "in

good faith and without knowledge of its falsity" or without "reckless disregard as to

whether it was false or not"); McIntyre, 514 U.S. at 349 (holding that a ban on

anonymous campaign pamphleteering violated the First Amendment, and noting that

the state interest in preventing electoral fraud was less compelling because Ohio law

already included "prohibitions against making or disseminating false statements during

political campaigns" that applied to issue-driven ballot measures). While these cases

may inform the district court's strict-scrutiny analysis, neither holds that the actual

malice standard applies to false speech in the context of political campaigns on a ballot

issue, and neither goes so far as to categorically exempt prohibitions on knowingly

false campaign speech from any scrutiny under the First Amendment–which would be

necessary for a motion to dismiss to be granted in this case. 

C. Plaintiffs' Motion for Summary Judgment 

After granting the defendants' motion to dismiss, the district court denied

plaintiffs' motion for summary judgment, finding that it was moot. Because we reverse

the dismissal of plaintiffs' complaint, we also vacate this finding of mootness. On

appeal, plaintiffs urge us to grant their motion for summary judgment. However,

additional development of arguments regarding whether section 211.B06 satisfies strict
-22-

scrutiny is required. Thus, we decline to consider the merits of plaintiffs' motion and,

instead, remand the matter to the district court for reconsideration.

III. CONCLUSION

For the foregoing reasons, we reverse the district court's grant of defendants'

motion to dismiss, vacate the denial of plaintiffs' motion for summary judgment, and

remand to the district court for further proceedings consistent with this opinion. 

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