Minnesota State football coach Todd Hoffner, the dropped child pornography charges, and the First Amendment

Yesterday marked the latest, and perhaps nearly final, step related to the legal travails of Todd Hoffner, the once and future head football coach at Minnesota State University, Mankato. According to the Pioneer Press:

The football coach fired from Minnesota State, Mankato announced Tuesday that he will return to the job after an arbitrator ruled he was wrongfully terminated, saying the decision wasn’t easy but that it would help him and his family heal.

Todd Hoffner was fired last May for reasons undisclosed at the time. But the dismissal came after he was cleared of child pornography charges stemming from images of his children on a work-issued cellphone, accusations that Hoffner called the “most ridiculous things I’ve ever heard in my life.”

The matter does sound quite unfortunate for Hoffner, though at least it looks like he’s gotten some vindication. But I thought I’d mention an interesting legal aspect of the case — a court decision handed down last spring, after the charges against Hoffner were dropped, providing that various items in the case should be kept private, because of Hoffner’s First Amendment and privacy rights. (Hoffner v. Minnesota, 41 Media L. Rep. 1905 (Minn. Dist. Ct. May 3, 2013).

The legal issues related to access to court records, and to individual privacy in particular, are quite complex, and my views on them are generally quite tentative. But I thought I’d just pass along a longish excerpt from the court decision, for those who are interested in such matters:

Plaintiff Todd Hoffner is the former head football coach at Minnesota State University – Mankato … On August 16, 2012, the human resources department at MSU contacted police to report that a university employee had discovered three videos of suspected child pornography on Plaintiff’s work-issued cellular phone. The Mankato Police Department and Blue Earth County Sheriff’s Office commenced a criminal investigation into the matter. That investigation revealed that Plaintiff recorded the three videos in his home and that the children in the videos were Plaintiff’s minor children.

Based on this information, police arrested Plaintiff for suspected production and possession of child pornography. They also applied for and obtained a search warrant to search Plaintiff’s residence for additional evidence of child pornography. The subsequent execution of that search warrant resulted in the discovery of no additional child pornography evidence. On August 21, 2012, the state charged Plaintiff with one count of use of a minor to engage in a sexual performance … and one count of possession of a pornographic work involving minors ….

At an October 31, 2012, omnibus hearing, Plaintiff moved to dismiss all charges for lack of probable cause …. The state presented the three alleged pornographic videos as evidence, as well as police reports, transcripts of child protective interviews with Plaintiffs children, and search warrant applications to establish probable cause for the charges.

On November 30, 2012, the Court issued an Order dismissing all charges. The Court found that there was insufficient evidence to establish probable cause to believe that the videos constituted “pornographic works” or a “sexual performance” under Minnesota law. The Court additionally concluded that the videos constituted protected expression as a matter of law, and that the prosecution of Plaintiff violated his rights to free speech and privacy under the First and Fourteenth Amendments to the United States Constitution. The state elected not to appeal the dismissal ….

On December 01, 2012, Minneapolis/St. Paul KMSP-TV Fox 9 News (“Fox 9 News”) made a request under the federal Freedom of Information Act … demanding access to Plaintiff’s investigative file from Blue Earth County….

On December 13, 2012, Plaintiff commenced the within action to compel the County to comply with the Minnesota Government Data Practices Act (“MGDPA”) under Minn. Stat. § 13.08. Specifically, Plaintiff seeks a declaratory judgment determining that the data contained in the law enforcement investigative file is “private data” under the MGDPA and injunctive relief prohibiting the County from releasing the data to the public….

[The court concluded that the investigative data in the case fit within a private-information exception to the state public records statute, and went on to say:]

[T]he interests of justice warrant consideration of the impact that public dissemination of the data contained in the inactive criminal investigative file would have Mr. Hoffner’s fundamental rights to free speech and privacy.

As a general principle, government action which chills constitutionally protected speech or expression contravenes the First Amendment…. On the issue of criminal prosecution of an individual for engaging in protected activity, the Supreme Court has recognized that “[t]he chilling effect upon the exercise of First Amendment rights may derive from the fact of [criminal] prosecution, unaffected by the prospects of its success or failure.” …

In this case, the Court determined that there was insufficient evidence to demonstrate that Mr. Hoffner harmed his children. Consequently, the state lacked a compelling interest to interfere with his First Amendment rights. The investigation by law enforcement resulted in the collection of a large amount of personal information concerning Mr. Hoffner and his family. It is undisputed that all of the information collected or created by police in the course of their investigation descended from one source — the cell phone videos which constitute protected expression under the First Amendment….

Where the only basis for police action against a parent is the misconception of that parent’s speech or activity protected by the First Amendment, it is difficult to conceive of a more chilling effect on the full expression and utilization of that parent’s First Amendment rights than the government’s intrusion into the private realm of the family home, its rummaging through the family’s personal effects, and its exposure of all that is discovered to the public eye. The Constitution does not permit such collateral burdens on protected expression. See Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (“(T)he First Amendment has a penumbra where privacy is protected from governmental intrusion.[”).]

Public disclosure of the investigative data in this case would also adversely impact the Hoffner family’s right to privacy. The Supreme Court has recognized that the constitutional right to privacy, grounded in the Fourteenth Amendment’s Due Process Clause, respects not only individual autonomy in intimate matters but also the individual’s interest in avoiding divulgence of highly personal information. See Whalen v. Roe. 429 U.S. 589, 598-600 (1977); see Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 457 (1977) (acknowledging that “[o]ne element of privacy has been characterized as ‘the individual interest in avoiding disclosure of personal matters.”).

A parent and his children are not subject to state-assisted public scrutiny for doing that which they are constitutionally entitled to do. Where an investigation reveals no harm to any member of the family unit, what goes on within the privacy of the family home is not the public’s constitutional business.

For all of these reasons, the Court concludes that the entire law enforcement investigative file in State of Minnesota v. Todd Christian Hoffner is protected from disclosure under the First and Fourteenth Amendments.

The court noted that the evidence actually presented in court at the preliminary hearing, aside from the cell phone videos themselves (which had been sealed), was made public and remains public.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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