From State v. Dornfeld, decided yesterday by the Minnesota Court of Appeals (Presiding Judge Francis Connolly, joined by Judges Michelle Larkin & Randall Slieter):
Appellant challenges her petty-misdemeanor conviction of being a pedestrian on a controlled-access highway, arguing … [among other things that] the statute under which she was convicted violates the First Amendment, she was singled out for discriminatory prosecution, and her prosecution was barred by government estoppel….
In November 2021, appellant Tess Dornfeld was charged with a petty misdemeanor for being a pedestrian on a controlled-access highway in November 2020, when she was participating in a demonstration as part of a group of about 600 people who walked onto I-94, a controlled access highway….
Appellant argues that "her arrest, prosecution, and conviction violate her constitutional right to freedom of speech" because: (1) her conduct on I-94, a controlled access highway, was protected speech; (2) Minn. Stat. § 169.305, subd. 1(c) (2022), providing that the commissioner of transportation may prohibit or regulate the use of any controlled access highway by pedestrians if that use is incompatible with the normal and safe flow of traffic, is a state regulation of free speech; (3) the constitutionality of such regulations is subject to intermediate scrutiny, meaning that the regulation must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication, and (4) the action of the police in arresting appellant was not narrowly tailored to serve the government's interest because the police did not permit protesters to leave I-94.
