Defendant Minnesota Public Radio ("MPR") respectfully submits this memorandum in support of its motion to dismiss. The Amended Complaint ("Complaint") brought by the State of Minnesota ("State") fails to state a claim for relief. MPR has not violated Minnesota law governing the solicitation of charitable contributions, Minn. Stat. §§ 309.50 et seq. On the contrary, as demonstrated by the Complaint itself and its attachments, MPR has conducted its charitable solicitations according to the highest legal and ethical standards

Background

For purposes of this motion to dismiss brought under Minn. R. Civ. P. 12, the Court need not look beyond the allegations of the Complaint, including its attachments. Minn. R. Civ. P. 10.03 (pleading includes attached exhibits); MacKenzie v. Belisle, 338 N.W.2d 33, 36-37 (Minn. 1983); Markwood v. Olson Mfg. Co., 289 N.W. 830, 831-32 (1940).

MPR is a member-supported nonprofit organization offering radio programs that reach 550,000 regional listeners each week with news, classical music, and other programming. (Compl. Exh. 1 at 1-2.) MPR has approximately 87,000 annual individual contributors who are considered members. (Compl. 10-11.) MPR's mission is to enrich the mind and nourish the spirit through radio, related technology, and services. (Compl. Exh. 1 at 8.) MPR promises the listening public that it will present content and services selected on the basis of its own judgment and on the basis of information and knowledge resulting from its relationship with its audiences. ( Id.) MPR embraces as a "core value" a dedication to building and redefining audience relationships that foster understanding, trust, loyalty, and good will. (Id. at 9.) It also embraces the core value of a relationship with its constituents that is open and candid. (Id.)

As part of its commitment to constituents, MPR promises to respect their privacy and personal information. These promises are spelled out in detail for visitors to its Website in its Website User Privacy Policy and for its donors in its Member List Policy. (Id. at 2.) The User Privacy Policy for MPR's Website describes what MPR does with information provided by persons who purchase products or services, participate in a Website forum, or provide information by other specified means on the MPR Website. (Id. at 11.) The policy states:

This information may be used by MPR to: verify your identity; manage a contest; gather your editorial comments and feedback; contact you for additional information; and fulfill your order or request. MPR may also use this information for marketing and promotional purposes. By providing this information, you may receive occasional email from MPR or selected third-parties.

When your name and contact information is to be used as part of an MPR-owned list, you will be informed of that fact, and you will be given the option not to be included on the list. (You may later elect to be removed from an MPR list by following the instructions provided on the MPR Web site.)

To maximize the benefits MPR can provide through its network of public radio Web sites and through qualified associations, your name and basic contact information may be exchanged for consideration with select companies and organizations, including with other public radio stations and programs. These companies and organizations may attempt to contact you to promote a product or service which they offer. Such contacts from third-parties will only be made with MPR's consent, and MPR will only grant its consent when MPR considers the offer to be of potential interest and benefit to our Web site users.

MPR will not share, exchange, rent, or sell any of its lists to political parties or candidates for political office.

If you do not want your name and contact information to be used in this way, you may indicate this at the time you provide the information. If an "opt-out" option is not offered, or you decide after you have provided this information that you do not want MPR to share your information with any company or organization, you may also notify us in an email addressed to mail@mpr.org. MPR cannot remove your name from any third party's list; you will have to contact them directly.

(Id. at 11-12.) This policy is publicly available at MPR's Web site. (Compl. 14.)

MPR's donor list exchange practices are described in detail in its Member List Policy, which applies to all donors (by whatever means acquired) and a summary of which is also publicly available at MPR's Web site. (Compl. Exh. 1 at 3-4.) This policy states:

Minnesota Public Radio occasionally exchanges portions of its membership list with other organizations. MPR agrees to such list exchanges only to benefit MPR and its members. To the extent that MPR is effective in raising funds by mail, it is able to limit the amount of time spent doing on-air fund-raising.

List exchanges are made under strict rules that provide for one-time use, consist of name and address only, no retention of the name, and continued use only where a commitment is made. No other information is available for any purpose other than MPR membership services.

Minnesota Public Radio will not sell its membership list, or rent its membership list for cash, to any other organization.

MPR may exchange its member list for telemarketing, when such exchange will be useful to MPR's own fund-raising efforts. MPR will exchange its list for telemarketing only with established charitable cultural organizations in its regional service area. The only additional item of information provided in a telemarketing exchange is the member's telephone number.

MPR will not exchange its list with any political party or candidate for political office.

MPR members have the right not to have their names exchanged. Members who do not want their names exchanged are encouraged to call Member/Listener Services at 651-290-1212 or 800-228-7123 and request "no exchange" or to indicate this preference in making membership commitments by mail or phone.

Periodically, MPR rents or purchases lists from other organizations to reach prospective members who are known to be direct mail responsive.

MPR will not rent or purchase lists which are generated by political parties, political candidates, or organizations that spend a substantial amount of their time lobbying.

Lists will not be rented from organizations where such an association may harm the goodwill and trust between MPR and its members.

In list exchanges, as in other fund raising practices, MPR complies with the laws and regulations of the Internal Revenue Service, the laws of the State of Minnesota, the regulations of the United States Postal Service, and the certification requirements of the Corporation for Public Broadcasting.

MPR adheres to the ethical guidelines of the Direct Marketing Association, including their Privacy Promise to consumers, their Guides for Ethical Business Practice, and their Guidelines for List Practice.

MPR meets accountability standards for the charitable sector as outlined by the Minnesota Charities Review Council.

Minnesota Public Radio occasionally makes the names of its members available to other organizations in which we think MPR members may be interested. If you prefer not to have your name passed along, please contact Member/Listener Services [at the address, phone number, email address or fax number provided].

MPR occasionally exchanges its mailing list with other organizations. If you prefer that your name not be included, please check the box and return in the envelope provided, or call Member/Listener Services at 800-218-7123.

Does MPR ever make its membership list available to other groups?

Minnesota Public Radio occasionally makes the names of its members available to other organizations in which we think MPR members may be interested. If you prefer not to have your name passed along, please give us a call or drop us a note [at the address, phone number or email address provided].

(Id., bold in original.)

According to the Complaint, in practice, between January 1, 1995 and date of the Complaint, December 28, 1999, MPR exchanged a total of approximately 3 million member names, addresses and telephone numbers with other organizations for fundraising purposes. (Compl. 16.) Dividing this total number by the number of MPR members (87,000, Compl. 11), that means that on average, each member's information has been exchanged a total of 34.5 times over five years, or 6.9 times per year.

The State's Allegations

The State alleges that MPR misrepresented to the donating public the nature of MPR's use of donor information in list exchanges with other organizations. The Complaint alleges five misrepresentations.

1. That MPR does not merely exchange "names" on an "occasional" basis (Compl. 16);

2. That neither MPR's Website nor the 1999 or 1996 brochures disclose the volume of exchanges or identity of list exchangees (Id. 17);

3. That MPR's 1999 and 1996 brochures do not disclose the fact that MPR exchanges addresses (Id. 18);

4. That MPR's 1999 and 1996 brochures do not disclose the fact that MPR exchanges telephone numbers (Id. 19); and

5. "Upon reasonable belief," that MPR's primary standard for choosing list exchangees is whether such exchange will benefit MPR's fundraising activities, not because MPR thinks members may be interested (Id. 21-22).

Standard for Motion to Dismiss

Under Minn. R. Civ. P. 12.02(e), a pleading will be dismissed if the facts alleged in the complaint do not set forth a legally sufficient claim for the relief demanded. Elzie v. Commissioner, 298 N.W.2d 29, 32 (Minn. 1980); Rohricht v. O'Hare, 586 N.W.2d 587, 588 (Minn. Ct. App. 1998), review denied. For purposes of a motion to dismiss under Rule 12, the complaint includes exhibits attached to it. Minn. R. Civ. P. 10.03; MacKenzie v. Belisle, 338 N.W.2d at 36-37; Markwood v. Olson Mfg. Co., 289 N.W. at 831-32. The sufficiency of the Complaint as a matter of law to establish a cause of action may be determined by the terms of the exhibits. Markwood, 289 N.W. at 831-32. Where the provisions of the exhibits are plain and unambiguous, they must prevail over inconsistent allegations in the Complaint. Id.

Dismissal is appropriate where a party asserts a claim not recognized under applicable law, or a claim barred on legal grounds, or where the party has not alleged sufficient facts to establish all requisite elements of a claim. Motions pursuant to Rule 12 in Minnesota state and federal courts dispose of legal issues with a minimum of time and expense to the interested parties. See Hiland Dairy Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir. 1968) (dismissing claim under analogous Fed. R. Civ. P. 12(b)(6) where allegations in complaint, taken as admitted, do not support claim), cert. denied, 395 U.S. 961 (1969); Perkins v. Silverstein, 939 F.2d 463 , 467-68 (7th Cir. 1991) (conclusory allegations not sufficient); Fleming v. Lind-Waldock & Co., 922 F.2d 20, 23-24 (1st Cir. 1990) (dismissing complaint asserting unsubstantiated inferences and conclusions, rather than specific factual allegations).

Although the Court must take as true the well-pleaded allegations of fact contained in the Complaint and must construe all reasonable inferences from the facts in favor of plaintiffs, Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), the Court need not accept inferences that are unsupported by the specific facts as alleged, and should not accept legal conclusions cast in the form of factual allegations. Kowal, 16 F.3d at 1276; Hiland Dairy, Inc., 402 F.2d at 973 ("[t]he court need not accept conclusions of law, unreasonable inferences or unwarranted deductions"). Dismissal is warranted where the plaintiff's allegations, considered as a whole, are conclusory and devoid of factual basis. McClure v. Esparaza, 556 F. Supp. 569 (E.D. Mo. 1983), aff'd, 723 F.2d 162 (8th Cir. 1984), cert. denied, 471 U.S. 1052 (1985).

Argument

Based on the facts alleged by the State and set forth in the materials made a part of the Complaint, MPR has not violated any Minnesota law regulating charitable solicitations. Consistent with the highest ethical standards for charitable fundraising, MPR exchanges directory information with other organizations as disclosed to its members and the public. Even if the Court were to accept the State's legal theory that a charity's use of members' directory information comes within the purview of the charitable fraud statute, the facts as alleged in the Complaint and its exhibits show no violation of the statute.

Moreover, the State misconstrues the scope of Minn. Stat. § 309.55, subd. 5. The types of fraud governed by this section of the statute concern the misuse of funds solicited for charitable purposes and misrepresentations about precisely who is making the solicitation. There is no allegation in the Complaint that MPR has misused funds or misled donors about who is requesting funds. Even if the conclusory allegations of misrepresentation in the Complaint were supported in fact - an assumption belied by the facts submitted with the Complaint - the claimed misrepresentations do not rise to the level of charitable fraud prohibited by Minn. Stat. § 309.55, subd. 5. In addition, the State's application of the statute under these circumstances unconstitutionally restricts MPR's rights of free speech and association.

It is not MPR but the State which misrepresents the nature of MPR's communications to its members and the donating public. The Complaint pulls small quotes out of context, makes gross and obvious mathematical errors, misuses the charitable fraud statute, and injects irrelevant political hyperbole inappropriate to its legal theory. The Complaint is beneath the dignity of the office of the Attorney General, who is charged with protecting Minnesota citizens from actual charity fraud and who should not be pursuing unfounded claims against a Minnesota charity which itself is following the highest ethical and legal principles.

I. MPR HAS NOT MISREPRESENTED ITS LIST EXCHANGE POLICY AND PRACTICE.

Each of the State's five allegations of misrepresentation is belied by the facts as set forth in the State's own Complaint. Under the heading, "Misrepresentations to the Public," the State pulls various words and lines out of the MPR materials submitted as exhibits to the Complaint and described and quoted in detail above. (Compl. 6-14.) The State tries to put its snippets from these materials in as negative a light as possible, pulling them out of context, and then uses a transitional conclusory paragraph (Compl. 15) to segue into its five specific allegations of charity fraud (Compl. 16-22.). These five allegations form the core of the Complaint and alleged basis for requesting relief from the Court.

Allegation One

The State alleges that MPR misled the public by stating that it exchanged "names" of members "occasionally." The State alleges:

In truth and in fact, defendant MPR does not exchange the mere "names" of its members "occasionally." Since January 1, 1995, MPR has allowed over 100 other organizations to use the names and addresses of MPR members for fundraising solicitation purposes in over 400 transactions, and has exchanged the telephone numbers of its members with at least 9 different organizations in at least 27 different transactions. That amounts to an average exchange of member names approximately once every four days. In total, defendant MPR has exchanged over three million member names, addresses, and telephone numbers with other organizations for fundraising solicitation purposes.

Neither defendant MPR's brochures nor its website disclose the volume or identity of the organizations with which MPR exchanges the names and addresses of MPR members for fundraising purposes.

Defendant MPR's brochures do not disclose the fact that MPR exchanges the addresses of MPR members with other organizations for fundraising solicitation purposes.

Defendant MPR's brochures do not disclose the fact that MPR exchanges the telephone numbers of MPR members with other organizations for fundraising solicitation purposes.

for reasons other than it "think[s] MPR members may be interested." Upon reasonable belief, Defendant MPR's primary standard for exchanging the names, addresses, and telephone numbers of its members with a particular organization is whether such exchange will benefit MPR's fundraising activities. [] Defendant MPR has shown no evidence that it seeks to determine the interest of its members in divulging their names, addresses, or telephone numbers for fundraising solicitation purposes to organizations ranging from the Democratic National Committee, a political party, to groups engaged in lobbying efforts on controversial issues such as abortion and environmental regulation.

A. The Charitable Fraud Section of Minn. Stat. 309.55 Does Not Apply To MPR's Disclosures About List Exchange Practices.

No charitable organization and no person acting on behalf of a charitable organization shall use or employ any fraud, false pretense, false promise, misrepresentation, misleading statement, misleading name, mark or identification, or deceptive practice, method or device, with the intent that others should rely thereon in connection with any charitable solicitation . . . .

. . . including any such actions or omissions designed to confuse or mislead a person to believe that such organization is another organization having the same or like purposes [identity fraud]; or to believe that the funds being solicited are or will be used for purposes and programs conducted within or for persons located within the state of Minnesota when such is not the case [location fraud]; or to otherwise present purposes and uses of the funds which are not as provided within the purposes and uses filed upon registration of said organization under this chapter, or if no such registration has been filed, then as provided under the exemption of said organization from federal and state income taxes as an organization formed and operating for charitable purposes as defined herein [purposes fraud].

a) identity fraud

People v. LeGrande, 309 N.Y. 420, 131 N.E.2d 712 (1956): women dressed like nuns to make solicitations for a church, but were not nuns and kept for themselves all collections except $2.50 given each day to a minister who provided the garb.

People v. Orange County Charitable Services, 73 Cal.App.4th 1054, 87 Cal.Rptr.2d 253 (Cal. Ct. App. 4th Dist. 1999), review denied: professional fundraisers falsely represented themselves to be, at various times, doctors, police officers, firefighters, or veterans, for example "falsely telling prospective donors they are raising funds to rush a daughter to see her dying father one last time, or saying they are trying to get together enough money for a nonexistent shelter for homeless veterans."

Commonwealth v. Society of the 28th Division, A.E.F. Corp., 538 A.2d 76 (Pa. 1988): professional fundraisers falsely told contributors they were members of the Pennsylvania National Guard.

Commonwealth v. Whitcomb, 107 Mass. 486 (1871): in requesting contribution, person falsely represented himself as a Methodist minister from another state who had been robbed that day of all his money and claimed to be utterly destitute.

b) location fraud
Johnston County Tuberculosis Ass'n v. North Carolina Tuberculosis and Respiratory Disease Ass'n, 190 S.E.2d 264 (N.C. Ct. App. 1972): claim of location misrepresentation rejected, local charity objected to statewide charity soliciting local contributions with letterhead featuring local county map and name.

c) purpose fraud
Commonwealth v. Atwood, 601 A.2d 277 (Pa. Sup. Ct. 1991), appeal denied, 607 A.2d 249 (Pa. 1992): among other misrepresentations, television evangelist "borrowed" a valuable ring from a woman for use on one of his broadcasts but then pried out the stones from the ring and had them reset in another ring.
Commonwealth v. Society of the 28th Div., supra: fundraisers kept money for themselves which had been contributed for orphans of the Pennsylvania National Guard.
Baker v. State, 97 N.W. 566 (Wis. 1903): falsely representing contributions would be given to an orphan asylum.
Labuwi v. Hathaway, 170 N.W. 654 (Wis. 1919): person conducting an entertainment falsely represented that the proceeds would go to the Red Cross.

d) endorsement fraud
People v. Caldwell, 290 N.E.2d 279 (Ill. Ct. App. 1st Dist. 1972): charity art auction organizer used two persons' names in promotional literature without their written permission.

Blenski v. State, 245 N.W.2d 906 (Wis. 1976): receipt provided to donor after contribution to food drive used five persons' names and testimonials without their written permission.

e) allocation fraud
Commonwealth v. Society of the 28th Div., supra: fundraising organization failed to disclose percentage of contributions actually going to charity.

People v. Orange County Charitable Services, supra: same.

This brief review of reported charitable fraud cases includes cases from various jurisdictions, over a long period of time, and both civil and criminal enforcement actions, in order to illustrate the nature of charitable fraud actions. Notably lacking from this review are any cases involving alleged misrepresentations related to exchanges of charitable donor lists, let alone details like frequency, address, telephone number or identity of exchange organizations. The reason is simple: neither the Minnesota statute nor other charitable fraud statutes include list exchanges within their scope.

The State is asking this Court to extend the charitable fraud statute into new territory. The Complaint does not address the solicitation of charitable funds, as covered by the statute, but the ancillary use of data gathered during the solicitation process. MPR's statements about its list exchange practices would not be "charity fraud," even if the conclusory allegations of misrepresentation were true. The Court should reject this novel cause of action and dismiss the Complaint.

B. Granting the Relief Requested for the State's Fifth Allegation Concerning MPR's Choice of List Exchange Organizations Would Violate the First Amendment.

the reality that [charitable] solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views on economic, political, or social issues, and [] the reality that without solicitation the flow of such information and advocacy would likely cease.

The task of this court is to determine whether the criteria which the state establishes for entry into the profession of fund-raiser in some way infringes upon the First Amendment rights of the party seeking entry. For example, it is clear that Minnesota could not deny a license to a professional fund-raiser based upon the fund-raiser's political or religious statements or beliefs.

Id., 634 F. Supp. at 1500 (emphasis added). Similarly in the present case, the State seeks to impose a civil fine and injunction based upon MPR's choice of speech (list) exchangees. Indeed, the State's Complaint specifically challenges whether MPR properly chose to exchange lists with "organizations ranging from the Democratic National Committee, a political party, to groups engaged in lobbying efforts on controversial issues such as abortion and environmental regulation." (Compl. 22.)(13) This claim is not a "content neutral" imposition on MPR's actions, but an exercise of State power to attack MPR's substantive choices about speech it has chosen to make available to its donors. The claim misuses the charitable solicitation fraud statute to engage in censorship.(14)

Finally, the nature of the proof required for this fifth allegation highlights the intractably unconstitutional nature of the State's claim. This allegation concerns MPR's subjective process for determining organizations in which it believes its members may be interested. Even the inquiry into these processes violates MPR's free speech rights and chills the free expression protected by the First Amendment. Prosecution of the State's fifth allegation would require MPR to justify the reasons why it selected particular list exchange organizations.(15) But MPR's choice of speech recipients and choice of speech content are no business of the State. The Court should dismiss claims at the first opportunity which by their nature subject a speaker to a chilling of First Amendment rights by the very process of answering, discovery, and judicial inquiry.(16) The State's fifth allegation should be dismissed.

Conclusion

For all these reasons, Minnesota Public Radio respectfully requests that the Court grant its motion and dismiss the Amended Complaint in its entirety.

Dated: ____________________, 2000

FAEGRE & BENSON LLP
Eric E. Jorstad, #216987
J. Hazen Graves, #158781
Robert L. Schnell, #97329
2200 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-3901
(612) 336-3000

Attorneys for Defendant Minnesota Public Radio
M2:20286338.06

1 It is not clear from the Complaint whether the State alleges that each of the five alleged misrepresentations constitutes a separate violation of Minn. Stat. § 309.55, subd. 5, or that each of the three MPR communications (Website, 1999 brochure and 1996 brochure) constitutes a separate violation, or that each separate list exchange (400) or each use of each name in a list exchange (3 million) constitutes a separate violation. Because the State alleges that the nature of the violation is misrepresentation, the relevant "separate violation[s]" should be considered the three communications or, at most, the five alleged misrepresentations within those three communications. Should the State assert instead that each list exchange or each use of each name in a list exchange constitutes a separate violation, that assertion would be barred under Bell v. United States, 349 U.S. 81 (1955); see Blenski v. State, 245 N.W.2d 906 (Wis. 1976).

2 "Occasionally" is defined as, "at times, from time to time, now and then." Random House Dictionary of the English Language at 1339 (2d ed. unabridged). In the employment context, doctors' orders restricting a worker to activities performed "occasionally" is defined as an activity performed up to one-third of the time. U.S. Dept. of Labor, Dictionary of Occupational Titles at 1013 (4th Ed. 1991); Social Security Ruling 83-10, 20 C.F.R. § 404.1567(a) (defines "occasionally" as from very little up to one-third of the time). See also Minn. Stat. § 167.27, subd. 8(2) (defines "occasional" sales or leases of motor vehicles exempt from certain requirements as the sale or lease "of not more than five motor vehicles in a 12-month period"); Minn. Stat. § 169.72, subd. 4 ("occasional" use of studded snow tires permitted in state, defined as no "more than 30 days in any consecutive six-month period"); Minn. Stat. § 245A.02, subd. 6a (drop-in child care program defined as program of "occasional" use "up to a maximum of 90 hours per child, per month"). The term is not defined within the Minnesota charitable solicitation statute. Given the imprecise nature of the term, MPR's average exchange of each member's information once every 53 days certainly falls within the zone of reasonable interpretation of "occasionally."

3 The State might contend that "occasional" exchanges should be measured by the frequency of list transactions (every 4.5 days), not the frequency of average member directory information transactions (every 53 days). Because the allegation is "misrepresentations to donors," the proper frame of reference is the expectation of individual donors with respect to exchanges of their own directory information, i.e., once every 53 days.

4 One searches in vain for any such obligation imposed in any section of the law, Minn. Stat. §§ 309.50 et seq. The State appears to be attempting to use its regulatory power to create new laws.

5 In order to allege a fraudulent omission, the State would have to allege as an essential element that MPR had a duty to disclose the omitted statement. But it has failed to do so. See Midland Nat'l Bank v. Perranoski, 299 N.W.2d 404, 413 (Minn. 1980) (duty to disclose must underlie allegation of fraudulent omission); Klein v. First Edina Nat'l Bank, 196 N.W.2d 619 (no fraudulent omission unless law imposes duty to disclose); cf. Basic Inc. v. Levinson, 485 U.S. 224 (1988) (same principle in securities fraud context).

6 Even if this "undisclosed identity" allegation were legally relevant, the allegation is baseless. MPR consistently describes the list exchangees as "selected third parties" (Compl. Exh. 1 at 11), "select companies and organizations, including other public radio stations and programs" (Id.), "other organizations" (Compl. Exh. 1 at 3, also Exh. 4), and "other organizations in which we think MPR members may be interested" (Compl. Exh. 3 at 6, also Exh. 5 at 2). There are no factual allegations in the Complaint that any of these statements is false or misleading.

7 It should also be noted that MPR, like all groups engaging in charitable fundraising solicitations, has a First Amendment right to engage in telephone solicitations, which may not be prohibited by the government. See Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 464 N.E.2d 55 (Mass.), cert. denied, 469 U.S. 858 (1984).

8 The phrase indicates not only MPR's intent to exercise its subjective discretion ("we think") but also that the focus of that discretion is the subjective frame of mind of MPR members ("may be interested"). The State's allegation that MPR should have employed some objective method to ascertain member interests misconstrues the phrase actually used by MPR. Moreover, what objective data would confirm MPR members' (plural) true interests: one interested member? two? ten percent? a majority? Is MPR's representation about its choice process even capable of being proved true or false? The bottom line, for this motion, is that the State has not pleaded facts which, if true, would establish that MPR committed fraud with this representation.

9 The State's failure to plead facts in support of its claim is particularly telling in the area of charitable solicitation law, where the Attorney General is given broad powers of investigation and discovery without commencing a civil action. Minn. Stat. § 309.533, subds. 1 & 5.

10 In addition, the State's fifth claim asks this Court to restrict MPR's rights of free speech and free association protected under the First Amendment. The unconstitutionality of this claim is discussed in detail in Part II.B, below, and provides a separate reason to dismiss the claim in addition to the reasons stated in this Part I.

11 The standard is different for commercial speech, where the government may restrict any false or misleading communication. Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 563 (1980). Fully-protected speech - even when false - may not be restrained without an extraordinary showing, Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976), nor may it be compelled, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974) ; and damages may not be imposed for fully-protected speech without some showing of fault or scienter by the speaker, Gertz v. Robert Welsh, Inc., 418 U.S. 323 (1976). At the least, the State's fifth claim could not survive First Amendment scrutiny without pleading and proving that MPR deliberately or recklessly lied to donors about its subjective process for choosing list exchange organizations. The State has not pleaded that kind of claim here, nor could it consistent with Rule 11.

12 Significantly, the Complaint alleges no facts directly regarding MPR's decision process, despite the Attorney General's extensive investigatory powers in this area. See note 9, supra. Instead, the State points to the identity of MPR's speech recipients and, substituting its judgment for MPR's, infers that MPR could not possibly have thought about its members' interests in making those choices. That inference does not withstand Rule 12 scrutiny and violates the First Amendment.

13 MPR chose to discontinue list exchanges with political parties and political candidates in 1999, as stated in its Member List Policy, Compl. Exh. 1 at 3-4.

14 The State's first four allegations are "content neutral" in this respect, as they concern alleged misrepresentations not about MPR's choice process, but about such viewpoint-neutral matters as the frequency and scope of disclosure of directory information.

15 One can imagine (and the State just served) an interrogatory directed from the State to MPR asking MPR to detail all facts which show that its members would be "interested" in, or "benefit" from, having their contact information traded with, e.g., Planned Parenthood, the Democratic National Committee, the National Wildlife Federation, or other particular organizations. Such an intrusive, McCarthy-esque interrogatory would be patently unconstitutional.

16 Where a plaintiff challenges "conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights" requires more exacting scrutiny of the complaint at the Rule 12 stage of proceedings. Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976), cert. denied, 430 U.S. 940 (1977); see also New York Times Co. v. Sullivan, 376 U.S. 254, 267-83 (1964) (recognizing the potential chilling effects of litigation concerning conduct protected by the First Amendment); cf. Foley v. WCCO Television, Inc., 449 N.W.2d 497, 504 (Minn. Ct. App. 1989) (recognizing judicial inquiry may adversely affect First Amendment rights), review denied, cert. denied, 497 U.S. 1038 (1990).