Anti-“Harassment” Order Based on Letters to Employer Alleging a Catholic School Teacher Was Gay

I’m writing an article on the First Amendment, criminal harassment law, and the constitutional distinction between speech said to a particular objecting person and speech said to the public; and in the process, I ran across this 2001 case that I thought I’d mention, since it could equally come up today.

Minnesota law provides, in relevant part,

“Harassment” includes: … repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another ….

The court may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person if … the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment….

A first-offense violation of the restraining order is generally both a misdemeanor and punishable as contempt of court, but when a person “knowingly violates the order … because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability …, age, or national origin,” the violation is a felony.

Now note that the statute isn’t limited to traditional telephone harassment or stalking that only involves unwanted speech to the target. It potentially also includes unwanted speech about the target, so long as it is “repeated” and “[has] a substantial adverse effect or [is] intended to have a substantial adverse effect on the safety, security, or privacy” of the target. This means the law potentially cuts off not just speech to one unwilling listener (or a few unwilling listeners), but also speech to willing listeners as well. The Minnesota courts have read the statute as covering two categories of unprotected speech — “‘fighting words’ likely to cause the average addressee to fight or protect one’s own safety, security, or privacy” and “‘true threats’ evidencing an intent to commit an act of unlawful violence against one’s safety, security or privacy” — but also “speech or conduct that is intended to have a substantial adverse effect, i.e., is in violation of one’s right to privacy.” This latter category does not correspond to any settled First Amendment exception, and it’s not at all clear what exactly it means.

Now on to the case, Faricy v. Schramm (Minn. Ct. App. 2001):

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” Schramm based his suspicion on the fact that Faricy’s car displays an Apple Computer decal [apparently, one of the rainbow ones -EV] and that Faricy “lives or has lived … in a neighborhood that has a higher population of homosexuals.” Schramm had determined Faricy’s place of residence through an internet search. Schramm contended in the letter that “both wearing a rainbow sticker on your car [and] living in a neighborhood where more homosexuals live is enough to send up a red flag.” In closing, Schramm asked school officials

what can be done to learn if Mr. Faricy chooses a … homosexual lifestyle and if he is a sodomite, then what is his future around children at [the] school?

Citing fear that Schramm’s “behavior will escalate into something possibly dangerous,” Faricy petitioned the district court to issue a harassment restraining order. After hearing testimony from both Faricy and Schramm, the district court found that Schramm had engaged in two “acts of harassment.” The first act consisted of sending a letter to Faricy’s employer suggesting that Faricy might be gay and that, if he were gay, he should not be allowed to teach in the school. The district court identified the second act of harassment as Schramm’s inclusion in his letter of information about Faricy’s place of residence and the decal on his car. On the basis of these findings, the district court issued a one-year restraining order prohibiting Schramm from contacting Faricy and from engaging in further acts of harassment….

Since the order banned “further acts of harassment,” it would have criminalized — indeed, made a felony, given that Schramm was motivated by Faricy’s perceived sexual orientation — any similar further communications, for instance to other officials at the school or the diocese. Presumably the court’s theory was that Schramm’s e-mail intruded on Faricy’s “privacy,” though the appellate opinion doesn’t make that clear.

The Minnesota Court of Appeals reversed, on the grounds that the statute requires “repeated incidents,” and the letter constituted just one incident. But the appellate court didn’t opine on the trial court’s underlying judgment that this is the sort of incident — perhaps if repeated at least once more, as per the statute — that could lead to a restraining order against further such speech. At this point, the only judge who considered that particular question (the trial judge) answered it “yes.”

Note, by the way, that though Minnesota law generally bans discrimination based on sexual orientation, it specifically exempts discrimination by religious institutions, including religious schools. So to the extent that Schramm was calling for Faricy’s being fired, he was calling for an action that was legal. I suspect that even calling for a firing that violates antidiscrimination law is constitutionally protected, given Brandenburg v. Ohio (though query what effect United States v. Williams‘ recognition of a “solicitation” exception to the First Amendment would have on this). But that question wouldn’t come up in this case in any event, because of Minnesota’s religious institution exemption.

Note also that the statute doesn’t require any finding that any allegedly “harassing” accusation is factually false. Schramm’s evidence for Faricy’s supposed homosexuality seems mighty thin, but even if he got that wrong, and that could lead to a civil lawsuit for defamation or false light, or even a criminal libel prosecution (Minnesota has a criminal libel law, though one that seems not to be used these days), the anti-harassment statute is not focused on falsehoods.

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