From Christian Action League of Minn. v. Freeman, decided last week by the Eighth Circuit, in an opinion by Judge Jonathan Kobes, joined by Judge Raymond Gruender:
Minnesota Statute § 609.748(2) allows victims to obtain restraining orders against their harassers…. CAL is a non-profit run by Ann Redding that opposes pornography and sexual exploitation. Its roughly 150 members advocate against sexually oriented publications. One of those publications was City Pages, a Minneapolis newspaper owned by the Star Tribune. Since 2010, CAL has publicly opposed companies that advertise in City Pages. CAL's members believe that, since City Pages runs advertisements for sexually oriented businesses, companies that advertise in City Pages are tacitly endorsing those businesses. CAL primarily advocates through postcards, letters, and emails directed at City Pages' advertisers.
R. Leigh Frost is a lawyer who advertised her firm in City Pages. After Redding noticed one of Frost's advertisements, she sent Frost a postcard asking her to stop buying ad space. The card said, "Porn tears families apart. City Pages promotes strip clubs and porn. As a woman, are you ok with that?" Not long after, Frost's firm received an email and another postcard expressing the same sentiment.
Despite Frost asking CAL to stop contacting her, she received yet another postcard about a week later. Fed up with CAL's messages, Frost filed a petition for a harassment restraining order (HRO) under Minnesota Statute § 609.748(2), which provides that "[a] person who is a victim of harassment … may seek a restraining order." Among other things, it defines harassment as "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, regardless of the relationship between the actor and the intended target." The day after Frost filed her petition, a state court judge issued an HRO against CAL. A few months later, the parties settled and the state court vacated the HRO.
CAL sued Mike Freeman, the Hennepin County Attorney, seeking "declaratory relief and a permanent injunction prohibiting Freeman from prosecuting any HRO under the Statute." The Eighth Circuit concluded that CAL's speech is clearly protected by the statute—and thus that any future HROs barring repetition of CAL's speech would be unconstitutional—but also held that this was so clear (despite the state court's having issued an HRO in the past) that CAL lacked standing and thus no formal declaratory judgment or injunction would be issued:
