11/8/1994: U.S. v. Lopez argued.
Today in Supreme Court History: November 8, 1994
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Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company
"It may well be that no fire will be discovered under all the smoke, but there is enough smoke here ... to warrant the unusual step of ... find[ing] out how this unusual prosecution came about."
From U.S. v. SGO Corp. Ltd., decided Tuesday by Judge Kathleen Williams (S.D. Fla.):
For a six-year period, the Government investigated SGO executives for their role in a money laundering and bribery scheme related to the May, 2016 Philippine elections. The investigation culminated in a six-count indictment ("First Indictment"), returned on August 8, 2024, which charged [executives of] SGO and Smartmatic … [with] conspiracy to violate the Foreign Corrupt Practices Act ("FCPA") (Count I); violations of the FCPA (Count II); conspiracy to commit money laundering (Count III); and international laundering of monetary instruments (Counts IV, V, and VI). The FCPA "prohibits officers of a domestic concern from making corrupt payments to a 'foreign official.'"
SGO was not charged. In fact, SGO had been cooperating with the Government since 2021, years before the First Indictment was returned. {Although the Parties may dispute the breadth and quality of SGO's efforts to cooperate, there is no question that SGO and the Government were engaged in discussions and the exchange of documents related to this matter.}
The original trial date was set for October 7, 2024 … [but was eventually reset for 2026]….
As the court notes, the Trump Administration was skeptical of FCPA prosecutions, deprioritized FCPA enforcement generally, and "elected to close FCPA investigations into multiple companies." But despite that, in October 2025, the government added SGO as a defendant in the case. SGO then moved to dismiss the superseding indictment, alleging vindictive and selective prosecution, and sought discovery in support of that motion, "premised on political events that have embroiled Smartmatic in the wake of the 2020 election":
Since that election, multiple high-profile individuals and organizations connected to then-Former President Donald Trump have alleged that Smartmatic, a subsidiary of SGO, interfered in the election…. President Trump has also reposted content blaming Smartmatic for interfering in United States and Venezuelan elections, calling Smartmatic "disgraceful" and expressing that those who "rigged" the 2020 election must pay. In response to the statements by President Trump's confederates, Smartmatic brought various defamation suits, which are largely ongoing. SGO contends that President Trump's personal animus against SGO and assertion of its rights against President Trump's confederates precipitated the filing of the Superseding Indictment….
The court lays out the demanding standard for defendants' attempts to get discovery related to allegations of vindictive or selective prosecution, but concludes that in this case the standard was met. A brief excerpt (for more, including citations to precedents to which the court analogizes this case, see the full opinion):
Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward
From U.S. v. Spitzer (N.D. Ga.), filed by Magistrate Judge John Larkins on Oct. 9, and just affirmed Wednesday by Judge Eleanor Ross:
The indictment alleges that on July 23, 2024, Mr. Spitzer posted the following message on the website for the American Federation of Teachers, a labor union, regarding its president ("Individual #1"):
[Individual #1] is an ignorant incompetent cunt that should be worried for her safety. Fact that she is still alive. Liberal nazi deserves the bullet to head. Resign before she ends like what happened to trump at his speech. They won't miss fat bitch.
The indictment alleges that the post violated 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce any communication containing a threat to injure another person.
Mr. Spitzer argues that assuming the allegations in the indictment were true, it fails to state an offense because the posting was not a "true threat," or even a threat at all, and thus is protected by the First Amendment. As he sees it, the posting was simply political speech about a public figure and did not advocate the use of force or violence against Individual #1.
{In an effort to contextualize the posting, Mr. Spitzer points to an internet article in which Mike Pompeo, the former U.S. Secretary of State, described Individual #1 as "the most dangerous person in the world"; examples of "conservative politicians and commentators" criticizing her approach to school closures during the pandemic; and examples of Individual #1's own political statements. But these are not facts that the Court can consider at this juncture because they fall outside the four corners of the indictment.}
Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others
From the Arkansas Supreme Court Thursday:
Evidence exists that Givens harvested points from a number of examinees' scores and then added them to other examinees' scores within the same test administration. Thus, she unilaterally elevated some examinees' scores to the minimum passing score of 270 or greater. Brech also identified at least one instance in which score alterations may have reduced an examinee's score-who otherwise would have passed-to a failing score. And in at least one instance, the individual who should have received the top score on the Arkansas Bar Examination had their score reduced thereby naming another examinee as the recipient of the highest score on the exam. If these allegations are true, these actions constitute an unprecedented breach of public trust.
The full statement from the court:
An internal review by Robert Brech, Executive Director of the Supreme Court of Arkansas's Office of Professional Conduct and Programs, has uncovered extensive irregularities involving the Court's Office of Professional Programs and the administration of the Arkansas Bar Examination. The matter was turned over to state and federal authorities.
As of today, the Prosecuting Attorney's Office for the Sixth Judicial District filed formal criminal charges against Nancie Givens for 65 counts of tampering with a public record under Arkansas Code Annotated section 5-54-121 in connection with the alleged altering of numerous Arkansas Bar Examination scores and the deletion of files purportedly intended to conceal that misconduct. The charges followed a criminal investigation initiated in April 2026 by the Arkansas State Police and the Federal Bureau of Investigation. As always, all defendants are presumed innocent until proven guilty in a court of law.
Attorney Fee Award Cut from $100K to $50K, Partly as Sanction for Hallucinated Citations
In Ellis v. McNeese, written by Kansas District Court Judge W. Lee Fowler (decided April 22 but just posted on Westlaw), plaintiff's lawyer prevailed in getting his client reinstated as a nursing student who was punished by Flint Hills Technical College for a religiously motivated vaccine refusal. But when it came to getting attorney fees (which are allowed by the Kansas Preservation of Religious Freedom Act), the lawyer fared worse. The court concluded, for various reasons, that the lawyer would normally have been entitled to $100K in fees rather than the $300K he claimed, but then it went on to reduce the fees even further:
On October 20, 2025, Plaintiff's counsel filed a document entitled Opposition to Defendants Motion to Alter Judgment. Within that pleading the Plaintiff's counsel falsely cited two cases, State v. Baker, 290 Kan. 842, 235 P.3d 424 (2010) and Gannon v. State, 298 Kan. 110 310 P.3d 1196 (2014) for propositions of legal authority that are inconsistent with the case cited. In addition, there were no fewer than six false citations to non-existent Kansas case law. When confronted by these misrepresentations and facing a Motion for Sanctions, Plaintiff's counsel did not deny the allegations or explain how he came up with the false citations, he simply responded that the legal propositions contained in his pleadings were accurate and that his "citation irregularities were technical and clerical…".
Citations to non-existent cases can never be considered technical or clerical errors. They are not formatting or citation errors. They are unprofessional and sanctionable. This Court suspects that Plaintiff's counsel used a generative artificial intelligence program as an aid in drafting his pleading, but no such admission was forthcoming from counsel. Counsel's response to the claim for sanctions is simply the proposition of "no harm, no foul". In addition, this is not the only time Plaintiff's counsel has submitted false citations to a district court. See Anderson v. Aldrich, Douglas County District Court Case No. DG-2025-CV-429, Memorandum Opinion dated March 13, 2026.
November 7 as Victims of Communism Day - 2026
I have long advocated using May 1 for this purpose. But November 7 is a worthy alternative candidate, which I am happy to adopt if it can attract a broad consensus.
NOTE: The following post is largely adapted from last year's November 7 post on the same subject.
Since 2007, I have advocated designating May 1 as an international Victims of Communism Day. The May 1 date was not my original idea. But I have probably devoted more time and effort to it than any other commentator. In my view, May 1 is the best possible date for this purpose because it is the day that communists themselves used to celebrate their ideology, and because it is associated with communism as a global phenomenon, not with any particular communist regime. However, I have also long recognized that it might make sense to adapt another date for Victims of Communism Day, if it turns out that some other date can attract a broader consensus behind it. The best should not be the enemy of the good.
As detailed in my May 1 post from 2019, November 7 is probably the best such alternative, and over time it has begun to attract considerable support. Unlike May 1, this choice is unlikely to be contested by trade unionists and other devotees of the pre-Communist May 1 holiday. While I remain unpersuaded by their objections on substantive grounds, pragmatic considerations suggest that an alternative date is worth considering, if it can thereby attract broader support.
The November 7 option is not without its own downsides. From an American standpoint, one obvious one is that it will often fall close to election day. On such occasions, a November 7 Victims of Communism Day might not attract as much attention as it deserves, because many will - understandably - be focused on electoral politics instead. Nonetheless, November 7 remains the best available alternative to May 1; or at least the best I am aware of.
For that reason, I am once again doing a Victims of Communism Day post on November 7, in addition to the one I do on May 1. If November 7 attracts more support, I may eventually switch to that date exclusively. But, for now, I reserve the options of returning to an exclusive focus on May 1, doing annual posts on both days, or switching to some third option should a good one arise.
In addition to its growing popularity, November 7 is a worthy alternative because it is the anniversary of the day that the very first communist regime was established in Russia. All subsequent communist regimes were at least in large part inspired by it, and based many of their institutions and policies on the Soviet model.
The Soviet Union did not have the highest death toll of any communist regime. That dubious distinction belongs to the People's Republic of China. North Korea probably surpassed the USSR in the sheer extent of totalitarian control over everyday life. Pol Pot's Cambodia may have surpassed it in terms of the degree of sadistic cruelty and torture practiced by the regime, though this is admittedly very difficult to measure. But all of these tyrannies - and more - were at least to a large extent variations on the Soviet original.
Having explained why November 7 is worthy of consideration as an alternative date, it only remains to remind readers of the more general case for having a Victims of Communism Day. The following is adopted from this year's May 1 Victims of Communism Day post, and some of its predecessors:
The Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny.
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had comparably horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong's Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
November 7, 2017 was the 100th anniversary of the Bolshevik seizure of power in Russia, which led to the establishment of the first-ever communist regime. On that day, I put up a post outlining some of the lessons to be learned from a century of experience with communism. The post explains why the lion's share of the horrors perpetrated by communist regimes were inherent flaws of the system. For the most part, they cannot be ascribed to circumstantial factors, such as flawed individual leaders, peculiarities of Russian and Chinese culture, or the absence of democracy. Some of these other factors, especially the last, probably did make the situation worse than it might have been otherwise. But, for reasons I explained in the same post, some form of dictatorship is virtually inevitable in a socialist economic system where the government controls all or nearly all of the economy.
While the influence of communist ideology has declined since its mid-twentieth century peak, it is far from dead. Largely unreformed communist regimes remain in power in Cuba and North Korea. In Venezuela, the Marxist government's policies have resulted in political repression, the starvation of children, and a massive refugee crisis - the biggest in the history of the Western hemisphere. The removal of President Nicolas Maduro has so far done little to change the nature of that regime.
In Russia, the authoritarian regime of former KGB Colonel Vladimir Putin has embarked on a wholesale whitewashing of communism's historical record. Putin's brutal and indefensible invasion of Ukraine owes more to Russian nationalist ideology than communism. But it is nonetheless fed in part by his desire to recapture the supposed power and glory of the Soviet Union, and his long-held belief that the collapse of the USSR was "the greatest geopolitical catastrophe of the century." It is also telling that most communists in Russia and elsewhere have joined with nationalists in backing Putin's line on the war.
In China, the Communist Party remains in power (albeit after having abandoned many of its previous socialist economic policies), and has recently become less tolerant of criticism of the mass murders of the Mao era (part of a more general turn towards greater repression).
China's horrific repression of the Uighur minority is reminiscent of similar policies under Mao and Stalin, though it has not - so far - reached the level of actual mass murder. But imprisoning over 1 million people in horrific concentration camps is more than bad enough.
Far-left support for Hamas since the horrific October 7, 2023 terrorist attack is yet another reminder of the inherently evil nature of communist ideology. Backing terrorism is part of a long history of support for repression and mass murder. Not all extreme socialists of the type who support Hamas are communists. But the latter are a subset of the former.
In the West, the popularity of "democratic socialism" in some quarters is a sign that many have failed to learn the lessons of the communist experience. Democratic socialism has many of the same flaws as its authoritarian counterpart, and - as the Venezuelan case shows - is unlikely to stay democratic for long, if implemented. Ironically, in their support for sweeping government control of the economy, democratic socialists have much in common with MAGA nationalists.
Victims of Communism Day is also a good time to remember our duty to help those victims. Among other things, it is unjust to deport migrants fleeing oppressive Marxist dictatorships, like those Cuba, Nicaragua and Venezuela, as the Trump Administration seeks to do to hundreds of thousands who entered the US legally under the CNVH program. This year, Trump ramped up efforts to deport Cubans back to their communist oppressors.If some on the left tend to ignore the evils of socialism, many on the nationalist right have been exacerbating the plight of its victims.
In sum, we need Victims of Communism Day because we have never given sufficient recognition to the victims of the modern world's most murderous ideology or come close to fully appreciating the lessons of this awful era in world history. In addition, that ideology, and variants thereof, still have a substantial number of adherents in many parts of the world, and still retains considerable intellectual respectability even among many who do not actually endorse it. Just as Holocaust Memorial Day serves as a bulwark against the reemergence of fascism, so this day of observance can help guard against the only ideology with an even greater number of victims.
Today in Supreme Court History: November 7, 1922
11/7/1922: Oregon enacts the Compulsory Education Act.
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Short Circuit: A roundup of recent federal court decisions
Geek therapy, crack felony, and some Scooby Snacks.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
Arkansas Constitution's Right to Bear Arms Provision Strengthened
The old provision dated back to 1868, and read, "The citizens of this State shall have the right to keep and bear arms, for their common defense." The new, which passed 71%-29%, will read:
(a) The citizens of this State shall have the right to keep and bear arms, for:
(1) Their common defense;
(2) Lawful hunting and recreational use; and
(3) Any other lawful purpose.
(b) The right to keep and bear arms under subsection (a) of this section includes without limitation the possession and use of:
(1) Ammunition;
(2) Firearm accessories; and
(3) Firearm components.
(c) The right to keep and bear arms under subsection (a) of this section is a natural, fundamental, and individual right that shall not be infringed.
"Emphatic Swearing"
I was just listening to a great talk about taboo words by Steven Pinker at the FIRE Soapbox conference, and particularly liked this example of "emphatic swearing":
The taboo word is often used to draw a listener's attention, emphasizing the following noun or adjective. For example: "This is really, really fucking brilliant" [that's a reference to the Bono incident that led to FCC action -EV] or "He thinks he's a fucking scoutmaster, Rip Van fuckin' Winkle."
When emphatic and idiomatic swearing is overused, it can lead to a form of English sometimes referred to as "fuck patois." This is a style where swearing is so pervasive that it becomes almost a defining feature of the language. An example of this can be found in the story of a soldier who says, "I come home to my fucking house after three fucking years in the fucking war, and what do I fucking well find? My wife in bed, engaged in illicit sexual relations with a male!"
I think there's more going on in the soldier story than just fuck patois—indeed, what makes it emphatic might be the absence of "fuck" in the closing phrase—but in any event it's pretty funny.
Note that the term "fuck patois" is often credited to Tom Wolfe.
Lawsuit Against New York AG Letitia James over Letter Alleging Group's Event Was Connected to "White Nationalist Ideals" …
can go forward on First Amendment coercion, First Amendment retaliation, and defamation grounds, a federal district court concludes.
From Magistrate Judge Kenneth Schroeder's Report and Recommendation Sept. 22 in Doyle v. James, affirmed Wednesday by Judge John Sinatra (W.D.N.Y.), plaintiff's allegations:
Plaintiff Paul Doyle ("Doyle") is the Senior Pastor at Cornerstone Church in Batavia, New York. Cornerstone is a small, rural church with a history of service and community outreach. Cornerstone has worked to build relationships with communities of color and was aggressive in their assistance to victims of the mass shooting in Buffalo.
Plaintiff Clay Clark ("Clark") is the owner and operator of The Thrive Time Show, a highly successful business podcast. Clark has twice been named the US Small Business Association Entrepreneur of the Year and is the recipient of other business awards.
"ReAwaken America" is a conservative political movement that hosts events throughout the country. The ReAwaken America Tour ("the Tour") was scheduled to host an event in Rochester, New York on August 12, 2022 at the Main Street Armory. However, after community members and local politicians spoke out against the event, the Armory cancelled it.
The Tour then reached out to Doyle to see if Cornerstone would be willing to host the event. Doyle met with groups from Rochester to try to understand their concerns and concluded that "the Tour was not what was being portrayed in the media and by government officials." Doyle thus agreed to host the event at Cornerstone "due to his strong belief that free speech should not be restricted and those who attempt to exercise it should not be intimidated, particularly by government officials." The event was scheduled for August 11-13, 2022.
On August 3, 2022, New York Attorney General Letitia James sent a letter addressed to Clark and General Michael Flynn—a co-organizer of the Tour—to Doyle's home address "c/o Cornerstone Church." Plaintiffs allege that the letter was "nothing less than an attempt to covertly intimidate and threaten the Plaintiffs into shutting down the event."
James's letter stated, in part:
As New York's top law enforcement officer, I have significant concerns that the ReAwaken America Tour's upcoming event at the Cornerstone Church in Batavia, New York on August 12 and 13 could spur extremist or racially motivated violence. These concerns center around the event's proposed dates, which coincide with the five-year anniversary of the deadly Unite the Right rally in Charlottesville, Virginia, and past extremist statements made by yourselves and the other featured speakers on the tour.
Florida Ban on Material Support to "Domestic Terrorist Organizations" Can't Be Applied to Legal Advice to CAIR
From CAIR-Foundation, Inc. v. DeSantis Wednesday by Chief Judge Allen Winsor (N.D. Fla.):
The Florida Legislature recently enacted a new law that allows state officials to designate certain groups "domestic terrorist organizations" (DTOs). Soon thereafter, Florida's Governor and Cabinet designated Plaintiffs CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations take effect on November 5, 2026. At that point, Plaintiffs and others supporting them will be subject to criminal and civil penalties for certain activities. In this action, Plaintiffs contend the new law (or parts of it) and the DTO designations violate their First Amendment freedoms and due process protections….
This is Florida's second effort to designate Plaintiffs as terrorist organizations. Previously, the Governor issued an executive order that designated Plaintiffs as terrorist organizations and prevented them "or 'any person known to have provided material support or resources' to [them] 'from receiving any contract, employment, funds, or other benefit or privilege' from executive or cabinet agencies or from any county or municipality of the state." This court preliminarily enjoined enforcement of the executive order, finding it likely violates the First Amendment. [See this post on that decision. -EV] The Governor appealed, and the appeal remains pending.
After this court's decision, the Florida Legislature enacted HBs 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8, which implements this legislation. Pursuant to the legislation and rule, Florida's Chief of Domestic Security issued a written notice of intent to designate Plaintiffs as DTOs…. [T]he Governor and Cabinet held a public meeting, at which they approved the designations….
{[U]nder [Fla. Stat.] § 775.33(3), "[a] person who knowingly provides material support or resources to a designated … domestic terrorist organization" commits a first-degree felony. See also Fla. Stat. § 775.33(1)(d) ("'Material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.").}
Senator-Governor Klobuchar and the Problem of the Received Wisdom
[This post is co-authored with Professor Seth Barrett Tillman.]
On November 3, 2026, U.S. Senator Amy Klobuchar (Minnesota-Democratic Party) was elected Governor of Minnesota. It is expected that, at some point, she will resign her U.S. senate seat, then take up the governor's position, and subsequently make a temporary appointment to fill her then-vacant senate seat. That dance of musical chairs happens from time-to-time. But some have also reported that Klobuchar must resign her senate seat. CBS News quoted political science professor David Schultz (Hamline University, Minnesota): "At some point she's going to have to step down as U.S. [S]enator." That might be true pragmatically—as a matter of politics. And sometimes, federal and state constitutional and statutory law bar dual-officeholding. Sometimes, but not all the time. In these circumstances, the law does not expressly bar dual-officeholding where, as here, the two positions are U.S. Senator and Minnesota Governor.
The U.S. Constitution's Incompatibility Clause (Article I, Section 6, Clause 2) bars U.S. Senators and Representatives from concurrently holding certain other federal positions. The position of governor is a state, not a federal position. So, this provision has no application here.
The Minnesota State Constitution has a similar provision (Article IV, Section 5). That provision bars Minnesota's state (not U.S.) Senators and Representatives from holding other state and federal positions. Klobuchar is not a state Senator; rather, she is a U.S. Senator. So, this provision has no application here.
The federal double-dipping statute, 5 United States Code Section 5533 bars drawing two salaries for two positions, where both positions are at the federal level. It has no application to state positions, e.g., governor. Moreover, it does not bar actual dual-officeholding; rather, it bars receiving two streams of full-time compensation or salary. Again, this provision has no application here.
Beyond these express provisions of positive law relating to incompatible offices, there are two common law doctrines, announced by state and federal courts, relating to incompatible offices. The more narrow doctrine prohibits one person holding two positions where one position supervises the other position or determines its compensation. Here, the two positions—U.S. Senator and Minnesota Governor—neither supervise one another, nor determine one another's compensation. So, this doctrine has no application here.
Finally, there is a more expansive common law doctrine relating to incompatible offices. This doctrine holds that, where as a practical matter, one person cannot carry out both sets of duties connected to two positions, the two positions are incompatible. It might be argued that a governor, particularly in an emergency, must reside within her state, and that a U.S. Senator, should generally be on hand, at short notice, to carry out Senate business. Given the physical distance between Minnesota and Washington, D.C., it is not entirely frivolous to suggest that this doctrine might act as a bar here. But the bar here is not distance, it is whether one can practically carry out both sets of duties. Governors frequently leave their states for short periods of time—even for vacations. That's allowable as long as they are within reach by telephone or video link, and as long as they can return quickly in the event of an emergency. Likewise, the U.S. Senate can choose to accommodate a Senator with responsibilities distant from D.C.—the Senate could allow participation in debate by video link, and it could allow remote voting, as long as the votes are reasonably authenticated. In other words, it is not a slam dunk that this expansive doctrine should apply on these facts, particularly given that this doctrine is merely a judicial creation lacking any foundation in both the U.S. Constitution and the Minnesota Constitution. More generally, we should not allow ad hoc judicial creations to supersede democratic elections and add to the qualifications and incompatibilities expressly set out in positive law.
Having one person hold two government positions—including state governor and U.S. Senator—is not a particularly good result. But the fact that a result is bad does not mean, without more, that that result is barred by our law. Not every bad thing is illegal; not every bad result is unconstitutional. And pretending the U.S. Constitution and Minnesota Constitution bar what we think is bad today elevates our intuition into legal duties only by undermining what the legal system actually commands. And if today, our intuition is vindicated, we might do well to remember that tomorrow, it might be someone else's intuition being vindicated and in ways that we might come to regret.
Among those who have considered this issue, I expect that many (and, perhaps, most) believe, as Professor Shultz believes, that Klobuchar must resign her senate seat before she becomes Minnesota's governor. That is, of course, the received wisdom. And that should tell you all you need to know about . . . the received wisdom.
[Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad.]
Man's Criticism of Nonprofit Found to Be "Harassment," Leads to Order Banning Photographing Company's Directors and Officers
From Monday's decision in Lake Itasca Region Pioneer Farmers, Inc. v. Fenske, by Minnesota Court of Appeals Judge Bratvold, joined by Judges Ede and Schmidt:
Pioneer Farmers … is a Minnesota nonprofit corporation that "organizes and conducts annual public demonstrations of historical steam-powered agricultural equipment at Itasca State Park and elsewhere for educational and historical purposes." Pioneer Farmers also owns real property near the north entrance of Itasca State Park in Park Rapids. Appellant Gerald W. Fenske is a former member of Pioneer Farmers. Fenske's membership was revoked in May 2023 for, according to allegations by Pioneer Farmers, "repeated disruptive behavior and conflicts with other members."
In December 2025, Pioneer Farmers petitioned the district court for an HRO [harassment restraining order] against Fenske, alleging that Fenske engaged in harassment "directed at" Pioneer Farmers and its "directors and officers." Along with the petition, Pioneer Farmers filed an affidavit by its president, who averred that, following the revocation of his membership, Fenske made "false and/or misleading complaints to various Minnesota state agencies" about Pioneer Farmers. In response, Pioneer Farmers sent Fenske two cease-and-desist letters.
According to the president's affidavit, after receiving the cease-and-desist letters, Fenske contacted individual members, made "unfounded ownership claims regarding equipment" on Pioneer Farmers' property, and continued "to attempt to stir discord among associated organizations." Fenske also maintained a personal web page titled, "Itasca Pioneer Farmer's Show Cancelled—Allegations of Unsafe Boiler Operation Reason for Cancellation." The president averred that Pioneer Farmers had never cancelled its annual event "for that reason."
In January 2026, the district court conducted a two-day evidentiary hearing on the petition. In March 2026, the district court granted the HRO. The district court found that (1) Fenske maintained "a publicly accessible website containing statements about [Pioneer Farmers'] annual event that imply the event's cancellation, resulting in confusion to the public," and (2) Fenske "contacted three board members after being served with a Cease & Desist letter." Based on these findings, the district court determined that "reasonable grounds" showed that Fenske "engaged in harassment which has or is intended to have a substantial adverse effect on safety, security, or privacy" of Pioneer Farmers.
Today in Supreme Court History: November 6, 1989
11/6/1989: Employment Division v. Smith argued.
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