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Free Speech

Court Rejects Lawsuit for Sending Gruesome Photos to NRA Lobbyist's E-Mail Address

The Eleventh Circuit threw out a lawsuit brought by former NRA President Marion Hammer.


From today's decision (which strikes me as quite correct) in Hammer v. Sorensen, decided by Judges William Pryor, Robin Rosenbaum, and K. Michael Moore:

Marion Hammer, a well-known lobbyist for the National Rifle Association, appeals the dismissal of her claims against … Lawrence "Lol" Sorensen. Sorensen twice emailed Hammer [at the address publicly listed for her on the Florida Association of Professional Lobbyists site], taking issue with a cause for which Hammer has lobbied. In his two emails, along with messages indicating his disagreement with Hammer's position on assault rifles, Sorensen included a total of four graphic photographs showing wounds inflicted by such weapons….

The first email was titled "Assault Rifle Support Results" and read, "Dear Ms. Hammer, Thought you should see a few photos of handiwork of the assault rifles you support." Embedded within the email message were three extremely graphic photographs of large, gaping wounds to what appear to be a person's leg.

Thirty-one minutes later, Sorensen sent a second email to Hammer's listed lobbyist email address. This one was titled, "One more instructive photo." It stated, "Dear Marion, This photo documents the effect of an outdated military rifle on JFK. Today's assault rifles are far more destructive." Included with the message was another very graphic photograph—this time of the injury to what appears to be President Kennedy's head, after he was shot, as he laid on a table.

Hammer sued, seeking an injunction and damages. No, said the Eleventh Circuit; it began by rejecting her claim under Florida stalking law:

Under Fla. Stat. § 748.0485, a court may issue an injunction against cyberstalking. Section 784.048(1)(d), Fla. Stat., in turn, defines "cyberstalking" as … "engag[ing] in a course of conduct to communicate, or … caus[ing] to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person" "causing substantial emotional distress to that person and serving no legitimate purpose." …

Florida courts have explained that we "broadly construe[]" the inquiry into "legitimate purpose," and that the term "cover[s] a wide variety of conduct." David v. Textor, 189 So. 3d 871, 875 (Fla. Dist. Ct. App. 2016).

For example, Florida courts have found a "legitimate purpose" in communications demanding that the recipient drop his lawsuit or he would be "sorry," id.; a parent's telephone call complaining about a dance-team's decision concerning his daughter's participation on the dance team, Goudy v. Duquette, 112 So. 3d 716, 717 (Fla. Dist. Ct. App. 2013); and a loan maker's text messages seeking repayment of a loan—even though the texts also threatened that the loan maker would tell the recipient's wife about the recipient's affair if the recipient did not pay back the loan, Alter v. Paquette, 98 So. 3d 218, 220 (Fla. Dist. Ct. App. 2012). As these examples convey, Florida courts "have generally held that contact is legitimate when there is a reason for the contact other than to harass the victim," O'Neill v. Goodwin, 195 So. 3d 411, 413 (Fla. Dist. Ct. App. 2016)—even if the victim may find the communication disturbing.

We have no difficulty finding that Sorensen's two emails served a "legitimate purpose" as Florida sweepingly defines the term.  Sorensen sent the two emails to Hammer's email address that she publicly listed in her capacity as a lobbyist for the NRA. And according to Hammer, she was "considered by many to be the most influential Second Amendment state lobbyist in the United States."

Sorensen's emails pertained directly to subject matter about which Hammer lobbied, and they appear to have been clearly intended to dissuade Hammer from continuing to support the availability of assault rifles…. No doubt the embedded photographs substantially turned up the volume on Sorensen's message, but they did not negate his communications' "legitimate purpose," as Florida law broadly construes that term, of trying to persuade Hammer that she should not continue to support the availability of assault rifles….

The court rejected Hammer's claim under Florida harassment law for the same reason, since Florida likewise limits actionable harassment to "a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." The court rejected Hammer's intentional infliction of emotional distress claim, chiefly because that tort applies only to "outrageous" behavior, and the e-mails here didn't qualify:

There is no doubt that the photographs are disturbing: they vividly show gruesome wounds. But we cannot say that they are "beyond all bounds of decency and utterly intolerable in a civilized community," particularly when considered in context. Images that are at least as graphic, if not ghastly, appear in many publicly released movies and sometimes appear in news footage, albeit with warnings.

And here, Sorensen presented the images as part of his attempt to engage with Hammer in a debate on the damage that assault weapons can inflict on human beings. Debates on matters that are the subject of lobbying efforts are an aspect of living in a "civilized community." So whatever else may be said of the images Sorensen included in his emails, we cannot say they were "outrageous."

And the court rejected Hammer's intrusion upon seclusion claim:

Under Florida law, the tort of intrusion upon seclusion is one of four torts falling under the broader heading of invasion of privacy…. "[O]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." [T]he  Supreme  Court  of  Florida  … has required a plaintiff to show an intrusion into a private place and not merely a private activity….

The facts Hammer avers do not establish that Sorensen intruded physically into a "place" or "private quarter" of Hammer's where Hammer had a reasonable expectation of privacy, since Sorensen merely sent his two emails to the email address Hammer publicly lists in association with her lobbying activities for the NRA…. And Hammer alleged no reason for Sorensen to have expected that this professional email address would have been associated with private quarters.

And finally, we do not agree that Sorensen's communications "would be highly offensive to a reasonable person," as Florida law construes that phrase. Florida law equates the "highly offensive to a reasonable person" element from the intrusion-upon-seclusion cause of action with the "outrageousness" element of the intentional-infliction-of-emotional-distress cause of action. So for the reasons we have already described in concluding that the complaint did not sufficiently allege "outrageousness" in its intentional-infliction-of-emotional-distress claim, we likewise conclude that it failed to sufficiently allege that Sorensen's emails were "highly offensive to a reasonable person." …

The court had no occasion to reach Sorensen's First Amendment argument, since Hammer's claims lost in any event under state law.