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Free Speech

Good Thing the United Cajun Navy Apparently Has a JAG Corps

An interesting threats case, from the Louisiana Court of Appeal


From Terrell v. Derouen, decided yesterday by the Louisiana Court of Appeal, in an opinion by Judge Wayne Ray Chutz, joined by Judge Guy Holdridge (with Judge John Michael Guidry concurring in the result):

Terrell alleged that he is the President and founder of the Louisiana non-profit organization, United Cajun Navy (UCN), which coordinates search-and-rescue efforts in response to natural disasters and other tragedies. He and UCN responded to the capsizing of the Seacor Power in the Gulf of Mexico on April 13, 2021, by activating the corps of volunteers and charitably raising money to fund and supply support for search-and-rescue efforts of crewmen.

On April 30, 2021, as UCN searched for seven missing Seacor Power crewmen, Terrell averred that he was ambushed by several individuals making false claims that UCN was not using donations for supplies and material and demanding that Terrell turn over UCN's bank statements. Terrell alleged that on May 1, 2021, in a Facebook live video, Derouen threatened to inflict bodily harm on Terrell and motivated third parties to threaten, harass, and intimidate him. {Terrell attached electronic communications from the third parties in which he was called "a piece of shit" and advised to "run and hide" and "burn in hell."} Also on May 1, 2021, Derouen texted a UCN volunteer stating, "But [Terrell]…if you watching this…you better run if you see me mother fucker."

According to Terrell, Derouen subsequently made several Facebook posts that Terrell felt were threatening. On May 3, 2021, Derouen stated, "I never back down…. anyone who knows me, knows that. Be careful what you wish for. I fear no man." The next day, Derouen posted:

Some of you think I'm stooping or aren't proud of some of my actions lately…. I'm sorry….But this is who I am. I will never let anyone mess with these families, my family, or my friends. For anyone who's ever "sucker punched" anyone I've ever loved, I have always tucked my chin, stared them in the eye, and "punched them in the mouth." I never claimed to be a Saint. And if by some chance my actions send me to hell when my days are done….just know that I'll likely be carrying a smile…because I get to whip their "behinds" again.

On May 7, 2021, Derouen stated on his Facebook page, "I was built for this. I will bring these men home….and I will take down every…single…person that had ill intentions for these families, so help me God." Although he did not include a copy of the electronic posting, ostensibly because it was later unpublished, Terrell attested that, on May 10, 2021 (the same day he filed the lawsuit), Derouen posted on Facebook, "Come get me pussy…screenshot this too. I am everything you are afraid of…you can hide behind a judge and an attorney…I don't answer to anyone."

Terrell sought an antistalking order against Derouen, and Derouen filed an anti-SLAPP motion, argue "that his social media posts expressed his 'political views, opinions, and lawful information to the public' about the Seacor Power search-and-rescue effort and individuals who were involved." The trial court granted the motion, and warded Derouen $2500 in attorney fees; but the court of appeals held that the posts could be seen as constitutionally unprotected "true threats" "of unlawful violence":

Based on Terrell's allegations, a trier of fact could find that Derouen committed acts constituting the crime of stalking under La. R.S. 14:40.2 or cyberstalking under La. R.S. 14:40.3. Derouen commenced his communications with Terrell by a text he sent to a UCN volunteer, "[Terrell]…if you watching this…you better run if you see me mother fucker." Although the text was not directly sent to Terrell, it is not fatal to his claim that Derouen sent the comments to a third party who associated with UCN rather than directly to Terrell because the cyberstalking statute does not require the electronic communication be transferred or transmitted directly to the victim. Derouen followed the text with a Facebook post advising Terrell that "[you] clearly haven't paid attention well enough to know what kind of man I am." After that, in a series of Facebook posts, Derouen offers statements that he "punche[s]" those he believes "sucker punched" anyone he ever loved, and that he "will take down every …single…person" that Derouen determines has "ill intentions" toward the families affected by the Seacor Power tragedy.

A trier of fact could find that these electronic communications by Derouen constitute statements by which Derouen meant to communicate a serious expression of an intent to commit the act of assault and/or battery on Terrell, which are unlawful acts. If a trier of fact were to find Derouen's comments constitute true threats, Terrell is entitled to protection from the fear of violence, the disruption that fear engenders, and the possibility that the threatened violence will occur. Such a conclusion would entitle Terrell to the protective orders he seeks, establishing that Derouen's words were intended to intimidate Terrell and fall outside the ambit of constitutionally-protected speech.

Therefore, the trial court erred in concluding that Derouen sustained his initial burden of establishing that the protective orders Terrell seeks under the Protection from Stalking Act arise from Derouen's exercise of his right of free speech in connection with a public issue. Accordingly, the trial court erred in granting the special motion to strike.

Congratulations to Joshua P. Melder and Gregory Thomas Akers, who won the appeal for the plaintiff.