The Volokh Conspiracy

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Free Speech

Elected Official vs. [Chocolate] Dick At Your Door

Ventura County Supervisor Linda Parks sues a company that's in the business of delivering "chocolate Dick[s]," "offensive 5 inch chocolate phallus[es] with no redeeming social qualities, whatsoever."


I missed this when the case was first filed in March; from the Complaint in a lawsuit by Ventura County Supervisor Linda Parks against Rain Parade, LLC, doing business as Dick At Your Door:

[5.] On or about June 5, 2021, Defendants and each of them caused to be delivered to Plaintiff's home in Ventura County a "chocolate Dick," an offensive 5 inch chocolate phallus with no redeeming social qualities, whatsoever.

[6.] Defendants, and each of them, have continued their offensive and outrageous conduct by, despite their public statements of disclosure of persons contracting for sending their sick "novelties," failing and refusing to disclose the person(s) ultimately responsible for the offensive and outrageous conduct alleged herein.

[9.] The actions of defendants were outrageous, intentional, and malicious, and done with reckless disregard of the fact that they would certainly cause plaintiff to suffer severe emotional and physical distress.

[10.] As a proximate result of the acts of defendant, plaintiff suffered headaches, severe emotional distress in the form of fear, nervousness, anxiety, worry, and indignity.

I noticed this because of a just-posted California Fair Political Practices Commission decision (released in February), which allowed Parks to use campaign contributions to sue to uncover the name of the person who ordered the phallus (though that wouldn't extend to the substantive lawsuit against Dick At Your Door):

A notice of intention to circulate a recall petition against you, in your office as a Ventura County … Board of Supervisor member, was filed on February 12, 2021, and approved on March 4, 2021, for circulation. This recall effort began after you and three other supervisors voted on January 12, 2021, for the County to initiate litigation against 10 local businesses for repeated violations of state and County closure orders enacted due to the COVID-19 pandemic. You filed a response to the notice of intention, stating that this was an unwarranted recall by "extremists" who defied state Health Orders to keep people from getting sick and dying from COVID-19 and who have engaged in rallies that slowed traffic on Highway 101, and ambushed grocery store shoppers and staff with mask-less protests. The recall effort failed to gather the required number of signatures and ended in September 2021.

On June 9, 2021, while signatures were being gathered for the recall petition, you received a package at your personal residence, from an anonymous person sent through a company. The package contained a life-size chocolate penis in a box that says, "Congratulations! YOU DESERVE IT" on the outside, and other vulgar messages on the inside of the box. The box also included the message, "Honorable Linda Parks, enjoy early retirement. Thank you, Casa Conejo residents" taped to the underside of the box. A separate card in the box stated, "Confused? See if the sender left you a message" and provided the website and name of the company sending the package and messages.

You learned that company that sent the package is a limited liability company in San Diego. The business has refused to disclose the sender to you. You believe that the anonymous sender chose a novelty item that crosses the line from free speech to threatening a female public official with implied sexual violence. You state that it is without question a dangerous time to be female and a public servant and you note recent harassment events of female public officials covered by the news media.

You ask whether the expenditure of campaign funds to pursue legal action against the business to obtain the sender's name is permissible under the Act and believe the legal action serves a political and governmental purpose for a number of reasons. The package and message referenced the campaign to recall you from your elective office and occurred during the recall attempt. You believe this was sent to you because you are a female elected official. You are concerned that the publicity around this event may chill others from running for public office.

You think it is important that the identity of the sender be known for purposes of transparency, for example if the sender is a major donor in local campaigns, as it may affect the person's influence in political campaigns. You are also currently receiving anonymous harassing text messages regarding a particular development project and think this action may have been intended to intimidate and dissuade you in performing your duties regarding decisions about the project.

Finally, you are concerned that anonymous senders could send this kind of pornographic novelty to other unwitting victims, and they too would be harmed. The use of campaign funds to attempt to have the court order the release of the name of the individual who contracted to send it may lessen the ability for future senders to remain anonymous and so disincentivize individuals who hide behind anonymity to take harmful actions, thus serving a governmental purpose as well….

[California law], as relevant to this matter, provides that where the litigation arises directly out of a candidate or elected officer's activities, duties, or status as a candidate or elected officer, such as in an action to enjoin defamation, the expenditures of campaign funds for attorney's fees and costs are directly related to a political, legislative, or governmental purpose and thus meet the standard….

The Commission previously advised that campaign funds could be expended for attorney's fees and costs in order obtain the identity of the person responsible for anonymously creating an "anyone but Terrazas for city council" Facebook page, as the posts sought to discredit the candidate's professional reputation and undermine his campaign for office. The Commission found a direct relation between the purpose of the expenditure and the candidate's "status as a candidate." …

Similarly, this litigation matter arises directly out of your activities, duties and status as an elected officer, and the recall effort of your elected position. The mailed anonymous lewd package and accompanying messages related to the recall effort and your status as a member of the County Board of Supervisors. You seek legal action to obtain the identity of the anonymous sender. You are not seeking monetary damages. This legal action is directly related to a political or governmental purpose as it arises out of your activities, duties and status as an elected officer and the recall effort of your elected position status….

I can see that getting such an item in the mail may be offensive and disquieting, and having it sent to her home adds an extra level of unpleasantness. Still, it seems to me hard to view the particular mailing as a threat, given the context described in the commission decision; an elected official ought to be able to deal with such matters. And I certainly don't see how the business's actions are tortious intentional infliction of emotional distress. But after the Complaint was served in April, I haven't seen any further actions on the docket, so we may end up not getting any decision here.