The Volokh Conspiracy
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Court Upholds Injunction Against Signs Reporting Neighbor's Son Committed Sex Crime Against Homeowner's Daughter
From Cambronne v. Chapp, decided yesterday by the Minnesota Court of Appeals (Judge Carol Hooten, joined by Judge Jeffrey Bryan); note that it's not clear what the exact nature of the criminal sexual conduct charge was, which is why I'm being vague about it:
Appellant Jake Chapp lives across the street from the residence of respondent Jamie Cambronne. On June 1, 2022, Cambronne's son pleaded guilty to a criminal-sexual-conduct charge involving Chapp's daughter. According to Cambronne, her son has not lived at the family's residence since February 2022.
On July 5, 2022, Chapp put up a sign, visible from the road and aimed at Cambronne's property, which stated, "How would you feel if your child was RAPED by the neighbor and his parents blame you for his conviction?" … On July 13, Chapp put up a second sign next to the first sign, which stated, "Honk if you agree: Rape is wrong." These signs both faced Cambronne's residence and were illuminated at night.
Cambronne sought a Harassment Restraining Order, which the court granted, for two years:
The district court determined that Chapp's signs "were harassing in nature" and that "it's clear from the wording and the placement of the signs that the intent was at least in part to harass the Cambronnes …." …
The district court found "reasonable grounds to believe that [Chapp] engaged in harassment" based on the following: Chapp "displayed signs visible from [the] roadway and [Cambronne's] home encouraging passersby to honk their vehicle horns. These signs were lighted and visible at night." {The district court acknowledged that Chapp had a "First Amendment right to free speech" but concluded that "the tenor of this speech here was specifically designed … with an intent to harass."} …
The district court issued an HRO prohibiting Chapp from harassing Cambronne, having direct or indirect contact with Cambronne and her minor children, and being on Cambronne's property. The HRO does not provide for specific restrictions on Chapp's use of signage or clearly identify the aspects of Chapp's signs that constituted harassment; it states only that "[t]here are reasonable grounds to believe [Chapp] has engaged in harassment" because he "displayed signs visible from roadway and [Cambronne's] home encouraging passersby to honk their vehicle horns" that were "lighted and visible at night."
The court held that Chapp's signs were indeed "harassment" under Minnesota law:
A district court may grant an HRO if it "finds at the hearing that there are reasonable grounds to believe that [a person] has engaged in harassment." "Harassment" is defined, in relevant part, 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." Thus, the HRO statute "requires both objectively unreasonable conduct or intent on the part of the harasser and an objectively reasonable belief on the part of the person subject to harassing conduct." Objectively unreasonable conduct is that which "goes beyond an acceptable expression of outrage and civilized conduct." …
Chapp contends that "the placing of a sign constitutes an acceptable expression of outrage and civilized conduct." We disagree…. At the HRO hearing, Chapp admitted that the signs were "in view of [Cambronne's] home," that he selected that location, that he illuminated the signs to be seen at night, and that one of the signs asked drivers to honk their horns…. The district court also discredited Chapp's testimony that "claimed [the signs] to be educational or informative." We defer to such credibility determinations by the district court. Thus, the district court did not clearly err in finding Chapp's conduct objectively unreasonable.
And the majority held that the signs were unprotected by the First Amendment:
The district court determined that while Chapp has "a First Amendment right to free speech … the tenor of [Chapp's] speech here was specifically designed … with an intent to harass." …
Chapp contends that his signs "do not fall into any of the categories of unprotected speech." But as detailed above, the record supports the district court's determination that Chapp intended his signs to have a substantial adverse effect on Cambronne's safety, security, or privacy. Because the signs constitute harassment under the HRO statute, they are unprotected speech…. "The state may … regulate conduct that is invasive of the privacy of another." …
Chapp claims that the HRO is an unconstitutional prior restraint because it prohibits him from "communicat[ing] his viewpoints regarding rape through signage on his property," and publishing "via a sign … any content referring to the events suffered by [his] daughter regardless of whether [the sign] was harassing." We disagree.
The HRO does not necessarily prohibit Chapp from expressing his views on rape or posting signs on his property; it only prohibits Chapp from harassing Cambronne…. [T]he HRO does not prevent Chapp from expressing his views in other ways not designed to have a substantial adverse effect upon the privacy of Cambronne and her children in their home. The HRO does not restrict the content of Chapp's speech, but only restricts Chapp from engaging in harassment of Cambronne. Under these unique circumstances, we conclude that the HRO is not an unconstitutional prior restraint on speech….
Judge Matthew Johnson concurred in the judgment:
[A]ppellant's First Amendment argument has some support in caselaw. The use of signs on one's own property is a well-recognized form of protected speech, which may convey "a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means." In addition, speech on matters of public concern (which includes the prosecution of a criminal offense) "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Nonetheless, the state has an interest "in protecting the well-being, tranquility, and privacy of the home," which means that the First Amendment does not give a speaker the "right to force speech into the home of an unwilling listener."
Assuming that the HRO is not an unconstitutional prior restraint, and that the HRO is content-neutral rather than content-based, the ultimate question is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Appellant has not argued that the district court should have crafted a narrower HRO or that this court should narrow it. Appellant also has not asked this court to remand the case to the district court. Given an all-or-nothing choice, this court must affirm the issuance of the HRO, which forbids some speech that is beyond First Amendment protection.
But, Judge Johnson reasoned, HROs like this one might indeed violate the First Amendment in at least some circumstances:
I would not assume that speech that satisfies the statutory requirements for an HRO necessarily is unprotected by the First Amendment. We have held that the HRO statute is not overbroad and, thus, not facially unconstitutional. But the overbreadth doctrine voids a statute "only if the degree of overbreadth is substantial." Dunham v. Roer (Minn. App. 2006). Accordingly, Dunham does not foreclose the possibility that, in a particular case, an HRO issued pursuant to the statute might violate First Amendment rights.
I also note that Dunham may be inconsistent with a subsequent supreme court opinion. In Dunham, we stated that the HRO statute may regulate not only fighting words and true threats but also "conduct that is invasive of the privacy of another." We held that the HRO statute does not violate the First Amendment to the extent that it regulates "speech or conduct that is intended to have a substantial adverse effect, i.e., is in violation of one's right to privacy." More recently, in State v. Casillas (Minn. 2020), the supreme court expressly rejected a request for the recognition of "a new category of unprotected speech: substantial invasions of privacy." The Casillas court reasoned that the United States Supreme Court "has emphatically rejected freewheeling attempts to declare new categories of speech outside the scope of the First Amendment" and does not do so unless there is "persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription."
Before concluding, I note that this court's task is complicated by the fact that the HRO lacks specificity. The provision that might prohibit or restrict appellant's future display of signs states simply that appellant "shall not harass" respondent and her minor children. It is clear that appellant may not do exactly what he did before the HRO proceeding was commenced; the district court found that appellant engaged in harassment by doing so. Otherwise, it is unclear whether appellant may display any signs on his property, even if, for example, they are not visible from respondent's home or do not encourage honking.
It appears that the district court's HRO does not comply with the statutory requirement that an HRO give notice of "the specific conduct that will constitute a violation of the order." But appellant has not argued that the HRO is invalid on that ground, and, again, he does not seek a narrower order that would allow signs that do not implicate the government's interest in protecting an unwilling listener….
Congratulations to David W. Buchin, who represented Cambronne.
