The Volokh Conspiracy

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Free Speech

Social Media Political Insults of Public Employee in Election Campaign Aren't Protected by the First Amendment

So a Minnesota Court of Appeals panel concluded this Summer, over a sharp dissent.


From Fideldy v. Schumacher (Minn. Ct. App.), decided July 25, in an opinion by Judge Peter Reyes, joined by Louise Dovre Bjorkman; the Minnesota Supreme Court denied review Oct. 25:

Respondent Rebecca Lynn Fideldy has been employed as a legal secretary with the Itasca County Attorney's office for 16 years. Prior to this, she was employed with the John Dimich Law Office for ten years as a legal secretary. Appellant Rose Marie Schumacher and John Dimich have been friends for 40 years. While employed at the John Dimich Law Office, Fideldy would occasionally see Schumacher there.

In the beginning of 2022, two employees, not involved in this appeal, from the Itasca County Attorney's office were discharged from their positions with that office but remained employees of Itasca County. During this time, John Dimich was running for Itasca County Attorney against incumbent, Matti Adam, Fideldy's supervisor.

On July 10 and July 12, 2022, Schumacher posted comments on social media titled "Itasca Involved. Informed. Inspired" about Fideldy.

On July 10, 2022, Schumacher posted:

Matti is desperate and her intimidation tactics are ramping up … it[']s coming out Matti. Whether you want it to or not … Becky Fideldy isn't the only leaker in your tight circle.

On July 12, 2022, Schumacher posted:

Outside agencies are watching because no one currently serving Itasca County has the balls or just love the gravy train they are on and throwing each other under the bus. Right, Becky Fideldy? Having an alleged sex offender you asked special favors for in your parade marches is for sure an f u to Itasca County and her victims especially the rape victims she continues to victimize.

Schumacher also posted a photograph of Fideldy that day and stated: "The squeaky leaker. This is not her first time leaking private info," insinuating that Fideldy had leaked information while employed at the John Dimich Law Office. She further stated in that comment: "You are pathetic [Fideldy], but I have known that for years. Karma baby." Following the comments, Fideldy petitioned for an HRO against Schumacher. The district court held an evidentiary hearing on August 4, 2022, and issued an order granting Fideldy an HRO against Schumacher….

A district court may grant an HRO if it finds "that there are reasonable grounds to believe that the respondent has engaged in harassment." Harassment includes "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." …

In a July 10, 2022 post, Schumacher called Fideldy a "leaker." Two days later, Schumacher accused Fideldy of arranging for an alleged sex offender to march in a parade. Schumacher also posted a picture of Fideldy and, once again, described her as a "squeaky leaker" and accused her of having a history of "leaking private info." We note that, while Schumacher does not directly challenge the last element of repeated incidents that caused a substantial adverse effect, the district court found Fideldy's testimony credible. Fideldy testified to "undergo[ing] financial, emotional distress, and anguish over this." Fideldy explained that she assists victims on crimes that are prosecuted by the county attorney's office and is "afraid that if people see [those comments] they're going to associate that with something bad." Finally, her last name is well known in Itasca County because she owns a small business that serves that community….

[I]n Roer v. Dunham (Minn. App. 2004),4 we explained that speech falling within the definition of harassment under section 609.748, subdivision 1(a)(1), is "constitutionally unprotected." …

{The dissent states that the supreme court in State v. Casillas (Minn. 2020) implicitly rejected Dunham's rationale by refusing "to categorically remove constitutional protection for speech that constitutes a substantial invasion of privacy." As the dissent also acknowledges, the Dunham case has clarified that "the harassment statute only regulates speech or conduct that constitutes 'fighting words;'" consequently, it held that the statute was "narrowly tailored" and therefore constitutional. We do not read Dunham to espouse that all speech that substantially invades the privacy of another are constitutionally unprotected.}

Judge Kevin Ross dissented:

The First Amendment … prohibit[s] the government from restraining all types of speech, not just so-called political speech. But for context, I believe that Schumacher's comments can rightly be called political speech. Schumacher characterizes her comments as a critical "post … about [Rebecca Fideldy] and others in a political matter." She posted her comments during the lead-up to an election for Itasca County Attorney on an online forum that purports to feature local political issues. The posts included in the record primarily attack incumbent county attorney Matti Adam, accusing her and those associated with or employed by her of various forms of "corruption," including the improper disclosure of private information. It is in this political context that Schumacher's comments against Adam involve Fideldy, who is an employee in Adam's office and whom Schumacher accuses of participating in the county attorney's alleged corruption…. Given the particular importance of the free exchange of ideas in the political arena, I feel strongly that the district court and this court should be on especially high alert when asked to grant or affirm restraints on politically oriented communication.

Whether Fideldy is or is not a "public official" does not change the political context of Schumacher's public criticism about Fideldy in Fideldy's role working in the office of one of the political candidates in an upcoming election….

[But a]lthough I believe that Schumacher's comments can readily be called political speech, that has little to do with why I am sure they are protected speech…. All speech—political or not—is protected unless it falls into one of several recognized categories. Schumacher's comments are protected speech because they plainly fall into none of those categories.

A few defined categories of speech miss First Amendment protection. These include "[t]rue threats of violence," obscenity, fraud, incitement, and fighting words. The district court here checked two fact-finding boxes on a form to justify the HRO, signifying that it construed Schumacher's challenged communication as evidencing that Schumacher "[c]alled [Fideldy] abusive names in a public online forum" and that she "[u]sed social media to harass [Fideldy] on multiple occasions." I believe that neither the supposedly "abusive" name-calling nor the other language in the posts escapes First Amendment protection.

I have no doubt that Schumacher's name-calling is protected speech. The only language in the posts that arguably constitutes name-calling are Schumacher's statements, "You are pathetic Becky, but I have known that for years," and, "The squeaky leaker. This is not her first time leaking private info." Schumacher does not ask us to consider whether the district court's factual findings constitute clear error, but if she did, I doubt we could rightly affirm the district court's treatment of these two snipes—"pathetic" and "squeaky leaker"—as "abusive names." They are hardly name-calling at all.

And the easier question, which is the one that we face but that the majority does not address, is whether Schumacher's calling Fideldy "pathetic" and "squeaky leaker" is protected speech. Obviously, it is. "The price of free speech is putting up with all sorts of name-calling and hurtful rhetoric." Calling a police officer an "asshole" is protected speech. Calling city officials "boob" and "idiot" is protected speech. Calling deputies "motherf—-rs" is protected speech. Calling a supervisor "son of a bitch" and "bastard" is protected speech. Schumacher's comparatively mild name-calling is, in my opinion, undoubtedly protected speech. I would therefore hold that the district court erroneously relied on the supposedly abusive name-calling as one of its two bases to restrain Schumacher for her alleged harassment…. Nothing in [Schumacher's] posts even arguably constitutes true threats, obscenity, fraud, incitement, or fighting words.

All that remains is the defamatory exception, but it too does not apply. It is true that during the brief evidentiary hearing Fideldy asserted that Schumacher's accusation about Fideldy improperly disclosing data was untrue. This assertion perhaps suggests that the accusation might qualify as defamatory, since one of the elements of a defamation claim is "a false and defamatory statement." But Schumacher testified to the contrary, insisting that she knew her posting was true because the improperly disclosed data had been about her. In any event, the district court did not even mention defamation and made no finding that the accusation was in fact false, let alone defamatory. This court on appeal is of course in no position to make any factual determination regarding whether the statement was defamatory.

The majority lists the categories of unprotected speech but never analyzes how Schumacher's speech could possibly fit any of them, except to point out that this court once opined that the statutory definition of harassment is its own special category of unprotected speech. The majority then reasons that, because Schumacher has not challenged the district court's finding that her posts meet the statutory definition of harassment, her posts must be constitutionally unprotected. The majority so reasons by relying on this court's opinion in Dunham v. Roer (Minn. App. 2006). Dunham is simply not good law.

In that case, we recognized first that "the focus of the [harassment] statute is to prohibit repeated and unwanted acts, words, or gestures that have or are intended to have a substantial adverse effect on the safety, security, or privacy of another." Then we focused on the privacy component rather than the safety or security components of the statute, and we rejected a facial First Amendment challenge based on what is now clearly wrong thinking. We stated, "Because the harassment statute only regulates speech or conduct that constitutes 'fighting words,' 'true threats,' or substantial invasions of one's privacy, we conclude that the statute is narrowly tailored and is, therefore, constitutional." So the majority is correct that in Dunham we indeed treated the category of speech that constitutes a substantial invasion of privacy as a new category of unprotected speech.

But recently, implicitly rejecting Dunham's rationale, the supreme court expressly refused "to categorically remove constitutional protection for speech that constitutes a substantial invasion of privacy." State v. Casillas (Minn. 2020). And neither the Minnesota nor United States Supreme Court has ever endorsed this new category. Because speech that constitutes a substantial invasion of privacy is certainly not categorically unprotected speech under the First Amendment, and because the posts in this case, at most, implicate the privacy component of the harassment statute rather than the safety or security components, the fact that the harassment finding is unchallenged on appeal does not undercut Schumacher's obviously correct contention that issuing the HRO infringed on her right to free speech….

I think the dissent is correct, for reasons I discuss in much more detail here.