The Volokh Conspiracy
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Oklahoma S. Ct. Vacates Restraining Order Against Self-Described Pastor Who Was Sharply Condemning Pro-Gay-Equality Activists
The court concludes the pastor's posts were about the activists' organization (Oklahomans for Equality) and not about them personally; it thus avoided having to decide whether the First Amendment would have protected the speech if it was indeed about the activists personally.
From Hayes v. Penkoski, decided yesterday by the Oklahoma Supreme Court, in an opinion by Justice Darby:
The question before this Court is whether Defendant, Richard Penkoski, harassed or stalked Petitioners, Sheena Hayes and Morgan Lawrence-Hayes, as required for issuance of a protective order. Because Penkoski did not direct his actions toward any individual person, which the statute requires before the district court may enter an order of protection, we answer in the negative….
Penkoski is a public figure who holds himself out as a pastor, activist, and street preacher. Petitioners are also public figures; Morgan Lawrence-Hayes is President of Oklahomans for Equality and Sheena Hayes is Vice President of Oklahomans for Equality. Hayes is also the outreach committee chair for Petitioners' church, Disciples Christian.
On September 9, 2022, Penkoski created a post on Facebook. The post said: "This is NOT a church!! This is a satanic recruitment center to groom and indoctrinate children while they pervert the Word of God[.]" The post also contained two photographs, the first was a collaboration of photos of individuals with the overlying text "DISCIPLES CHRISTIAN CHURCH" in bold and below that in italics the text "Happy Pride Month[.]" The photograph cuts off halfway through the second line of text. The second photograph depicts a group of adults and children holding what appears to be photos or pieces of art. No text indicated the identity of the individuals in either photo. Petitioners testified that they and their minor child were pictured in both of the photos. The photographs were available on the church's public page.
The next day, on September 10, 2022, Penkoski attended the Bartlesville Pride Event in Bartlesville, Oklahoma. Penkoski allegedly stood on the street corner and yelled into a bullhorn for several hours, shouting slurs across the street toward the children's bouncy house. Penkoski testified that he stayed where the police asked the protesters to assemble during the Pride Event. Penkoski had no direct interaction with Petitioners and Penkoski did not mention Petitioners' names or Petitioners' church by name.
On November 7, 2022, both Petitioners and Penkoski chose to attend and speak at the Bartlesville City Council meeting. At the meeting, Penkoski did not speak directly to the Petitioners, mention them by name, or have any direct interaction with them. No videos or photos of the city council meeting were submitted into evidence.
On November 11, 2022, Penkoski again posted on Facebook. This post consisted of the text "Liar, liar, pants on fire!!" and a video. The thumbnail of the video in the post showed a woman standing at a lectern with a microphone. The woman had dark colored, long hair which covered most of her face making her virtually unrecognizable in the photo. No text in the post identified the woman in the video. Petitioners testified that the video showed Lawrence-Hayes speaking at the City Council meeting but did not submit a copy of the posted video into evidence.
On November 12, 2022, Penkoski again posted on Facebook. This post had the text "Oklahomans for Eqaulity [sic] in Bartlesville OK caught lying about sexualizing children… See more" and a video. The thumbnail of the video in the post was almost identical to the previous one, showing a woman standing at a lectern with a microphone, with her long, dark hair covering most of her face making her virtually unrecognizable from the photo. No text in the post identified the woman in the video other than that they were associated with Oklahomans for Equality. Petitioners testified that it was also an image of Lawrence-Hayes. Petitioners did not submit a copy of any video for admission into evidence.
On November 14, 2022, Penkoski again posted on Facebook. This post stated:
I now pronounce you an abomination!!
God is not in this, matter of fact God hates the perversion of marriage. God created married [sic] for 1 man and 1 woman ONLY!!
This synagogue for satan operates in Bartlesville OK.
You should see what they think is approbation [sic] for children.
Matthew 18:6, "but whoever causes one of these little ones who believe in Me to stumble, it would be better for him to have a heavy millstone hung around his neck, and to be drowned in the depth of the sea."
Since there [sic] triggered over that verse, I wonder how they feel about Romans 1:32, "and although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them.
Below the text, Petitioners' exhibit of the Facebook post shows one black and white photograph which shows two people from the back. One is wearing a dark suit, and the other is wearing a white dress and veil. Also visible in the photo are flowers and lit candles. There are no other adults or children shown. No text in the post identified the two individuals in the photo, or the name of the referenced entity in the post. Petitioners testified that this Facebook post contained two photographs obtained from their private Facebook page and included Petitioners and their minor child in both photos, but no child was visible in the one photo in the submitted exhibit. Furthermore, Penkoski and Lawrence-Hayes both testified that all of the photographs Penkoski posted were available on the church's public Facebook page.
On November 15, 2022, Petitioners contacted Bartlesville police. On November 22, 2022, Petitioners filed their Petition for Protective Order. The petition described the time line of incidents as occurring between September through November 2022:
The defendant first began his harassing behavior in the week prior to Bartlesville Pride. Before the event he shared pictures of parents & children of Disciples Christian Church & called us (the photo included our family) groomers & pedophiles. He then came to Bartlesville Pride as a protestor & stood next to the children's area shouting vulgar & obscene things. In November, he took a photo from my personal facebook & shared it to his page stating bible verses that imply I should be killed for being gay. He showed up at the November City Council meeting speaking out with more bible verses used to justify harming or killing the LGBT community. Following the meeting, he again shared a video of my statements calling me a liar. We have never been in contact with Mr. Penkoski, but he has repeatedly targeted our family with violent threats via social media, and he is now coming to city meetings in a town he does not live in.
Attached to the petition was a police report which stated Penkoski's offense was committing an obscene/threatening/harassing phone call (intimidation) pursuant to title 21, section 1172. The police narrative stated:
On 11/15/22, I was contacted by the President of Oklahomans for Equality, Morgan Lawrence, in regard to harassment. Mrs. Lawrence is married to the Vice President, Sheena Hayes. Mrs. Lawrence also has a son [omitted].
On 09/10/22, Bartlesville held an outdoor pride event at Unity Square (300 SE Adams). Due to overwhelming protests and threats, Bartlesville Police Department had to take extra security measures at this event. During the protest, Mr. Rich Penkoski is seen on multiple videos using a blowhorn and saying vulgar statements and obscenities. He is also seen holding a sign that says G-Got A-Aids Y-Yet. Mr. Penkoski would say "homosexuals rape dogs",[sic] "raping anus" and they are all "pedophiles." These sayings were confirmed by Officer Lemmons who was working the event as extra security. Mr. Penkoski can be identified as the one making these comments with the blowhorn near the children's play area of the Pride Event.
Mrs. Lawrence informed me, that a Facebook post was made after the pride event. The post was removed by Facebook, but she was able to provide me with screenshots. Those have been uploaded to this case.
The post was made by Mr. Penkoski and stated the following: [quotes Nov. 14, 2022 Facebook post quoted above -EV]. Mr. Penkoski then attached two photos of Mrs. Lawrence, Mrs. Hayes, and [minor child] at their wedding day ceremony. Mr. Penkoski is believed to be saying a millstone should be hung around "their" neck and to be drowned in the depth of the sea.
Five days ago, on 11/11/22, Mr. Penkoski made another post in regard to Mrs. Lawrence. The post stated "Liar, liar, pants on fire!!" Mr. Penkoski then attaches a video from the city council meeting in which Mrs. Lawrence is speaking in regard to the Pride Event and a petition involving the banning of adult entertainment in public spaces. Mr. Penkoski shows 38 seconds of Mrs. Lawrence speaking at the city council meeting and then edits the video to show portions of the drag queen performance on 9/10/22 at the Pride event. At the 1:12 mark, Mr. Penkoski cuts back to Mrs. Lawrence giving her speech. He allows this to play for about 18 seconds before again editing the video back to portions of the drag queen performance. While these edits are going on, Mr. Penkoski uses Mrs. Lawrence's words and altered voice over the playing of the performances. The total length of the video is 2:06….
The district court issued an emergency protective order the same day.
On December 15, 2022, Petitioners had Penkoski served with the emergency protective order while Penkoski was live-streaming at a protest in Tulsa, Oklahoma. Allegedly, the police officer stated both of Petitioners' names on the live-stream while serving Penkoski. Afterward, Penkoski posted the live-stream on social media for at least five days. Petitioners, however, did not provide a copy of the live-stream video to the court or offer the video into evidence. {On appeal, Petitioners have alleged that Penkoski made an active choice to publish the live-stream after its completion in order to publish Petitioner's names. This argument was not raised at the district court and this Court cannot take judicial notice regarding methods and requirements of posting Facebook live videos.}
On February 15, 2023, the Washington County District Court held the protective order hearing and issued a permanent order of protection for five years. The order prohibited Penkoski from posting any pictures, images, videos, or any likenesses of any kind of the Petitioners or their minor child on any social media; making reference to, mentioning, printing, or otherwise publishing their names on social media; and required that Penkoski must stay 500 feet away from Petitioners and minor child, in addition to standard protective order restrictions….
The Oklahoma Supreme Court overturned the order; the relevant portion of the statute, the court held, allows an injunction only following a finding of "stalking," which requires "contact or conduct toward an "individual," and
Penkoski's actions were not directed toward an individual person, but rather were public Facebook posts that named two organizations, not individuals. Penkoski spoke neither of Petitioners' names at the parade or the city council meeting. Penkoski did not send electronic communications to Petitioners, or contact them directly by any means, including directing a message, comment, or other content toward them. Penkoski did not photograph, videotape, or otherwise record Petitioners' activities. Penkoski created Facebook posts that included photos or videos he obtained from other sources which, while they depicted one or both of Petitioners, did not name either Petitioner or direct his message toward either Petitioner….
We need not address all of Penkoski's or Petitioners' arguments, including Penkoski's First Amendment arguments, because regardless of protected speech status, the district court abused its discretion in issuing the order of protection….
Justice Gurich dissented in relevant part:
Although some of Penkoski's commentary appeared to be directed toward Oklahomans for Equality, in truth, his oppressive and intimidating conduct was directed toward Morgan Lawrence-Hayes and Sheena Hayes (Appellees) as individuals. {Penkoski's posts included photos of the women and referenced "Oklahomans for Eqaulity [sic]." Both Appellees were active leaders in Oklahomans for Equality-Bartlesville, which is a local organization promoting rights for the LBGTQ-plus community. Lawrence-Hayes served as the president of the organization, and Hayes was the vice-president. In addition, Hayes acted as the outreach chairperson for Disciples Christian Church, which is a Bartlesville congregation promoting equality and diversity. As members of the LBGTQ-plus community, and because of their leadership status with the aforementioned entities, Appellees became the direct targets of Penkoski's persecution and terrorizing conduct.} …
First, his September 9, 2022, post clearly displayed an image which included both Appellees and their child. Significantly, the post contained a caption which effectively accused those people in the Disciples Christian Church group photo (which included Appellees), of creating a "satanic recruitment center to groom and indoctrinate children…" Use of this photograph, along with the accompanying hate speech, directly affected the Appellees. Although Appellees were not named, the post's impact was not limited to the church or any other organization. On November 11 and 12, 2022, Penkoski made two publications which included an image of Lawrence-Hayes, taken from the Bartlesville city council meeting. Therein, Penkoski accused Lawrence-Hayes of lying about "sexualizing children."
A Facebook publication made by Penkoski on November 14, 2022, showed both Appellees exchanging vows during their wedding ceremony. It also contained two bible verses which referenced death to individuals acting contrary to certain biblical teachings. {Penkoski referred to Matthew 18:6, which he quoted as, "if anyone causes one of these little ones who believe in me to stumble, it would be better for him to have a heavy millstone hung around his neck, and to be drowned in the depth of the sea." He also referred to Romans 1:32, which he recited as follows, "and although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them."} The photograph was taken from Lawrence's personal Facebook page and was utilized by Penkoski without permission. Both Appellees testified they considered the post to be threatening and that they perceived the biblical verses as a call for their murder. In addition, Penkoski posted videos of Lawrence-Hayes speaking at the Bartlesville City Council meeting to a social media platform.
Further, Penkoski made physical appearances in locations he knew the Appellees would be present. He attended an LBGTQ-plus event in Bartlesville and positioned himself (with a group of other men) directly across from Appellees. During this episode, Penkoski used a bullhorn and yelled obscenities toward Appellees. Subsequently, Penkoski appeared at a Bartlesville City Council meeting to confront the Appellees about his hostile conduct at the Bartlesville Pride festival.
Penkoski was served with the emergency protective order on December 15, 2022. At the time, he was livestreaming a video to social media. When the paperwork was handed to Penkoski, the Tulsa Police Officer identified the Appellees as the petitioners. Penkoski subsequently disseminated the video with Appellees' names via his social media account(s), purposefully making Appellees' names available to his followers. This disclosure was intentionally done to harass, intimidate and torment the Appellees even more. The video post compounded Appellees' fears and brought about a flood of abhorrent messages from Penkoski's social media followers.
Penkoski's social media posts and intimidation tactics were not isolated incidents; rather they were an ongoing "course of conduct" designed to intimidate/harass Appellees and potentially incite violence toward the couple. He even testified that the Appellees, as parties to a same-sex relationship, were "worthy of death," according to his interpretation of the Bible. Considering the testimony and exhibits, it is clear Penkoski's actions were directed toward Appellees as individuals. In addition, the record supports the trial court's legal determination that Penkoski's repeated bullying (both in person and via social media) and incendiary rhetoric toward Appellees satisfied the definition of stalking. Because the trial judge did not abuse her discretion, I would affirm the finding that Penkoski engaged in stalking of Appellees.
The dissent noted that "By affirming the trial court's finding of stalking, the Court would be required to engage in an analysis of the issues on appeal relating to the First Amendment," but didn't explain how it would have analyzed those First Amendment issues.
Justices Kauger, Edmondson, and Combs also appeared to have dissented in part, but without opinion.
Joe M. Fears and Richard D. White (Barber & Bartz) represent Penkoski.
