Utah Court Strikes Down Injunction Banning Speech "Annoy[ing] or Caus[ing] Distress" to Neighbor Running a Mental Health Residential Treatment Center,

but upholds limits on speech to plaintiff (or her visitors).

A short excerpt from the long opinion in Ragsdale v. Fisher, decided yesterday by Utah Court of Appeals Judge Gregory K. Orme, joined by Judges Ryan M. Harris and John D. Luthy:

For over ten years, George Fishler has shown his vehement opposition to Kristi Ragsdale operating her residential treatment center in his neighborhood by displaying provocative yard signs and by mouthing or shouting profanities, coupled with rude hand gestures, at anybody entering, leaving, or on the business's property…. Ragsdale is the founder and owner of the Eva Carlston Academy (ECA)—a residential treatment center for adolescent girls experiencing mental health issues, including anxiety and depression. In 2013, ECA opened a location at the end of a cul-de-sac in a Salt Lake-area neighborhood. Fishler and his wife are long-time residents of the cul-de-sac. Their home is located directly north of ECA.

Fishler and other neighbors vehemently opposed the opening of the ECA location in their neighborhood. Several neighbors voiced their opposition at community council meetings and displayed yard signs concerning "commercial businesses 'invading' the neighborhood." Fishler drafted a flier that he distributed to neighbors that stated, without specifically identifying Ragsdale or ECA, that the "commercial enterprise will degrade th[e] neighborhood" and urged neighbors to contact the local authorities.

Despite Fishler's and the neighbors' efforts, ECA was able to obtain the necessary permits, and it began operating in the cul-de-sac. Believing that the resulting noise and traffic "ruined the neighborhood," Fishler continued to "protest" ECA. He did so by displaying two yard signs—one in the front and one in the back of his property—stating,

TROUBLED TEEN MONEY MACHINE BECOME DISABLED FOR ONLY $10,000/MONTH

and another sign at the front of his property stating, "DELIVER US FROM EVA." These signs have remained on Fishler's property for many years. Additionally, whenever Fishler saw Ragsdale, he would hold up his middle finger and sometimes mouth or shout profanities at her. Fishler exhibited the same behavior toward others on ECA property and vehicles leaving or arriving at ECA. Fishler would also raise his middle finger toward the ECA building whenever he drove past it. Fishler did not alter this conduct even after ECA responded by installing security cameras. [Further details omitted. -EV] …

[T]he district court issued a stalking injunction against Fishler containing the following provisions:

1. Personal Conduct Order. Do not stalk [Ragsdale]. This means you must not follow, threaten, annoy, harass, or cause distress to [Ragsdale]. For a legal definition of stalking, see Utah Code 76-5-106.5.
2. No Contact Order. Do not contact, phone, text, mail, e-mail or communicate either directly or indirectly in any way with [Ragsdale]. Do not contact, communicate with, or gesture to others as they enter or exit [ECA] or while they are located on the ECA premises….

On appeal, the court upheld much of the order, but reversed part of it on First Amendment grounds:

In assessing whether a civil stalking injunction violates the respondent's free speech rights, district courts must, "at a minimum, determine whether each provision of a proposed injunction is content-based or content-neutral, and evaluate each provision under the corresponding level of scrutiny." …

[The No Contact Order] is content-neutral as it prohibits Fishler from contacting Ragsdale and others on, entering, or leaving ECA property in any way—regardless of the substance of the message. The provision thus does not distinguish a friendly wave "hello" from the rude hand gestures Fishler frequently employed….

[But a]lthough certain actions enjoined by [the Personal Conduct Order] are not entitled to First Amendment protection, other actions constitute expressive conduct, the prohibition of which, in this context, does not withstand strict scrutiny….

[T]he prohibition against following Ragsdale does not warrant any further First Amendment scrutiny. Similarly, true threats are a category of speech that has historically fallen outside the bounds of First Amendment protection…. Thus, to the extent the Personal Conduct Order's prohibition of threatening or harassing Ragsdale falls within the parameters of true threats, it too withstands Fishler's First Amendment challenge.

[But as to] the prohibition against annoying or causing distress to Ragsdale[,] "[l]isteners' reaction to speech is not a content-neutral basis for regulation." And here, the prohibition on annoying and causing distress focuses solely on the impact any speech or expressive conduct by Fishler would have on Ragsdale—Ragsdale's reaction is the only means by which it may be determined whether what Fishler did annoyed or caused distress. Accordingly, this prohibition is content-based.

Furthermore, the prohibition against annoying or causing emotional distress to Ragsdale does not withstand strict scrutiny because, in the context of this case, it is not the least restrictive means of furthering "the state's compelling interest in protecting its citizens from threatening or harmful behavior." In light of the No Contact Order, Fishler is already enjoined from contacting Ragsdale in any manner either directly or indirectly. The additional prohibition against annoying or causing distress could potentially enjoin Fishler from talking about Ragsdale (or ECA more generally) to others.

For example, any appearances Fishler might make before the local governing authorities to complain about ECA's presence in his neighborhood could likely cause Ragsdale, as the owner of ECA, emotional distress or would, at the very least, annoy her. Given the facts of this case, the No Contact Order is sufficient to address the complained-of course of conduct, and these additional prohibitions in the Personal Conduct Order go beyond what is necessary. See Towner v. Ridgway (Utah 2008) (holding that the civil stalking injunction did not violate the First Amendment because it enjoined the respondent from communicating directly to the petitioner but did not enjoin him from speaking about the petitioner)….

The court also upheld the trial court's refusal to order Fishler to "take down the signs currently posted on his property and refrain from posting any additional signage on his property that he knows or reasonably should know threatens, annoys, harasses, communicates to, or otherwise causes [Ragsdale] distress":

As concerns the prohibition against annoying or causing Ragsdale distress, for the same reasons articulated … above, this constitutes a content-based restriction on Fishler's speech.

Moreover, as concerns the prohibition against communicating to Ragsdale, the district court made no finding regarding whether the signs were communications directed at Ragsdale and the other identified persons. {Additionally, the three signs that remain on Fishler's property—two suggesting that one can become "disabled" for $10,000 per month and one stating, "DELIVER US FROM EVA"—cannot be said to constitute true threats.} …

For more on such overbroad injunctions restricting speech, see this article.