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No Shirt, No Shrewd, No Parking

"[O]n numerous occasions over the next fifteen months, Appellant was seen walking or standing in front of Appellee's home wearing only brightly colored underwear."

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Johnson v. Faeder was decided yesterday by the Tennessee Court of Appeals (Judge Valerie Smith, joined by Chief Judge Michael Swiney and Judge Neal McBrayer). Defendant-Appellant Faeder is a lawyer who has a web site called One Shrewd Dude (presumably referring to himself), is a former college philosophy teacher and the author of the "bookella" Philosophy Without Reference: An Introduction to Contemporary Philosophy, and has "competed in six Magic: The Gathering Pro Tours" (see also here). Plaintiff-Appellee Johnson lives two houses away from Faeder. Here's the court's discussion of what happened:

[O]n July 14, 2021[,] … Appellee's husband (who is not a party to this litigation), saw Appellant in Appellee's backyard without permission and accompanied by his two young children. Appellant was shirtless at the time, and Mr. Johnson asked that Appellant put on a shirt. Appellant then left the Johnsons' yard with his children. There was no direct interaction between Appellant and Appellee during this encounter.

On July 29, 2021, Appellant delivered a letter to Appellee's mailbox. The delivery consisted of a men's shirt accompanied by a typed letter addressed to "Shirtman," seemingly in reference to Mr. Johnson. In the letter, Appellant proposed a solution for any future incidents: if Appellant's children wandered onto the Johnsons' property while Appellant was outside without a shirt, the Johnsons could bring him the enclosed shirt, which he would then wear and later return to their mailbox for repeated use. Appellant signed the letter "Your Eternally Neighborly Neighbor."

Relations between the parties further deteriorated following this incident. The record indicates that on numerous occasions over the next fifteen months, Appellant was seen walking or standing in front of Appellee's home wearing only brightly colored underwear. This behavior occurred repeatedly, including occasions when Appellee was hosting a children's birthday party and an Easter gathering at her home.

On January 30, 2022, Appellee was outside of her home when Appellant approached her to discuss the idea of their children playing together. The exchange between the parties turned contentious. Appellee was alarmed by Appellant's demeanor and recounted that Appellant aggressively approached her irritated about a lack of communication between the parties. Appellant conceded in his appellate brief that this interaction "did not go well."

On May 7, 2022, Appellee installed a security camera on her property. On this day, while Appellant was walking his dog, the dog urinated on Appellee's mailbox post at the edge of her yard. Appellee confronted Appellant about allowing his dog to relieve itself on her property.

This led to a heated argument between the neighbors regarding where Appellant was permitted to walk his dog and whether his presence on the grass near the road constituted trespassing. Later that same day, Appellant delivered another letter to Appellee's mailbox. In this letter, Appellant defended his "right to walk" his dog on what he described as public land adjacent to the roadway, and he asserted that keeping his dog on the grass near the street did not amount to trespassing.

On May 8, 2022, Appellant was once again walking his dog near the boundary of Appellee's yard. The video from Appellee's security camera shows Appellant pausing on the street to speak with other neighbors while his dog remained on the grassy area. Then, the dog entered Appellee's property, and Mr. Johnson confronted Appellant. Appellee alleged that when the dog entered the property, Mr. Johnson used "two open hands to usher the dog off the property." An altercation ensued in which Appellant shoved Mr. Johnson in front of his two children and Mr. Johnson called the police. The dispute eventually deescalated with the assistance of neighbors.

On May 10, 2022, Appellee found another letter in her mailbox dated May 9, 2022, in which Appellant included an annotated subdivision plat map (the "Plat"). In the letter, Appellant explained that, according to the Plat and property records, the public right-of-way extended approximately ten feet into what Appellee considered her front lawn and that "the property lines begin [ten feet] back from the street" but "the city owns that ten feet" due to a fifty-foot public right of way. Appellant requested that Appellee refrain from interfering with him and his family when they are walking in the neighborhood within what he viewed as the public right of way.

Following his May 9, 2022 letter, Appellant continued to engage in similar behavior. The record indicates that Appellant continued to make use of the strip of grass and the edge of Appellee's driveway to walk his dog and allow the dog to relieve itself. He was observed lingering on or near Appellee's property on many occasions. Appellant also continued to walk outside wearing only underwear within sight of Appellee's residence.

At one point, Appellant removed a sign from Appellee's lawn that had been placed there to deter pet owners from allowing dogs to relieve themselves on the lawn. In October of 2022, Appellee's security camera photographed Appellant walking around Appellee's property in the early morning hours. When Appellee awoke the next morning, she found "X" marks written in chalk in the street in front of her driveway.

Johnson sought a restraining order, which led to proceedings too tedious to detail. But the bottom line was a year-long order barring Faeder

  1. From speaking to or attempting to engage Mr. Johnson or Ms. Johnson in conversation or any attempt to elicit a response from either of the Petitioners in any manner whatsoever.
  2. From entering onto or walking upon their property …, including the approximate ten (10) foot dedication adjoining the Johnson property to [the street], whether or not the aforesaid strip of property is deemed a public right-of-way or their private property ….
  3. From allowing any pet of yours or your family to enter upon the Johnson property described above for any purpose whatsoever, irrespective of whether the animal is leashed or unleashed and from allowing such animal to urinate or defecate upon the above-described property.
  4. From attempting to communicate with Mr. or Ms. Johnson by telephoning or placing any correspondence whatsoever and to whomever addressed in the Johnsons' mailbox at their residence or leaving any note, messages or notices on the above-described property.
  5. From cutting, trimming, or damaging any vegetation or landscaping on the above-described property.
  6. From blocking the ingress or egress of the Johnson property driveway ….
  7. From wearing the colorful, revealing underwear described in the Findings of Fact in this cause while walking on the roadway in front of the Johnsons' residence.
  8. From parking a motor vehicle, belonging to [Faeder], … or in which he owns an interest, along the roadway in front of any part of the Johnsons' property described above.

Nearly a year later, "Appellee moved for a five-year extension, alleging that Appellant violated the order" by "park[ing] his wife's car directly in front of Appellee's residence." Appellant responded arguing, among other things, "that the condition allegedly violated was void ab initio pursuant to the First and Fourteenth Amendments because he was engaged in a peaceful protest." The court concluded that "Appellant did not violate the letter of the original order because Appellant did not have an ownership interest in his wife's car," but "extended the order of protection for a period of one year finding that Appellant's actions demonstrated a continued pattern of intimidation and harassment in violation of 'the spirit of the order'":

The trial court noted that Appellee "emphatically testified that she remained fearful of [Appellant] and his harassing, and stalking behavior." In addressing Appellant's behavior, the trial court stated that Appellant's "purpose continues to be to bully and intimidate his neighbors." The trial court granted a one-year extension of the order of protection on February 7, 2025, and issued its written findings and conclusions of law on February 27, 2025. The trial court noted that Appellee remains fearful that Appellant will continue to harass her upon expiration of the order of protection and found good cause to justify the extension. The trial court modified the extended order of protection to restrain Appellant "from parking any vehicle or conveyance of any type in front of" Appellee's home.

Appellant appealed the extension of the order, and the appellate court affirmed:

This Court has previously found an extension of an order of protection permissible where a respondent did not commit a technical violation of the order of protection, but the petitioner was found to be fearful of the respondent….

[Appellee testified] during the extension hearing that she believed Appellant did not intend to curtail his behavior once the original order of protection was set to expire. This included a February of 2024 "Memorandum of Understanding and Notice of Intent to Protest" that Appellant delivered to Appellee and the trial court stating "that he intended to continue wearing his underwear in all other parts of the neighborhood not explicitly outlined in the Order." In addressing the April 11, 2024 incident in which Appellant parked his wife's vehicle in front of Appellee's home, the trial court emphasized that Appellee "was even more fearful that [Appellant] would begin to repeatedly violate the [c]ourt's order." The trial court noted in its final order that "[t]he insidious part of a stalker or harasser is the great efforts such perpetrators go to in an effort to prove to their victim that the stalker is above the law and cannot be prevented from his stalking and harassing behavior." …

The court also rejected appellant's constitutional claims, on the grounds that he "fail[ed] to direct this Court to authority in support of his position that the trial court violated numerous Constitutional rights" and "fail[ed] to develop his constitutional arguments."

I e-mailed Mr. Faeder to ask for his comments, and here's what he has to say; these are of course just his reactions, and I'm not endorsing any factual assertions that are made there:

  1. There is no finding that I ever drew pink X's on the road. I did walk my dog on the public street that night. My 6 year old daughter, unbeknownst to me, had come out and followed me, without my knowledge putting pink X's in front of several houses.
  2. There has never been any finding that I have trespassed on Mrs. Johnson's property. If the property law is correctly understood, it is apparent from the multitude of videos that I was always on the public street. Mrs. Johnson's property is located 112-221 feet from my property. I have repeatedly argued that the OP statute specifically excludes constitutionally protected activity, that all protesting occurred on the public street, and that the public street is a traditional public forum requiring strict scrutiny.
  3. This initially began when 4 neighbors (2 married couples from neighboring households) filed for 4 separate orders of protection. They were never joined or consolidated and the final hearing date for one of them was several months before the final hearing date in the Johnson case. Nonetheless, the Judge treated them as one case, issuing carbon copies and fashioning restrictions for all involved based on events from individual cases.
  4. One major issue here, that was left out by the Appellate Court, is that my neighbors requested approximately $100,000 in fees and costs and the Court granted them roughly $54,000 (approximately $40,000 to the Johnsons). Fortunately, I was able to declare bankruptcy and paid nothing due to Tenancy by the Entireties.
  5. I have never touched, threatened, called, texted, or e-mailed Mrs. Johnson. I have never met her youngest child and have had no interactions of any kind with her oldest child since 2020, yet both of them are protected individuals under the order.
  6. Under TN law, the entire dedicated right of way is defined as "the street" and "the sidewalk" is defined as the entire area between the curbline and the adjoining private property line. City/county and State codes specify that this area is intended for pedestrian use. Metro Code even has a statute discussing unpaved sidewalks.
  7. My understanding of what the Court of Appeals has done is to say that the 1st Amendment does not protect the protesting of another individual's actions because it is not an important enough matter. I do not believe that aligns with federal 1st Amendment Jurisprudence.
  8. I nicknamed these colorful underwear my "Amicus Briefs." My neighbor reported that nickname in her petition, filed October 2022. I repeatedly adopted that term throughout the proceedings, both in the trial court and on appeal. The Trial Judge prohibited me from using that term and both the Trial Judge and the Court of Appeals willfully left that out of their opinions.
  9. The referenced Notice of Intent to Protest was not delivered to Mrs. Johnson: it was served to her lawyer as I filed it. In that notice, I expressed my intent to protest the Court's ruling and violation of my 1st Amendment Rights by continuing to wear the colorful underwear on non-prohibited parts of the public street. So, even if the Court is correct that protesting an individual's attitudes through clothing choices on the public street is not protected under the 1st Amendment, the Court went beyond that by extending the Order of Protection based on an anti-state-action protest.
  10. In my filings, I cited numerous precedents that went wholly ignored by the Courts. Most important were Brindley v City of Memphis (6th Circuit) and Counterman v Colorado (US Supreme Court).
  11. The Order of Protection is currently set to expire on either 2/7/26 or 2/10/26 (the date is inconsistent across different orders). I expect Mrs. Johnson to file for another extension. We have had no contact whatsoever since my letter from May, 2022 requesting that she and her husband leave me and my family alone. When I parked my wife's car up the street in April, 2023, none of the Johnsons were present and we were having a double-vanity delivered for our children's bathroom, so I was merely parking my wife's car out of the way of the delivery. The trial judge intentionally left out all facts that could benefit me, the Court denied my request for the recording so I could have a transcript produced, and the Court of Appeals denied my motion to order that a transcript be produced from the recording.