Man's Criticism of Nonprofit Found to Be "Harassment," Leads to Order Banning Photographing Company's Directors and Officers

From Monday's decision in Lake Itasca Region Pioneer Farmers, Inc. v. Fenske, by Minnesota Court of Appeals Judge Bratvold, joined by Judges Ede and Schmidt:

Pioneer Farmers … is a Minnesota nonprofit corporation that "organizes and conducts annual public demonstrations of historical steam-powered agricultural equipment at Itasca State Park and elsewhere for educational and historical purposes." Pioneer Farmers also owns real property near the north entrance of Itasca State Park in Park Rapids. Appellant Gerald W. Fenske is a former member of Pioneer Farmers. Fenske's membership was revoked in May 2023 for, according to allegations by Pioneer Farmers, "repeated disruptive behavior and conflicts with other members."

In December 2025, Pioneer Farmers petitioned the district court for an HRO [harassment restraining order] against Fenske, alleging that Fenske engaged in harassment "directed at" Pioneer Farmers and its "directors and officers." Along with the petition, Pioneer Farmers filed an affidavit by its president, who averred that, following the revocation of his membership, Fenske made "false and/or misleading complaints to various Minnesota state agencies" about Pioneer Farmers. In response, Pioneer Farmers sent Fenske two cease-and-desist letters.

According to the president's affidavit, after receiving the cease-and-desist letters, Fenske contacted individual members, made "unfounded ownership claims regarding equipment" on Pioneer Farmers' property, and continued "to attempt to stir discord among associated organizations." Fenske also maintained a personal web page titled, "Itasca Pioneer Farmer's Show Cancelled—Allegations of Unsafe Boiler Operation Reason for Cancellation." The president averred that Pioneer Farmers had never cancelled its annual event "for that reason."

In January 2026, the district court conducted a two-day evidentiary hearing on the petition. In March 2026, the district court granted the HRO. The district court found that (1) Fenske maintained "a publicly accessible website containing statements about [Pioneer Farmers'] annual event that imply the event's cancellation, resulting in confusion to the public," and (2) Fenske "contacted three board members after being served with a Cease & Desist letter." Based on these findings, the district court determined that "reasonable grounds" showed that Fenske "engaged in harassment which has or is intended to have a substantial adverse effect on safety, security, or privacy" of Pioneer Farmers.

The HRO prohibited Fenske from contacting Pioneer Farmers directly or indirectly, including "taking pictures of a protected person without permission" of Pioneer Farmers. The HRO also prohibited Fenske "from being within 500 feet" of Pioneer Farmers' property. But the district court declined to prohibit Fenske from contacting Pioneer Farmers' "officers and directors," because Pioneer Farmers "failed to identify those individuals." …

The court held that, under Minnesota precedents, an HRO could be granted to prevent harassment of a corporation, and not just an individual; and it held that the HRO was justified under the state statute (which, in relevant part, applies on a showing that defendant engaged in "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, regardless of the relationship between the actor and the intended target"):

If a district court finds reasonable grounds to believe the HRO respondent has engaged in harassment, it may issue an HRO that "orders the respondent to have no contact with another person." Fenske does not challenge the district court's finding that Fenske harassed Pioneer Farmers or the HRO's prohibition on Fenske having "direct or indirect contact" with Pioneer Farmers. {Fenske [also] does not challenge the HRO's reference to "a protected person," which is not defined in the HRO.} Fenske challenges only the HRO's prohibition against "taking pictures" of a protected person without the permission of Pioneer Farmers.

We understand Fenske to argue that photography is not direct or indirect contact under section 609.748, subdivision 5(a)(2)…. "The phrase 'no contact' is clear and understandable. The common meaning of the word 'contact' is a coming together or touching, as of objects or surfaces, the state or condition of touching or of immediate proximity, or connection or interaction; communication." In other words, the common understanding of "contact" includes immediate proximity, interaction, and communication.

Photography often involves immediate proximity to or interaction or communication with the subject of the photograph. Photography that involves any of these, therefore, is within the common meaning of "contact." Because the HRO statute authorizes the district court to prohibit Fenske from contacting Pioneer Farmers, and contact includes photography that involves immediate proximity to or interaction or communication with a protected person, the district court acted within its discretion by prohibiting Fenske from taking photographs of Pioneer Farmers. We modify the HRO to clarify that it prohibits photography that involves immediate proximity to or interaction or communication with a protected person without Pioneer Farmers' permission.

The court rejected a First Amendment challenge to the photography restriction. It concluded that the restriction was content-neutral:

{The HRO "does not prohibit" Fenske "from expressing" his ideas; it requires him to express them without contacting Pioneer Farmers by taking photographs of a protected person. Our analysis of the photography restriction in this HRO is consistent with this court's First Amendment analysis of HROs generally. We have reasoned that "[a]n order prohibiting all contact is content neutral because it does not identify or prohibit any particular type of speech but is designed to protect privacy and security." Because we have interpreted the HRO to prohibit photography that involves contact with Pioneer Farmers, i.e., immediate proximity to or interaction or communication with a protected person, the restriction is content-neutral.}

It held that Fenske essentially waived any argument that the restriction fails the narrow tailoring required for content-neutral restrictions:

Fenske … maintains that Pioneer Farmers "made no showing at the evidentiary hearing that [his] photography, as opposed to other alleged conduct, constituted harassment." … When evaluating a content-neutral restriction as applied, appellate courts determine whether the restriction burdens "no more speech than necessary to serve a significant state interest" in light of "the specific circumstances presented by this case." … Because Fenske did not provide a hearing transcript, we cannot evaluate what arguments or evidence related to photography may have been presented at the evidentiary hearing; thus, we cannot examine "the specific circumstances presented by this case" to determine whether the HRO is narrowly tailored.

And it held that Fenske had likewise waived other objections:

In his reply brief, Fenske contends that the district court also violated the First Amendment by "prohibiting [him] from contacting board members, participating in governance, or speaking publicly about" Pioneer Farmers. Generally, issues not raised or argued in appellant's principal brief cannot be raised in a reply brief. Fenske's reply arguments extend beyond those raised in his principal brief; therefore, we decline to consider them.

For more on other, even broader, anti-harassment orders stemming from public criticism, see Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases).