MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 26th of August, 2019. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. It’s an understatement to say that the vast majority of legal disputes in the United States do not advance beyond the level of the federal appeals courts. An even more vast majority don’t make it to the appellate level.
To give you a sense of the magnitude of the understatement, consider the following. I looked this up at the website of the federal courts:
Attorneys filed almost 50,000 federal appeals last year. They brought more than 350,000 cases into the federal district courts.
That’s more than 400,000 possible disputes that could be fodder for the Supreme Court, and I’m not counting bankruptcy cases and matters in state courts that touch on federal constitutional issues.
Now, out of all that, the Supremes receive something like 7,000 to 8,000 petitions each year, and accept no more than about 80.
If you’re doing the math, the justices agree to about 1 percent of those petitions.
But here’s another way of thinking about this. Your statistical odds of being struck by lightning in your lifetime is greater than the chances of a federal matter filed this year making it to the Supreme Court next year.
But, staying with the metaphor, lightning does strike often enough that it’s worth talking about. And when it strikes, it makes an impact.
REICHARD: Right, like a court case!
So let’s think about cases off in the distance as gathering clouds, and what we hear as claps and peals of thunder as possible Supreme Court controversies.
Sometimes the facts of a seemingly small rumble of a case reveals problems in the law the drafters didn’t intend.
Or maybe they did. Depends.
Today, a case where the initial dispute might have involved just regrettable timing.
I’ll let the parties tell the story. But first let’s introduce them to you.
Anne Redding is president and co-founder of a group called the Christian Action League of Minnesota.
REDDING: Our focus is raising awareness of the harms of pornography and equipping regular people like myself to fight against it.
The understated Redding is passionate about this cause, and has been for almost ten years. She sees how severe societal harms are linked to pornography.
REDDING: Pornography is the foundation for all sexual abuse, whether it’s prostitution or sex trafficking. And I know that pornography is intrinsically evil because it commodifies a human being. It robs them of their dignity and it entraps them in work that most who are involved in it desire to get out of.
Part of her strategy to raise awareness of the problem of pornography involved the local alternative arts-oriented newspaper called City Pages. The publication gets paid to advertise businesses, among which are sex-oriented. Strip clubs, pornography stores, phone sex. Sometimes it has feature articles about those industries. That sort of thing.
So Christian Action League sent postcards and e-mails to non-sexually oriented businesses who advertise in City Pages. Redding describes one of her direct-mail pieces.
REDDING: It was a picture of a man with blindfolds on. Just a word picture to show that some people blindly support something they’re not even aware of. They might not even know that City Pages has had those kinds of ads. So that was the picture on the one side. And my postcard said that as a woman, was she okay with advertising in a publication that objectifies women, that basically has ads for strip clubs. And many people thank us for alerting them to the fact that they are supporting something they do not wish to support.
But one recipient wasn’t thankful. Just the opposite.
Leigh Foster is a family law attorney in Minneapolis. She advertises in City Pages, in addition to other platforms like radio stations.
FOSTER: And the demographics are I believe like 19 or 20 through mid fifties. And that was a good demographic for me. People who are like establishing perhaps their lives and maybe making those connections with lawyers, accountants, tax people, et cetera.
Foster first received a card in the mail from Christian Action League in 2013. It suggested her advertisement was tantamount to support for a publication that promoted prostitution and sex trafficking.
She stuck the card back in the mail and added a note saying she didn’t want to hear from the group again.
FOSTER: To their credit, I did not hear from them again. In 2018, I moved my practice from St. Paul to downtown Minneapolis. And toward the end of March, they started contacting me again—and this time it was a postcard.
…because she’d moved her office and got a new address. Evidently, that’s what triggered the renewed contact with Foster.
This time, though, the postcard included a quote from a young woman who’d been kidnapped and used as a sex slave. It said, “All I know is that pornography made my living hell … worse.”
Foster was incensed.
FOSTER: The first postcard that I received was addressed specifically to me and said something to the effect as a woman, “Are you okay with this?” Which I was offended by because it was making some assumptions about me that weren’t true.
To Foster’s way of thinking, City Pages is a likely place someone in trouble might run across her ad, and call her up for help. She does pro bono work for women and children in domestic abuse situations—meaning, she represents for free.
In addition to the physical mail, an email landed in her junk folder, too. So Foster replied to that with a no-contact request. In her reply email, she cited Minnesota law that prohibits unwanted acts. Another postcard arrived. Foster responded the same way.
FOSTER: I was concerned about the adverse effect on my reputation. I have a very good reputation in the twin cities as a family law attorney. And so here, this, this rather salacious looking postcard is going through who knows how many hands before it lands on my desk. And one week later I got another one and that’s when I decided to file the harassment restraining order.
For her part, Anne Redding did not receive notice, nor a hearing prior to the restraining order being issued.
That’s the usual procedure.
For Redding, coming home to a sheriff at her door was unnerving. She hadn’t intended to harass anyone.
REDDING: The time frame between when she asked and when she received her last post card was about a week. It was just a matter of a time constraint as far as things crossing in the mail. And she only received one postcard after that. Not a deluge. I mean she could have communicated with us and said, “Hey, I got one more. What gives?” Instead of serving a restraining order.
FOSTER: I understand that that’s her argument, but it still happened and I’m kind of a three strikes you’re out, girl. When I got the fourth contact, that’s when I filed the HRO. The Ex Parte HRO.
The HRO, meaning the “harassment restraining order.”
Well, eventually a hearing did come and the parties agreed to settle. Redding’s group agreed not to contact Foster in any manner for two years, and Foster agreed to drop the HRO.
Acute problem solved.
But not completely.
Redding’s attorney will file a new lawsuit in federal court, challenging that harassment law that got Redding in trouble in the first place.
Her lawyer, Erik Kardaal, explains.
KARDAAL: And the problem for Ann was that if a member of the league were inadvertently to contact the law firm or there’s a mistake made or something, then they’re immediately arrested and put in jail. So it’s a really extremely harsh remedy.
But, you may think, if Foster used a law on the books to stop unwanted communications, what’s the problem?
Well, the problem has to do with the intersection of public venues, first amendment rights, and the harshness of results: a few unwanted postcards, versus possible jail time. And the way the law gets applied.
These two particular parties resolved their differences, but the statute itself is overbroad, to hear lawyer Kardaal tell it:
KARDAAL: But as a result of this harassment restraining order, Anne had to review her whole operation and it’s been shut down because of Minnesota’s harassment restraining order statute and the way the progressive left is using it to shut Anne down. And so Anne’s concern, if she sends out postcards to the other indies that advertise at this, more ex parte harassment restraining orders. That’s what Hennepin county district court doing, using the power of government to shut down a legitimate organization, Christian Action League, which is doing very valuable work for the community. Now, we used to think of this stuff as public service trying to stop ads for strip clubs. In fact, the two major newspapers here years ago, the Star-Tribune and the St. Paul Planner Press stopped advertising strip clubs. So, why is it that what used to be good, encouraging people not to advertise for strip clubs, now’s viewed as criminal?
So this new lawsuit seeks to get the Minnesota harassment statute thrown out as unconstitutionally broad.
Here’s how it defines harassment, in part: “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…”
KARDAAL: And the key aspect of the complaint is that Anne’s organization, Christian Action League, has felt the brunt of that broad definition of harassment we’re talking about. Minnesota’s harassment statute is unconstitutionally overbroad and it needs to be thrown out. And now that premise is based on our philosophical understanding of community. And that is that as a community we’re able to communicate with each other about what’s right or wrong. Now the progressives, their view of the constitution is that basically organizations like Christian Action League don’t have a right to speak. So they’re ok with the harassment statute being used in this way. So there’s a real disagreement about how communities function and how the first amendment operates between the progressives and Anne’s organization Christian Action League.
So, what started as perhaps communications crossed in the mail has brought to light a bigger issue.
That is, chilling free speech under threat of expensive litigation, or even jail time.
It’s possible that the two women here, Anne Redding and Leigh Foster, are aligned in wanting to combat sex trafficking. They have different approaches.
I’ll add that both parties were polite with me on the phone, but I did read local news accounts that portrayed Foster as more combative. Obviously, I’m not privy to the conversation between Foster and the newspaper reporter, and I’ll just say sometimes newspaper reporters get things wrong.
But one article attributed a quotation to Foster referring to the Christian Action League’s mailings as “garbage,” for example. The piece quoted her saying she “didn’t need them to impose their beliefs” on her.
Maybe not. But another argument is that when the power of government gets involved and the law is applied harshly and unevenly, it’s time to change it or for a court to zap it like lightning.
And that’s this week’s Legal Docket.