The Minnesota Court of Appeals has just affirmed the lower court’s order.
From Butler v. Lipscy, issued on Monday by Minnesota Court of Appeals Judge Keala Ede, with Judges Diane Bratvold and Jon Schmidt concurring:
Butler contended that Lipscy carried out acts of harassment aimed at Butler and Butler’s children, including: tailing or tracking Butler; making unsolicited visits to Butler; intimidating Butler through threatening actions; taking photographs of Butler without consent; and using social media to harass Butler….
According to the appellate court’s summary of the trial court’s findings, the facts were as follows:
When the district court issued the Harassment Restraining Order (HRO), Butler was a licensed marriage and family therapist serving communities that have historically faced marginalization. This included members of the Queer community, which Butler defined as “the Two Spirit (2S)/Gay/Lesbian/Bisexual/Transgender/Intersex/etc. community as a whole and individually.” Butler also played an active role with the local Itasca Pride organization, volunteering and serving on the board. She has three children, one of whom identifies as non-binary.
Lipscy held “Christian beliefs” that she publicized online. She also managed a web page called “Grand Rapids Rant.”
Itasca Pride hosted a festival on June 23, 2024. Prior to that event, Lipscy posted online about a public gathering titled, “Protect the children from Pride/Drag show and Walk with Prayer,” which Lipscy scheduled to occur at the same date, time, and venue as the Itasca Pride Festival. Before the events took place, Lipscy wrote online: “But if you cause one of these who trust in me to fall into sin, it would be better for you to have a large millstone tied around your neck and drowned in the depths of the sea. #BeTheirVoice Matthew 18:6.” Lipscy also used the internet to urge attendance and to urge wearing white shirts opposing Itasca Pride and in favor of “traditional family values.” At the June 23 Itasca Pride festival, Lipscy photographed Butler’s children, and Butler’s husband asked Lipscy to stop.
On September 28, Lipscy posted images from an Itasca Pride webpage on her Grand Rapids Rant site, adding her own captions. The images depicted Butler’s children with captions such as “Sickening,” “Poor children,” and “Those poor poor kids.” Lipscy also identified Butler by name, labeled Butler’s professional title as “local therapist”—which “implied that … Butler was not a real therapist”—and referred to an event organized by the Minnesota Department of Natural Resources and Itasca Pride as having “influence over … children.”
On October 20, Lipscy attended an event led by a school-board candidate advocating a ban on transgender females in women’s sports. Lipscy streamed the event on her Grand Rapids Rant site, identified Butler’s husband, and described him as “pushing for boys to be in girls’ bathrooms and supporting bringing kids to drag events.” More specifically, Lipscy stated that Butler’s husband “wasn’t truly interested [on the day of the event] …, he just wanted to report back. Silly boy, [he] could’ve just watched live with [Butler].” Additionally, “Butler’s children attend the same school as … Lipscy’s niece,” and “Lipscy has been at the school since the above-described incidents … occurred.”
Butler became generally fearful for her own safety and that of her children after these incidents involving Lipscy. She installed four cameras on her property and two on her vehicle, discussed safety concerns with clients during sessions, removed signage from her office, met with clients in locations other than her office, and conducted telehealth sessions to address client safety concerns.
Her children grew afraid to venture into public spaces without a parent nearby and exhibited heightened fear in public. One child altered their dress to avoid physical or emotional harm, Butler’s children feared their photos might be posted online to bring shame to their family, and they asked in public whether the people around them were “people that hate Queer people.”
The court issued a harassment restraining order that, among other provisions, prohibited Lipscy from the following:
- “shall not harass … [Butler] or her minor children named in the Petition”;
- “shall have no direct or indirect contact with … [Butler] or her minor children, including visits, phone calls, electronic communications such as email or social media, threats or assaultive behavior toward the protected persons, removal or damage to the protected persons’ property, unlawful entry into their residence, and/or taking photos of the protected persons without Butler’s permission”;
- “shall not be within 500 feet of … [Butler’s] home” or her place of employment; …
Because the court had determined that Lipscy’s social media posts about Butler amounted to “harassment,” the order barred Lipscy from continuing to mention Butler. Indeed, the appellate court acknowledged this, noting (emphasis added) that the HRO
- “permits Lipscy to express her religious views, so long as she does not refer to Butler or her children and does not approach Butler, their home, or their workplace,” and
- “merely forbids [Lipscy] from directing harassing conduct toward Butler and her children—such as photographing them, repeatedly naming them, and targeting them.”
The appellate court sustained the order, reasoning that Lipscy’s conduct could indeed be characterized as harassment under Minnesota’s HRO statute, which defines harassment as “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.”
The district court found that Lipscy engaged in harassment, specifically by tailing, watching, or pursuing Butler and Butler’s children; frightening Butler and her children; taking photographs of Butler’s children without consent; and using social media to harass Butler on multiple occasions. In support of this, the district court relied on evidence showing Lipscy reposted pictures of Butler’s children from the Itasca Pride webpage to the Grand Rapids Rant with captions such as “Sickening,” “Poor children,” and “Those poor poor kids.”
The district court also based its decision on evidence that Lipscy reposted images from the Itasca Pride event while referring to Butler in ways that questioned Butler’s credentials as a therapist and shared a video of Butler’s husband while naming him. And the court made specific findings about how Butler was “generally fearful for the safety of herself and children following the incidents involving … Lipscy.” …
And the court held that these actions do not infringe upon Lipscy’s right to free speech or religious liberty, because they target conduct that infringes upon a person’s right to privacy, which Minnesota courts have considered unprotected by the First Amendment.
I personally believe such an injunction may be unconstitutional, at least with regard to the prohibition on repeatedly naming Butler in online posts; for further discussion of these kinds of orders and the appellate decisions that often limit them, see my Overbroad Injunctions Against Speech (Especially in Libel and Harassment and Cases) article. While I sympathize with the goal of shielding children from the conflict, I remain unsure about its constitutional viability even in that respect. Nevertheless, the Minnesota Court of Appeals found the injunction permissible, and I thought it important to highlight that conclusion.
Sara Jane Baldwin (Gender Justice) represents the plaintiff.
