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Utah Court of Appeals hears argument over when persistent protest becomes stalking
Summary
In oral argument on Ragsdale v. Fishler (No. 20230023) the appeals court wrestled with whether repeated, offensive protest conduct can constitute "stalking" under Utah law without violating the First Amendment, focusing on the adequacy of district‑court findings, the Baird factors, and whether injunction language unlawfully burdens speech such as yard signs.
The Utah Court of Appeals heard argument in Ragsdale v. Fishler (No. 20230023) over whether repeated, offensive protests directed at a neighboring business can legally qualify as stalking and, if so, whether a resulting injunction unconstitutionally restricts First Amendment speech.
Kurt Ignatison, counsel for appellant George Fishler, told the three‑judge panel that the case "is about whether a nonviolent protest of the business next door turns into stalking if your protest is sufficiently offensive...and you persist in the same protest for an extended period of time." Ignatison urged the court to distinguish moral judgment from the legal test and to scrutinize whether the district court tied its findings to the objective Baird factors that define an actionable course of conduct.
The judges probed whether the appellate court should perform a de novo legal review under Baird or remand because the district court’s findings used broad characterizations — for example describing a "10 year campaign of harassment" and conduct that could be viewed as "unhinged." Ignatison argued the district court had not shown how individual Baird factors produced the legal conclusion that a reasonable person in the petitioner’s position would fear for safety or suffer emotional distress.
Respondent counsel James Dunkelberger stressed the role of district‑court factfinding, saying the trial judge made detailed findings after a two‑day trial that listed signs, obscene gestures and shouted obscenities as part of a course of conduct directed at Ms. Ragsdale. Dunkelberger argued the injunction had been narrowed to prohibit conduct "directed at" the petitioner and was therefore a permissible, content‑neutral remedy that a finder of fact could apply on a case‑by‑case basis.
A recurring dispute concerned yard signs and whether their placement made them "directed at" the petitioner. Counsel debated whether the content of a sign must be examined to decide direction and effect, and whether a conduct‑focused analysis can rely on attendant circumstances (timing, placement, testimonial evidence) without performing content‑based scrutiny. Judges cited past authorities including Counterman (addressing mens rea for speech), Snyder (Phelps/Westboro decisions) and Reed v. Gilbert while testing how those precedents fit the mixed conduct/speech line the parties advance.
Ignatison used hypotheticals — e.g., repeated billing letters or large public signs — to show how the statute’s emotional‑distress prong could sweep broadly and urged the court to preserve First Amendment safeguards if it affirmed a stalking finding. Dunkelberger countered that the statute and injunction require demonstration that communications were directed at the petitioner; enforcement would still require the district court to show the relevant facts.
The court took the arguments under advisement and said it would issue a decision after considering the briefing and the panel’s questions. No ruling was announced at the hearing.
