Appeals argument probes 'true threat' standard in harassment protection dispute
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Summary
In EB v. JR, counsel for EB argued that repeated, escalating confrontations at a zoo (yelling, in‑face harassment, alleged chasing and a licensing complaint) created an objectively reasonable fear of physical harm; opposing counsel questioned whether the conduct met the statutory "true threat" standard.
The panel heard argument in EB v. JR, an appeal arising from a district court harassment‑protection order. EB’s counsel described repeated, escalating confrontations in and around a zoo, including persistent in‑person harassment, alleged chasing incidents on two occasions and an administrative campaign (a complaint to licensing authorities) that the speaker said was intended to remove EB from her job caring for zoo animals.
Counsel argued that taken in context the conduct created a reasonable fear of imminent physical harm because of the daily nature of the interactions and the intensifying tone. The panel pressed counsel on whether the affidavit established the objective elements of a "true threat" — which some authorities characterize as requiring an expression of intent to commit unlawful violence — and whether subjective fear alone suffices.
Appellee counsel urged the court to assess the record and the affidavit and to apply published guidance that speech standing alone must be evaluated for whether it constitutes a true threat or falls within protected speech. The panel asked about the affidavit's specific allegations and whether the district court had sufficient objective evidence to find a reasonable fear of physical violence. The matter was submitted after argument.