From Siewert v. Decker, decided Thursday by the Wisconsin Court of Appeals (Judges Lisa Stark, Thomas Hruz, and Gregory Gill):
Siewert testified that she is the editor and publisher of Wausau Pilot and Review, a local news website, and she is also a broadcast specialist for Wisconsin Public Radio. Siewert explained that she had known Decker for five or six years, and during that time she had published some of his work on her website. She testified that “[t]hings started to get a little strange” with Decker in late October 2021, and in December he “started initiating some text messages with [her], wanting to get together.” Despite Siewert telling Decker that she was busy, he continued to contact her repeatedly via text message.
In one instance, Decker texted Siewert when she was in the hospital following emergency surgery, and when she apprised him of her location, “he responded by asking if he could visit, kept on texting, asking me if I would take a bi-weekly column from him that he wanted to call ‘Question Authority.’ I responded by saying that I’m literally an hour out of surgery. He kept calling.”
Decker continued calling and texting Siewert, and on December 27, 2021, she asked him to stop contacting her. Decker texted Siewert again on January 7, 2022, regarding an article that he wanted to write. Once again, Siewert asked Decker to stop contacting her, and she blocked his phone number. Decker then began emailing Siewert, sending her twenty-two emails after she asked him to stop contacting her. Siewert testified that she also asked Decker to stop contacting her multiple times via email.
On February 1, 2022, Siewert received a call from the Wausau City Hall informing her that Decker had told city employees that he worked for her. Siewert believed that Decker’s actions in that regard were harmful to her reputation, and she therefore emailed Decker and asked him to “stop claiming an association that you do not have.” Decker responded by denying that he told anyone he worked for Siewert and stating, “Chill the fuck out and do a follow-up as appropriate soon, please.” Siewert “felt like [his response] was a demand and not appropriate.” Decker later sent Siewert three more emails, after she again asked him to stop contacting her.
On March 7, 2022, Siewert wrote to Decker that he had “no professional need to contact Wausau Pilot and Review” and that she would consider any further contact to be harassment and would submit his emails to law enforcement. Decker continued contacting Siewert via email.
Siewert also testified that, on two occasions in the past, Decker had showed up unannounced at her office after she stopped answering his calls or emails. In one email, Decker told Siewert that she would “come to regret not covering his issues,” which she found concerning. At that point, Siewert contacted the police and subsequently filed the paperwork for a restraining order.
Siewert testified that she viewed Decker’s “continuing behavior” as “threatening.” She stated that Decker’s act of showing up at her place of employment made her “fearful” and that Decker had no reason to be there “except to try to harass and intimidate” her. She testified, “When someone calls you over and over and contacts you through constant e-mail messages and shows up at your place of employment, these are common examples of stalking, and it is very disconcerting, especially as a woman.” Siewert also stated that she believed her fear was warranted, given that Decker had “a 2016 felony conviction for abusing his own child” and had “eight open criminal cases in Marathon County.” When asked what she believed Decker wanted her to do, Siewert responded:
[H]e wants me to write about what he perceives as an unjust arrest at [a local middle school], as unjust behavior—or unjust treatment by school officials, by people in the city attorney’s office, by the mayor’s office. He wants me to write about those things. I have reviewed the complaints in each of those cases. I do not share his view that there is something amiss in the way he was treated or in the charges that were filed against him. So our opinions on that differ, but that’s what he wants. He wants that, in my opinion, and he wants me to allow him to write a column about how he was unjustly treated….
I feel like he is trying to intimidate me into allowing him to publish a column that I have no interest in publishing. I feel he is trying to push me into writing a story about an injustice that I don’t feel is real, and, ultimately, it’s my decision what goes in that newspaper.
Siewert conceded that, at times, Decker had emailed her to point out spelling errors in her publication. She testified that while she initially appreciated the corrections, at some point the tone of Decker’s emails changed, becoming “almost insulting.” She believed that Decker’s behavior was escalating and that his actions during the incident at the middle school showed that he was spiraling out of control. She testified that Decker’s behavior had frightened her coworkers, had caused her to install a security system at her home, and had resulted in her missing four days of work.
On cross-examination, Decker asked Siewert a series of questions regarding a headline from Wausau Pilot and Review stating that Decker had been arrested outside of the city attorney’s office following a disturbance. He questioned Siewert about her refusal to change the headline to refer to an “alleged” disturbance. Siewert responded that the headline did not need to be changed because the police report regarding the incident stated that Decker’s behavior had disturbed the people in the office.
During his testimony, Decker asserted that he had not harassed Siewert, although he conceded that Siewert’s testimony regarding their past contacts was “[m]ostly” accurate. Decker testified that his intent in contacting Siewert was “to get the truthful story out there” and “to help Wausau Pilot and Review be the finest news source it can be.” Decker also testified that on one of the occasions when he was present at Siewert’s place of employment, he stayed in the hallway and spoke to an old friend, which was a legitimate reason to be in that location.
Decker also testified that his requests that Siewert edit the headline discussed above to state that he had been arrested following an “alleged” disturbance were reasonable because the AP Stylebook states that “alleged” should be used “when necessary to make it clear that an unproved action is not to be treated as fact.” Finally, Decker stated that while he regretted “being perhaps over the top and alienating” Siewert, it was “never [his] intent to harass or intimidate or demean or insult her.”
The circuit court determined that Decker had engaged in a course of conduct or had repeatedly committed acts that harassed or intimidated Siewert. The court further concluded that there were reasonable grounds to believe that Decker had engaged in harassment with the intent to harass or intimidate Siewert. The court credited Siewert’s testimony that Decker had continued to contact her, even after she had asked him to stop on five occasions. The court also credited Siewert’s testimony that she felt intimidated by Decker’s conduct. The court explained:
I believe that what you are trying to do is impose your will that she publish material regarding your issues or that she publish material regarding your issues in the way that you want it to be published …. [Y]our intent here is to impose your will upon Ms. Siewert. And, in that sense, you have crossed the line.
The court also concluded that Decker did not have a legitimate purpose in continuing to contact Siewert after she had repeatedly asked him to stop doing so. The court therefore issued a harassment injunction against Decker for a period of four years, following a discussion with the parties regarding the scope of the injunction.
The court concluded that Decker’s conduct was indeed harassment, even in the absence of any “direct threat”:
Decker contends that the evidence was insufficient to support the issuance of a harassment injunction because he did not intend to harass Siewert and because his contact with her had a legitimate purpose. In essence, Decker asserts that his contact with Siewert was intended to protect his own reputation and to help Siewert by correcting errors in her publication.
The circuit court found, however, that Decker continued contacting Siewert after she had asked him to stop five times. The court further found that Decker’s intent was to impose his will on Siewert to make her write about certain issues and to cover those issues in the way that he wanted them covered. These factual findings are supported by the evidence summarized above and are not clearly erroneous. While Decker testified that he did not intend his repeated and persistent contact with Siewert to be harassing, the court clearly did not find his testimony in that regard to be credible. The court’s findings provide reasonable grounds to believe that Decker intended to harass Siewert and that his actions served no legitimate purpose….
Decker next asserts that his contact with Siewert was not threatening and, accordingly, his “speech was constitutionally protected.” He therefore claims that the issuance of the injunction violated his First Amendment right to free speech.
Decker’s First Amendment argument is undeveloped. He fails to acknowledge that “an individual’s First Amendment speech rights are ‘not absolute'” and that the right to free speech can be restricted when a person engages in harassment with the intent to harass and intimidate another. Regardless, the injunction issued in this case does not enjoin Decker’s speech; it enjoins him from contacting Siewert. Decker still has the right to speak his mind and disagree with Siewert, he simply may not do so by contacting Siewert during the term of the injunction….
Sounds like a reasonable conclusion, since the order was based on unwanted speech to Siewert, and only barred contact with her and not speech about her (see Part I of this article for more on that). Still, it’s pretty unusual to see such orders obtained by publishers, as to people who are wanting the publishers to write about certain things, so I thought it was worth noting.
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