February 7, 2023 | Tags: free speech, REASON
From Diedra T. v. Justina R., decided Friday by the Nebraska Supreme Court, in an opinion by Justice Jeffrey Funke:
Justina and Diedra met in 2015 and became "best friends." Thereafter, Justina, Diedra, and Diedra's husband began having sexual relations. Justina and Diedra agree that they never held themselves out as girlfriends, but disagree as to whether they described the relationship between Justina, Diedra, and Diedra's husband as polyamorous.
On March 30, 2022, Diedra filed a petition and affidavit to obtain a domestic abuse protection order against Justina on behalf of herself and her children. The petition alleged that Diedra ended her sexual relationship with Justina around March 2021 and "completely cut off" and blocked contact with Justina on March 15, 2022. Diedra further alleged that Justina had previously threatened to kill herself if they could not continue their sexual relationship and became "more obsessive" after Diedra ended that relationship. Diedra also alleged that after she cut off contact with Justina, Justina began texting and calling her from various phone numbers, begging Diedra to talk to her and threatening to disclose her relationship with Diedra and Diedra's husband to Diedra's employer and to kill herself. According to Diedra, Justina sent her 150 or more messages per day.
In addition, the petition alleged that Justina came to Diedra's home on March 29, 2022, and refused to leave until police ordered her to depart. Diedra alleged that she showed police her phone, which contained 63 texts, as well as missed calls, from Justina within the past 24 hours. Diedra also alleged that Justina texted and called her 10 more times on March 29 after she left Diedra's home….
We agree with Justina that a certain number of texts or calls does not in itself constitute harassment under Neb. Rev. Stat. § 28-311.02. However, … the record shows threats by Justina to "out Diedra as a queer woman to [Diedra's] employer" and to kill herself if they could not continue their sexual relationship…. [Section] 28-311.02 is not limited to threats of physical violence; it merely refers to conduct which "seriously … threatens." Further, § 28-311.02 also encompasses conduct that is seriously terrifying or intimidating, as well as that which is seriously threatening. ["Harass means to engage in a knowing and willful course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no legitimate purpose." -EV] As such, viewed objectively, Justina's statements—and in particular, her statements about disclosing the details of her sexual relationship with Diedra and Diedra's husband to Diedra's employer—could be read as threatening nonphysical harm to Diedra, as well as being intimidating….
The situation is different as to the children; here, we agree with Justina that there was insufficient evidence [to justify the no-contact order as to the children]. The record on appeal contains almost nothing regarding the children. Diedra's petition and affidavit for a domestic abuse protection order stated only that she removed Justina from the list of persons authorized to pick up the children from daycare because she was "worried/scared what [Justina] may do to them as [she does not] know what [Justina's] capable of." The petition and affidavit did not specifically articulate any basis for those concerns.
Nor did Diedra's testimony at the show cause hearing note any specific concerns about the children beyond Justina's threat to assert rights to the children based on her polyamorous relationship with Diedra and Diedra's husband. Justina, in contrast, testified that she had a close relationship with the children, was effectively their aunt and nanny, and never harmed or threatened them. Justina's testimony here was uncontroverted, even if the district court found Justina to be generally less credible than Diedra. This evidence would not cause a reasonable person to be seriously terrified, threatened, or intimidated….
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