Judicial Reform

Ryan Haynie | June 14, 2024

Oklahoma Supreme Court gets it right, still blunders

Ryan Haynie

Early this week, the Oklahoma Supreme Court issued an opinion in Hayes v. Penkoski in which the Court vacated a protective order against Richard Penkoski, a street preacher from Elk City, Oklahoma. For context, below are the facts that led to the Petitioners seeking a protective order against Penkoski (mostly pulled from the Court’s majority opinion):

  • Penkoski is a pastor, activist, and street preacher. The Petitioners were officers of Oklahomans for Equality (a pro-“2SLGBTQIA+” group) and members of Disciples Christian Church (a “church” in Bartlesville that values “diversity in culture, ethnicity, sexual orientation, gender identity and expression, ability, age, and theology”).
  • In September 2022, Penkoski published a post on Facebook criticizing Disciples Christian Church, including a photo from the church’s website that included the Petitioners and their minor child.
  • The next day, Penkoski attended a Bartlesville gay pride event where he yelled into a bullhorn for several hours but did not mention Petitioners or their church by name or interact with the Petitioners.
  • A few months later Penkoski and Petitioners attended the same Bartlesville City Council meeting, though Penkoski didn’t speak to Petitioners or mention them by name.  
  • From there, Penkoski posted several times on his Facebook page, including a video of one of the Petitioners testifying at the city council meeting, quotations from the Bible, and other commentary regarding Oklahomans for Equality.

Petitioners asked the Washington County Court for a protective order claiming Penkoski’s behavior “targeted” their family with threats on social media. Despite Petitioners claiming they had “never been in contact with Mr. Penkoski,” the District Court granted the protective order and ordered Penkoski to, among other things, refrain from posting any “pictures, images, or any likeness of the Petitioners or their minor child on any social media; making reference to, mentioning, printing, or otherwise publishing their names on social media.”

Fortunately, in a 5-4 decision, the Oklahoma Supreme Court vacated that order, thus protecting Penkoski’s rights under the First Amendment. 

Unfortunately, four dissenting justices would have upheld the protective order, thus infringing on Penkoski’s right to free speech. In their opinion, Penkoski’s actions “satisfied the statutory definition of stalking.” The crazy thing is that the dissenting justices may be correct. It may have risen to the statutory definition of stalking. But that is because the statutory definition of stalking is overbroad. 

According to Oklahoma law, “stalking” is defined broadly. Essentially, it includes behavior in which someone engages in “unconsented contact with a person that is initiated or continued without the consent of the individual …” The statute further goes on to define “unconsented contact” to include “sending any physical or electronic material or contacting the individual by any means, including any message, comment, or other content posted on any Internet site or web application.” 

This is problematic, and the legislature needs to fix it. A post on a social media site is, fundamentally, a communication to the world—not to a single individual. Penkoski posted on his personal Facebook page, which was viewable to any number of people other than Petitioners. Just because Petitioners found it objectionable, that doesn’t mean there weren’t hundreds (or more) of willing listeners to what Penkoski had to say. 

As Professor Eugene Volokh has pointed out, “when … stalking and harassment laws have been upheld, this has almost invariably been in on-to-one speech cases and with arguments that made sense because of the one-to-one nature of speech.” Rather than accepting the standard set by an unconstitutional statute, the dissenters should have noted that, even had Penkoski satisfied the statutory definition of stalking, the protective order was nevertheless void for infringing on his rights under the First Amendment.

While the majority made the right decision in vacating the protective order, it fared no better in its analysis of speech on the internet. Where the dissent can blame its analysis on bad legislation, the majority can be forgiven for adopting a faulty argument made by Penkoski’s legal counsel. Penkoski’s lawyer argued his speech was not directed at Petitioners, but rather at an organization—in this case, Oklahomans for Equality. This argument, though faulty, won the day for Penkoski.

When the government (whether the judicial or legislative branch) seeks to suppress one-to-many speech—such as social media posts—it prohibits not only the offended individual but also other willing listeners from hearing what the speaker has to say. Volokh argues “[o]nce we get outside the First Amendment exceptions [incitement, true threats, etc.], harassment laws that cover one-to-many speech should not be considered constitutional.” 

Penkoski’s social media posts and advocacy at the gay pride event were quintessential one-to-many speech. Whether the speech concerned the Petitioners, Oklahomans for Equality, or Disciples Christian Church is immaterial. They may have found Penkoski’s speech vulgar (the dissent certainly did), annoying, or even harassing. It doesn't matter. The First Amendment means nothing if it doesn't protect the right to be offensive—because we all have different opinions about what is offensive.

This decision, while not perfect, is good news for those who speak their mind—especially online. As this case was making its way through Oklahoma courts, Chad Richison and Paycom continued to engage in their own anti-free-speech crusade against OCPA with the help of the law firm McAfee & Taft. While Paycom’s lawsuit has already been dismissed twice—once on First Amendment grounds—technicalities have allowed it to continue its lawfare against OCPA. This latest opinion surely spells disaster for Richison and Paycom in the near future.

Ryan Haynie Criminal Justice Reform Fellow

Ryan Haynie

Criminal Justice Reform Fellow

Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.

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