TALLAHASSEE --- A federal appeals court on Wednesday appeared skeptical of prominent National Rifle Association lobbyist Marion Hammer’s arguments in a lawsuit stemming from graphic emails she received following the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland.
U.S. District Judge Robert Hinkle in November 2018 dismissed Hammer’s claims against California attorney Lawrence Sorensen, who sent two emails to Hammer that included photos showing injuries from gunshot wounds. The judge’s ruling came four months after Hammer filed a lawsuit against Sorensen and three other unrelated men because of emails she received. Hinkle’s dismissal was limited to Sorensen.
Hinkle acknowledged that Sorensen sending the emails “unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting.” But the judge said Sorensen’s messages were protected by the First Amendment and that Hammer was not entitled to damages.
Hammer appealed Hinkle’s ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals. During arguments Wednesday, Hammer’s lawyer, Kenneth Turkel, told a three-judge panel that Hinkle erred in finding that the messages were protected speech.
Chief Judge William Pryor, however, immediately brushed aside Turkel’s First Amendment arguments, saying the panel did not need to consider that issue because Hinkle found Hammer’s claims were “not tortious.”
“You could think that something is disgusting and not something that polite people in civilized society do, and it not necessarily meet the standard of being beyond the pale of decency to support a claim for intentional infliction of emotional distress,” said Pryor, who was joined on the panel by Judges Robin Rosenbaum and Michael Moore.
But Turkel argued that a series of previous court decisions have established that “you have a right to be let alone.”
“The concept of someone being captive in their home, messages being forced to them in a way that they have no choice but to hear them over and over again, has been …,” he said, before being interrupted by Rosenbaum.
The judge pointed out that Sorensen sent the messages to Hammer’s work email address that’s publicly available.
“The fact that she happened to open it inside her house does not make it an intrusion of her house,” Rosenbaum said.
But Turkel disagreed.
“This was not public speech in a public place with numerous people engaged in some vigorous debate,” he said. “This was one private actor sending another private person gory pictures of mutilated bodies with no discussion about public issues.”
But Rosenbaum persisted, pointing out that Hammer “describes herself as the most well-known lobbyist on behalf of the NRA.”
Sorensen’s emails included graphic photos of gunshot victims, including one of President John F. Kennedy.
Rosenbaum noted that Sorensen’s first email said, “Thought you should see a few photos of handiwork of the assault rifles you support.”
The California lawyer is “saying specifically that he’s addressing what she is lobbying,” the judge said.
“We have a right to be free from unwanted communication,” Turkel insisted.
Gun-control activists targeted Hammer following the Broward County school massacre in which 14 students and three faculty members were killed. Nikolas Cruz was captured on video using a semi-automatic weapon during the attack and is awaiting trial on murder charges.
As Florida lawmakers considered legislation in the aftermath of the school shooting, Hammer lobbied against measures that would restrict gun owners’ rights.
Hammer, an 81-year-old great-grandmother who for decades has been considered one of the state Capitol’s most influential lobbyists, alleged in the lawsuit that the messages caused emotional distress, humiliation, shame and embarrassment and caused her to live in fear.
The lawsuit, which sought unspecified damages, said Hammer was taking legal action to “put a stop to the assault upon her personal life and constitutional rights, to end her harassment and the threats of violence and personal attacks she is enduring, and to confirm that such misconduct will not be tolerated or allowed to continue.”
While Hinkle agreed the emails were disgusting, that did not make the messages “criminal or even tortious,” the district judge wrote.
“Tolerating incivility, at least to some extent, is a price a nation pays for freedom,” Hinkle added. “Accordingly, not all inappropriate, disgusting speech is tortious, and not all otherwise tortious-speech can be banned consistently with the First Amendment.”
Sorensen’s lawyer, Thomas Findley, told the three-judge panel Wednesday that Florida has “an incredibly high standard for the tort of intentional infliction of emotional distress.”
“The standard is that the conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency,” Findley told the panel. “The level of outrageousness can’t be met by this communication with the lobbyist.”
The two emails were sent within 30 minutes of each other following the Parkland shootings, and Sorensen, who works as an arbitrator and mediator, identified himself with his name and address, Findley pointed out.
The “pictures are gruesome,” the lawyer conceded, “but sometimes that’s what some people think is useful to convey their point.”
