No Protection
The Oklahoma Supreme Court reversed an order of protection brought against a “pastor” who engaged in anti-gay posts and activities
Penkoski is a public figure who holds himself out as a pastor, activist, and street preacher. Petitioners are also public figures; Morgan Lawrence-Hayes is President of Oklahomans for Equality and Sheena Hayes is Vice President of Oklahomans for Equality. Hayes is also the outreach committee chair for Petitioners’ church, Disciples Christian.
On September 9, 2022, Penkoski created a post on Facebook. See Pet’rs’ Ex. 2. The post said: “This is NOT a church!! This is a satanic recruitment center to groom and indoctrinate children while they pervert the Word of God[.]” Id. The post also contained two photographs, the first was a collaboration of photos of individuals with the overlying text “DISCIPLES CHRISTIAN CHURCH” in bold and below that in italics the text “Happy Pride Month[.]” Id. The photograph cuts off halfway through the second line of text. The second photograph depicts a group of adults and children holding what appears to be photos or pieces of art. No text indicated the identity of the individuals in either photo. Petitioners testified that they and their minor child were pictured in both of the photos. Tr. of Procs. 35:6–22, Feb. 15, 2023. The photographs were available on the church’s public page. Tr. of Procs. 57:14–16, 72:25–73:3.
The next day, on September 10, 2022, Penkoski attended the Bartlesville Pride Event in Bartlesville, Oklahoma. Penkoski allegedly stood on the street corner and yelled into a bullhorn for several hours, shouting slurs across the street toward the children’s bouncy house. Penkoski testified that he stayed where the police asked the protesters to assemble during the Pride Event. Penkoski had no direct interaction with Petitioners and Penkoski did not mention Petitioners’ names or Petitioners’ church by name.
On November 7, 2022, both Petitioners and Penkoski chose to attend and speak at the Bartlesville City Council meeting. At the meeting, Penkoski did not speak directly to the Petitioners, mention them by name, or have any direct interaction with them. No videos or photos of the city council meeting were submitted into evidence.
On November 11, 2022, Penkoski again posted on Facebook. See Pet’rs’ Ex. 4. This post consisted of the text “Liar, liar, pants on fire!!” and a video. Id. The thumbnail of the video in the post showed a woman standing at a lectern with a microphone. The woman had dark colored, long hair which covered most of her face making her virtually unrecognizable in the photo. No text in the post identified the woman in the video. Petitioners testified that the video showed Lawrence-Hayes speaking at the City Council meeting but did not submit a copy of the posted video into evidence. See Tr. of Procs. 16:14–16.
On November 12, 2022, Penkoski again posted on Facebook. See Pet’rs’ Ex. 5. This post had the text “Oklahomans for Eqaulity [sic] in Bartlesville OK caught lying about sexualizing children… See more” and a video. Id. The thumbnail of the video in the post was almost identical to the previous one, showing a woman standing at a lectern with a microphone, with her long, dark hair covering most of her face making her virtually unrecognizable from the photo. No text in the post identified the woman in the video other than that they were associated with Oklahomans for Equality. Petitioners testified that it was also an image of Lawrence-Hayes.
Court majority
The definition of stalking requires “willful, malicious, and repeated following or harassment of a person.” Section 60.1(10), both prior to November 1, 2022, and as amended effective November 1, 2022, gives a list of examples of uninvited contact or course of conduct which would be considered stalking. Every example concerns contact or conduct toward an “individual.” Penkoski’s actions were not directed toward an individual person, but rather were public Facebook posts that named two organizations, not individuals. Penkoski spoke neither of Petitioners’ names at the parade or the city council meeting. Penkoski did not send electronic communications to Petitioners, or contact them directly by any means, including directing a message, comment, or other content toward them. Penkoski did not photograph, videotape, or otherwise record Petitioners’ activities. Penkoski created Facebook posts that included photos or videos he obtained from other sources which, while they depicted one or both of Petitioners, did not name either Petitioner or direct his message toward either Petitioner. The district court’s decision was clearly against the evidence, and based on the court’s mistaken finding that Penkoski “made specific references to [Petitioners] personally and their family personally” and that he targeted his posts to specific people and “called them out by name.” The district court abused its discretion when it found that Penkoski directed his posts or comments toward the Petitioners.
We need not address all of Penkoski’s or Petitioners’ arguments, including Penkoski’s First Amendment arguments, because regardless of protected speech status, the district court abused its discretion in issuing the order of protection.
The majority correctly points out that Penkoski’s conduct, as a matter of law, did not constitute harassment. However, the record in this case contained sufficient evidence to support the decision of the trial court finding Richard Penkoski engaged in behavior which met the statutory definition of “stalking,” as codified in the Protection from Domestic Abuse Act, 22 O.S. 2022, § 60.1(9).
Although some of Penkoski’s commentary appeared to be directed toward Oklahomans for Equality, in truth, his oppressive and intimidating conduct was directed toward Morgan Lawrence-Hayes and Sheena Hayes (Appellees) as individuals. It is important to note that the trial court only considered issuing a protective order to the Appellees as individuals; the judge did not consider an order on behalf of the organization or community at-large. Judge Thomas specifically explained, “I only have the jurisdiction at this point to deal with whatever individual harm you might be referring to.” As such, I respectfully dissent from that portion of the majority opinion which concludes the evidence did not establish stalking of the Appellees in their individual capacities.
Evidence of stalking
Penkoski’s social media posts and intimidation tactics were not isolated incidents; rather they were an ongoing “course of conduct” designed to intimidate/harass Appellees and potentially incite violence toward the couple. He even testified that the Appellees, as parties to a same-sex relationship, were “worthy of death,” according to his interpretation of the Bible. Considering the testimony and exhibits, it is clear Penkoski’s actions were directed toward Appellees as individuals. In addition, the record supports the trial court’s legal determination that Penkoski’s repeated bullying (both in person and via social media) and incendiary rhetoric toward Appellees satisfied the definition of stalking. Because the trial judge did not abuse her discretion, I would affirm the finding that Penkoski engaged in stalking of Appellees.
(Mike Frisch)