TALLAHASSEE --- A federal appeals court Tuesday rejected arguments by prominent National Rifle Association lobbyist Marion Hammer in a lawsuit centered on graphic emails she received from a California attorney after the 2018 mass shooting at Marjory Stoneman Douglas High School in Broward County.
A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a district judge鈥檚 decision to dismiss Hammer鈥檚 lawsuit against attorney Lawrence Sorensen, who sent two emails to the lobbyist that included photos of gunshot wounds. Hammer raised a series of arguments in the case, including that Sorensen had violated Florida laws about cyberstalking, harassment and intentional infliction of emotional distress.
The appeals court, in a , said Hammer鈥檚 lawsuit did not allege 鈥渆nough facts鈥� to show that the laws were violated. As an example, the court said proving cyberstalking requires showing that the disputed communications served 鈥渘o legitimate purpose.鈥�
The court said Sorensen鈥檚 emails, which were 鈥渃learly intended to dissuade Hammer from continuing to support the availability of assault rifles,鈥� had a legitimate purpose.
鈥淣o doubt the embedded photographs substantially turned up the volume on Sorensen鈥檚 message, but they did not negate his communications鈥� 鈥榣egitimate purpose,鈥� as Florida law broadly construes that term, of trying to persuade Hammer that she should not continue to support the availability of assault rifles,鈥� said the ruling by Chief Judge William Pryor and Judges Robin Rosenbaum and K. Michael Moore. 鈥淏ecause Hammer cannot show that Sorensen鈥檚 emails served 鈥榥o legitimate purpose,鈥� she cannot prevail on her cyberstalking claim. This is true even if Hammer was startled, distressed, or disturbed by the receipt of Sorensen鈥檚 emails.鈥�
Similarly, in rejecting Hammer鈥檚 arguments about intentional infliction of emotional distress, the court pointed to part of state law that required her to show Sorensen鈥檚 conduct was 鈥渙utrageous in that it is beyond all bounds of decency and utterly intolerable in a civilized community.鈥�
鈥淭here is no doubt that the photographs are disturbing: they vividly show gruesome wounds,鈥� the ruling said. 鈥淏ut we cannot say that they are 鈥榖eyond all bounds of decency and utterly intolerable in a civilized community,鈥� particularly when considered in context. Images that are at least as graphic, if not ghastly, appear in many publicly released movies and sometimes appear in news footage, albeit with warnings. And here, Sorensen presented the images as part of his attempt to engage with Hammer in a debate on the damage that assault weapons can inflict on human beings. Debates on matters that are the subject of lobbying efforts are an aspect of living in a 鈥榗ivilized community.鈥� So whatever else may be said of the images Sorensen included in his emails, we cannot say they were 鈥榦utrageous.鈥欌��
Hammer, a former national president of the NRA and a longtime influential lobbyist in Tallahassee, went to the Atlanta-based appeals court after U.S. District Judge Robert Hinkle in November 2018 dismissed her claims against Sorensen. Hinkle鈥檚 ruling came after Hammer filed a lawsuit against Sorensen and three other unrelated men because of emails she received. Hinkle鈥檚 dismissal was limited to Sorensen.
In his ruling, Hinkle acknowledged that Sorensen sending the emails 鈥渦nsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting.鈥� But the judge said Sorensen鈥檚 messages were protected by the First Amendment and that Hammer was not entitled to damages.
During arguments last month at the appeals court, Hammer鈥檚 lawyer, Kenneth Turkel, said Hinkle erred in finding that the messages were protected speech. He also argued that a series of previous court decisions have established that 鈥測ou have a right to be let alone.鈥�
鈥淭his was not public speech in a public place with numerous people engaged in some vigorous debate,鈥� he said. 鈥淭his was one private actor sending another private person gory pictures of mutilated bodies with no discussion about public issues.鈥�
The appeals court focused on whether Hammer鈥檚 lawsuit could show violations of state laws and didn鈥檛 rule based on First Amendment issues. It also said her allegations didn鈥檛 meet the legal test to be considered an invasion of privacy.
鈥淭he facts Hammer avers do not establish that Sorensen intruded physically into a 鈥榩lace鈥� or 鈥榩rivate quarter鈥� of Hammer鈥檚 where Hammer had a reasonable expectation of privacy, since Sorensen merely sent his two emails to the email address Hammer publicly lists in association with her lobbying activities for the NRA,鈥� the ruling said. 鈥淭o be clear, Hammer needed to plausibly allege an intentional intrusion into some private quarter. But Sorensen emailed the address Hammer publicly listed on the website for the Florida Association of Professional Lobbyists. And Hammer alleged no reason for Sorensen to have expected that this professional email address would have been associated with private quarters.鈥�
