“Making Negative Statements” About People to Their Employers = Criminal Harassment

Arizona criminal harassment law provides, in relevant part:

A person commits harassment [a class 1 misdemeanor] if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly … [c]ontacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means….

“[H]arass” means conduct [excluding] a {lawful demonstration, assembly or picketing} [1] that is directed at a specific person and [2] that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and [3] the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person.

This pretty clearly covers certain kinds of unwanted communications to a person (e.g., repeated unwanted seriously annoying phone calls). But does it also cover communications about a person? The statute does specifically cover one such communication: making “a false report to a law enforcement, credit or social service agency against another person.” But what about true statements, or expressions of opinion, about someone that are reasonably seriously upsetting—e.g., complaints to employers, which might put the target’s job in jeopardy (surely something that would seriously alarm, annoy, humiliate, or mentally distress people)?

Monday’s unanimous Arizona Supreme Court decision by Chief Justice Timmer in Hernandez v. Loarca says the law does cover such speech about people:

Briana Hernandez and Luis Loarca had a past romantic relationship that resulted in the birth of their daughter …, who was ten years old at the time of the events at issue…. Hernandez obtained an order of protection against Loarca based on allegations that he engaged in domestic violence by harassing her at Daughter’s school, where Hernandez was also employed. See A.R.S. § 13-3601(A)(2) (including harassment by one parent against the other as an act of domestic violence). Specifically, she alleged that Loarca harassed her by making negative statements concerning her to Daughter’s teacher and the school principal….

We conclude that communications may be “directed at” a victim even when conveyed to a third party when they are designed to provoke an adverse consequence against the victim…. If such communications are designed to provoke an adverse consequence for the victim that would seriously alarm, annoy, humiliate, or mentally distress a reasonable person in the victim’s position, and in fact do so, they constitute harassment. In short, § 13-2921(E) regulates conduct based on its target, not its transmission path.

Our interpretation is reinforced by subsection (A)(1), which provides that a person can “harass” by “caus[ing] a communication with another person,” not only with the victim. By not limiting the communication’s recipient to the victim, subsection (A)(1) illustrates that communications may be directed at a victim through intermediaries….

The court also refused to limit the statute “to cases involving express solicitations” of “adverse consequences,” and in the process suggested that it could be a crime to accuse someone of having an affair—and though the court mentions false accusations, the statute would cover true accusations as much as false ones:

We see no principled basis for concluding, for example, that a person’s false statement to a wife that her husband is having an affair is not “directed at” the husband, but becomes so only if the speaker adds that the wife should act against him. In both instances, the communication is designed to provoke an adverse consequence against the husband.

The court concluded that not all criticisms would count:

Importantly, not all communications to third parties that reveal unflattering information about another person are “directed at” that person. In LaFaro v. Cahill (Ariz. App. 2002), for example, the court of appeals considered whether a defendant’s statements describing the plaintiff as a “bigot,” “fascist,” and “homophobe,” made to a third party but within the plaintiff’s earshot, were “directed at” the plaintiff for purposes of Arizona’s civil harassment statute, A.R.S. § 12-1809(T)(1)(a), which closely parallels § 13-2921(E)…. [T]he defendant’s comments in LaFaro were not intended to provoke adverse consequences for the plaintiff, even if they may have diminished the third party’s opinion of the plaintiff.

But of course a great deal of criticism (including calling people bigots, fascists, and homophobes) may indeed be “intended to provoke adverse consequences.”

The court acknowledged that this makes the harassment statute quite broad, and might raise First Amendment problems:

[Section] 13-2921(E) is broadly written, and courts may struggle with applying it in some situations. Unlike its civil counterpart, § 13-2921(E) does not exclude from the definition of harassing behavior conduct or communications made for legitimate purposes…. The Legislature … may wish to consider whether complaints made for legitimate purposes, even though designed to provoke an adverse consequence against another person, should nevertheless fall within the statute’s reach. A broad application of this statute may also implicate the free-speech protections of our state and federal Constitutions, but that issue is not currently before us….

For more on this general question, see my One-to-One Speech vs. One-to-Many Speech (2013) and my Overbroad Injunctions Against Speech (2022). Here are more factual details from the case:

In the fall of 2023, Hernandez was employed as a paraprofessional by Phoenix Legacy Traditional School, which Daughter also attended. Daughter’s teacher told Hernandez that Daughter was struggling with reading and needed to improve her grades. According to Hernandez, she later mentioned this conversation to Loarca and commented that perhaps Daughter needed a more experienced teacher.

Thereafter, Loarca met with Daughter’s teacher at a parent-teacher conference. Hernandez alleges that during that discussion, Loarca misrepresented what she had told him, instead telling the teacher that Hernandez “despises” her and “did not think she was a good teacher.” Hernandez learned of this encounter in a later meeting with the teacher, which the principal arranged so the two could smooth things over. The teacher was “extremely unhappy” and “quite uncomfortable” during the meeting. Hernandez explained to the teacher and the principal that Loarca had miscommunicated her comments, and that ended the matter.

In March 2024, Daughter transferred to Goodyear Legacy Traditional School, and Hernandez started working there as a paraprofessional. Soon after, Daughter came to Hernandez during school hours concerning a book report Daughter was working on. According to Hernandez, Loarca had switched the book at the last minute, leaving Daughter stressed about her ability to complete the assignment on time. Consequently, Hernandez helped Daughter by giving her notes on the book and “otherwise helping her finish the report.”

Loarca found out. Rather than discussing the matter with Hernandez, he took Hernandez’s notes and other information she had given to Daughter and sent it to the school principal, who supervised Hernandez. As a consequence, the principal provided Hernandez with a written warning for plagiarism, admonished Hernandez that she could not use “company time” to help Daughter, and told her that she should not visit Daughter during school hours….

[T]he [trial] court found that Loarca’s handling of the matters did not reflect concern for Daughter or protection of his role as final decision maker in educational matters but were instead calculated to inflict harm on Hernandez by causing trouble for her at work…. [The Arizona Supreme Court agreed:] Loarca’s statement to the teacher that Hernandez despised her and considered her incompetent supports the conclusion that he targeted Hernandez to provoke an adverse consequence in her workplace. Nothing about those comments furthered Daughter’s educational interests and thus appeared intended to undermine the parties’ professional relationship. Indeed, the principal convened a meeting to address the resulting conflict….

Loarca’s report to the principal that Hernandez improperly assisted Daughter with the book report likewise supports the inference that he sought to create problems for Hernandez with her supervisor. He made no effort to resolve the issue with Hernandez or Daughter’s teacher before going directly to the principal. As the trial court found, Loarca effectively accused a staff member of dishonesty and plagiarism, making it likely that the principal would take adverse action against Hernandez….

Emily S. Morgan, William H. Doyle, Brandon D. Millam, and Doyle Hernandez Millam represent Hernandez.