550 P.3d 931
Okla.2024Background
- Hayes and Lawrence-Hayes, LGBTQ+ activists and public figures, obtained a protective order against Penkoski, a pastor and activist, citing harassing social media posts and public protests.
- Penkoski made several public Facebook posts criticizing the petitioners’ church and LGBTQ+ activities, using photos from public sources, but not naming the petitioners individually.
- At public events (Pride event, city council meeting) Penkoski protested and shouted slurs, but did not directly mention or engage petitioners.
- District court granted a five-year protective order prohibiting Penkoski from referencing, posting about, or approaching the petitioners or their child.
- Penkoski appealed, claiming his actions were protected speech targeting organizations, not individuals, and did not meet statutory definitions of harassment or stalking.
- The Oklahoma Supreme Court sua sponte retained the appeal and reversed the district court’s protective order.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Harassment under the statute | Penkoski's conduct was knowingly willful and seriously alarming | No family/dating connection; no individual harassment | No harassment—statute requires family/dating relationship |
| Stalking under the statute | Penkoski's actions constituted unconsented, threatening conduct | Conduct targeted organizations, not individuals; no direct contact | No stalking—actions not directed toward specific individuals |
| Use of social media as contact | Social posts effectively targeted and harmed petitioners | Never communicated with or directly mentioned petitioners | Posts did not target individuals as required by statute |
| First Amendment/free speech | Conduct is true threat excluded from protection | Posts are protected speech on public issues | Did not reach this issue—ruling rested on statutory grounds |
Key Cases Cited
- Curry v. Streater, 213 P.3d 550 (Okla. 2009) (standard for reviewing protective orders—abuse of discretion)
- Thurston v. State Farm Mut. Auto. Ins. Co., 478 P.3d 415 (Okla. 2020) (de novo review for statutory interpretation)