Vinson v. Clark

1

ISABEL VINSON, Plaintiff, v. CHARITY CLARK, in her official capacity as Attorney General for the State of Vermont, and TRACY KELLY SHRIVER, in her official capacity as State's Attorney for Windham County, Defendants.^[1]

No. 2:22-cv-00020

United States District Court, D. Vermont

September 6, 2024

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOCS. 52 & 54)

Christina Reiss, Chief Judge.

Plaintiff Isabel Vinson, brings this action under 42 U.S.C. § 1983 against Defendants Charity Clark, in her official capacity as Attorney General for the State of Vermont, and Tracy Kelly Shriver, in her official capacity as State's Attorney for Windham County, (collectively, “Defendants”) arising out of her citation for violating 13 V.S.A. § 1027 after she criticized a local business owner on social media. She facially challenges 13 V.S.A. § 1027, arguing it is overbroad in violation of the First Amendment right to freedom of speech (Count I) and void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment (Count II). She seeks a declaratory judgment that 13 V.S.A. § 1027 violates the First and Fourteenth Amendments and a permanent injunction enjoining Defendants from enforcing 13 V.S.A. § 1027. She also requests attorney's fees and costs pursuant to 42 U.S.C. § 1988(b).

, On October 16, 2023, Plaintiff and Defendants filed cross motions for summary judgment. (Docs. 52 & 54.) The parties filed their respective responses in opposition on November 15, 2023, (Docs. 55 & 56), and Plaintiff filed her reply in support of her motion on December 13, 2023. (Doc. 61.) Oral argument was scheduled for May 17, 2024 however, the hearing was canceled on May 10, 2024, at which point the court took the pending motions under advisement.

Plaintiff is represented by Harrison M. Stark, Esq., James M. Diaz, Esq., Justin B. Barnard, Esq., Lia N. Ernst, Esq., and Noah A. Greenstein, Esq. Defendants are represented by David R. Groff, Esq.

I. Undisputed Facts.

A. Enforcement of 13 V.S.A. § 1027.

13 V.S.A. § 1027 provides:

(a) A person who, with intent to terrify, intimidate, threaten, harass, or annoy, makes contact by means of a telephonic or other electronic communication with another and makes any request, suggestion, or proposal that is obscene, lewd, lascivious, or indecent; threatens to inflict injury or physical harm to the person or property of any person; or disturbs, or attempts to disturb, by repeated telephone calls or other electronic communications, whether or not conversation ensues, the peace, quiet, or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months, or both. If the defendant has previously been convicted of a violation of this section or of an offense under the laws of another state or of the United States that would have been an offense under this section if committed in this State, the defendant shall be fined not more than $500.00 or imprisoned for not more than six months, or both.

(b) An intent to terrify, threaten, harass, or annoy may be inferred by the trier of fact from the use of obscene, lewd, lascivious, or indecent language or the making of a threat or statement or repeated telephone calls or other electronic communications as set forth in this section and any trial court may in its discretion include a statement to this effect in its jury charge.

(c) An offense committed by use of a telephone or other electronic communication device as set forth in this section shall be considered to have been committed at either the place where the telephone call or calls originated or at the place where the communication or communications or calls were received.

The Vermont Attorney General, Windham County State's Attorney, and Brattleboro Police Department do not have formal policies regarding the enforcement of 13 V.S.A. § 1027; however, during a September 2022 training course, the Windham County State's Attorney told law enforcement that annoying conduct cannot be prosecuted under 13 V.S.A. § 1027. The Vermont Criminal Justice Council, which is responsible for training Vermont law enforcement agencies, does not provide formal training on enforcing 13 V.S.A. § 1027.

Between 2013 and 2023, there were an average of sixty-nine arraignments and twenty-nine convictions per year for charges of violating 13 V.S.A. § 1027. In the same period, there were an average of 724 arraignments and 459 convictions per year for charges of violating 13 V.S.A. § 1026, Vermont's disorderly conduct statute. On at least forty-seven occasions between 2013 and 2023, individuals were charged under 13 V.S.A. § 1027 for harassing or threatening a family member or romantic partner. In that same time frame, individuals were charged under 13 V.S.A. § 1027 for improperly calling 911 or police dispatch on at least ten occasions.

B. Plaintiffs Citation for Violating 13 V.S.A. § 1027.

Plaintiff is a resident of Brattleboro, Vermont, who “strongly believes that racism, bigotry, and discrimination of any kind are not welcome” in Vermont. (Doc. 54-1 at 2, ¶ 6.) Since at least 2016, she has actively used Twitter, Instagram, and Facebook to express her political opinions, engage in political debate, and criticize politicians and others for behavior she believed mistreated women or was “fascist, racist, or otherwise unacceptable.” Id. at ¶ 7.

Christian and Christine Antoniello (the “Antoniellos”) own the Harmony Underground, a Brattleboro business. On or about June 1, 2020, Mr. Antoniello posted on his personal Facebook page regarding the Black Lives Matter movement. He posted, in part: “How about all lives matter. Not black lives, not white lives. Get over yourself no one's life is more important than the next. Put your race card away and grow up.” Id. at 3, ¶ 12 (internal quotation marks omitted). Several people commented on Mr. Antoniello's post to criticize his statement, including one person who stated she planned to boycott the Harmony Underground until Mr. Antoniello publicly apologized.

On June 6, 2020, at approximately 7:00 p.m., Plaintiff shared images of Mr. Antoniello's posts on her personal Facebook page and wrote:

I'm so disappointed in what I just came across while mindlessly scrolling through Facebook, a business owner in the town I live in acting this way? Someone I once looked up to[]? Spewing hate rhetoric and then be[ing] unswayed as to why what he was saying was wrong?

The reason the Black Lives Matter[] movement is important is because [people of color] are systematically murdered by the police at an alarming rate. If you can't get behind the movement, step aside, but don't go on an all lives matter tirade for attention. Thanks for coming to my Ted talk.

If you are still confused, just look at the screenshots I've attached I guess.

(Doc. 54-7 at 22.)

A few minutes later, Plaintiff posted the images of Mr. Antoniello's posts again on her Facebook page, tagged the Harmony Underground's Facebook page, and wrote: “Disgusting. The owner of the Harmony Underground here in Brattleboro thinks this is okay and no matter how many people try and tell him it's wrong he doesn't seem to care[.]” Id. at 11. Plaintiffs post received over fifty comments from more than ten people. One comment asserted that Mr. Antoniello inflated the price of an item at the Harmony Underground, and Plaintiff replied, “I feel like everyone should leave a review on his page so he can never forget to be honestf.]” Id. at 16. A different person commented, “That guy is a pedophile and needs his ass beaten. He[']s a snitch. He had the cops in his shop all the time. I have a[ ]lot more to say. If [y]ou wanna know [private message] me[.]” Id. at 24. Finding this comment to be “unrelated” to her original post and “[a] little conceming[,]” Plaintiff deleted this comment shortly after it was made. (Doc. 54-3 at 80-83.)

In the comments on her post, Plaintiff also tagged a Facebook group called “Exposing Every Racist,” which is a group where “people post screenshots of others being racist,” but Plaintiff asserts that the group's rules encourage members “not to . harass other people.” (Doc. 54-1 at 4, ¶ 21) (alterations adopted) (internal quotation marks omitted). She also posted images of Mr. Antoniello's Facebook posts on Exposing Every Racist's page. Exposing Every Racist is not based in Vermont. With her posts, Plaintiff intended to convey that “racism is gross” and was not attempting to threaten or intimidate the Antoniellos. (Doc. 54-3 at 68.)

On or about June 27, 2020, the Antoniellos contacted the Brattleboro Police Department to report that they were being harassed on Facebook because of Plaintiff s posts. Officer Tyler Law of the Brattleboro Police Department (“Officer Law”) interviewed the Antoniellos for approximately thirty minutes on June 30, 2020. At that interview, the Antoniellos stated that they feared for their safety because Plaintiff tagged Exposing Every Racist, which they viewed as a “dangerous” group where “they put your name out there so people can come and find you and hurt you.” (Doc. 54-1 at 5, ¶ 27) (internal quotation marks omitted). When Officer Law suggested the Antoniellos contact Facebook to address their concerns, Mr. Antoniello stated he “used every option” to remove the posts and he was “depending on the police department to do something to at least make a phone call and say ‘you're causing a lot of problems.'” Id. at 6, ¶ 28 (internal quotation marks omitted). Officer Law told the Antoniellos he could charge Plaintiff with “disorderly conduct by electronic means.” Id. at ¶ 29 (internal quotation marks omitted).

On ...