A weird case from Arizona caught my eye this week. The Arizona Supreme Court concluded unanimously that making unflattering comments about someone to a third party constitutes criminal harassment under Arizona law. It seems like a reach to me.
Let's discuss the law first. The Arizona statute provides that "[a] person commits harassment" by "knowingly and repeatedly" contacting or communicating with "another person . . . in a manner that harasses." To "harass" means to engage in conduct "directed at" a specific person that "would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed" and that in fact causes such distress.
Now, the facts. In the fall of 2023, Briana Hernandez was employed by Phoenix Legacy Traditional School, where her daughter also attended. The daughter's teacher told Ms. Hernandez that the daughter was struggling with reading and needed to improve her grades. Ms. Hernandez, later mentioned this conversation to her ex-husband Luis Loarca and commented that their daughter needed a more experienced teacher. Later Mr. Loarca met with the daughter's teacher at a parent-teacher conference. Ms. Hernandez alleged in the complaint that during that discussion, Mr. Loarca misrepresented what she had told him, instead telling the teacher that Ms. Hernandez "despises" her and "did not think she was a good teacher." Ms. Hernandez learned of this encounter in a later meeting with the teacher, which the principal arranged so the two could smooth things over. According to the complaint the teacher was "extremely unhappy" and "quite uncomfortable" during the meeting. Ms. Hernandez explained to the teacher and the principal that Mr. Loarca had miscommunicated her comments, and that ended the matter.
In March 2024, the daughter transferred to Goodyear Legacy Traditional School, and Ms. Hernandez started working there as a paraprofessional. Soon after, the daughter came to Ms. Hernandez during school hours concerning a book report the daughter was working on. According to Ms. Hernandez, Mr. Loarca had switched the book at the last minute, leaving their daughter stressed about her ability to complete the assignment on time. Consequently, Ms. Hernandez helped her daughter by giving her notes on the book and "otherwise helping her finish the report." When Mr. Loarca found out, he took Ms. Hernandez's notes and other information she had given to their daughter and sent it to the school principal. In response, the principal provided Hernandez with a written warning for plagiarism, admonished Hernandez that she could not use "company time" to help her daughter, and told her that she should not visit her daughter during school hours.
If you are wondering when the harassment happened, you missed it. The alleged harassment consisted of Mr. Loarca's communications with the teacher and the principal. This begs several questions. First, are statements made to a third party "directed" at the subject of those comments? Loarca argued no, but the court disagreed. It pointed to Black's Law Dictionary for the definition of "direct." According to Black's to "direct" means to aim or point toward a person or thing. In its view, "this definition focuses on the target of the communication, not its immediate recipient. Accordingly, a communication may be 'directed at' a victim even if conveyed to a third party, so long as the victim is its intended target. 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."
The court continued, "[j]ust as making a false report to law enforcement or a credit or social service agency is designed to provoke adverse consequences against a victim without any explicit request for action, . . . so too can other communications made to third parties that target a victim. . . . 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."
I can see this argument as far as it goes, but I still have a hard time seeing how such conduct is criminal. There are plenty of civil remedies for the person allegedly "harassed." Here, Ms. Hernandez could potentially bring a defamation suit against Mr. Loarca. She could assert a claim for intentional infliction of emotional distress. She is not without options here. But is this a crime? Really?
I worry how other courts might expand on this ruling. And it seems that legitimate discussion could get caught up in it.
