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Former phone sex operator loses summary judgment in National Guard case

March 30, 2018

A former phone sex operator who was terminated from an AmeriCorps program has lost her bid for partial summary judgment based on an alleged First Amendment violation. A district judge found government representatives did not violate her rights by terminating her after they discovered she wrote a book about explicit conversations she had with callers.

One month prior to being placed with the Indiana National Guard as part of AmeriCorps’ Volunteers in Service to America program, Amy Harnishfeger posted on her personal Facebook page about the self-publication of her book, “Conversations with Monsters.” The book detailed five conversations Harnishfeger had with phone sex callers who expressed violent sexual desires, some involving children. Harnishfeger published the book under a pseudonym, A.M. Raddatz, and included commentary discussing whether phone sex operators like herself facilitated or prevented sexual assault.

When Harnishfeger’s direct supervisor at the National Guard, Noelle Butler, became her Facebook friend and discovered the publication of the book, Butler reported it to Col. Lisa Kopczynski, the State Family Programs director for the Indiana National Guard. Kopczynski informed Harnishfeger that the book reflected poorly on the National Guard and its Domestic Violence Prevention and Response Plan, which Harnishfeger facilitated through data entry tasks.

Representatives from the Corporation for National and Community Service — which placed Harnishfeger in the VISTA program — then sent Harnishfeger a list of 23 alternative VISTA-sponsored organizations where she could be re-assigned. Harnishfeger contacted five of those organizations, but when she could not find a suitable assignment, her VISTA volunteer status was terminated.

Harnishfeger sued the United States under the Administrative Procedures Act and the AmeriCorps and National Guard representatives in their individual capacities, alleging they violated her First Amendment rights by removing her from the National Guard and VISTA program in retaliation for her book. She maintained her book addressed topics of public importance, and her right to free speech outweighed the government interest in efficiently providing public services. The defendants moved for summary judgment, and Harnishfeger filed a cross-motion for summary judgment.

Indiana Southern District Judge Tanya Walton Pratt ultimately ruled in favor of the defendants, writing in a Thursday order that “Conversations with Monsters” did not address a matter of public concern. Though Harnishfeger maintained her book addressed sexual assault, Pratt determined most of the book merely recited the conversations she had with five callers. Though Harnishfeger did include some personal commentary relating to the role phone sex operators play in sexual assault, Pratt determined such commentary did not provide meaningful advice.

“Harnishfeger’s commentary merely provides context for the conversations and expresses her personal feelings about the conversations, neither or which rise to the level of legitimate newsworthiness,” Pratt wrote. “Although Harnishfeger attempts to present her motivations for writing the book and thought-provoking questions about the functions such phone sex conversations may serve, this alone does not suggest that ‘Conversations with Monsters’ as a whole addresses any topic of general interest or debate.”

Even if Harnishfeger’s book did address a matter of public concern, Pratt determined the defendants’ interest in preventing workplace disruption outweighed her free speech interests. Considering the National Guard’s Family Program was designed to serve victims of domestic and sexual assault, Pratt said the defendants reasonably determined the content of “Conversations with Monsters” could negatively affect the program’s work. Further, the defendants also reasonably believed Harnishfeger’s authorship of the book could become more publicized because of her Facebook post, the judge said.

Thus, none of the defendants violated Harnishfeger’s First Amendment rights, Pratt said, meaning she could not pursue action against them. Pratt also determined the U.S. government could not be held liable under the APA because Harnishfeger failed to prove she was terminated for any reason other than her inability to find a suitable reassignment.

The case is Amy Harnishfeger v. United States of America, et al., 1:16-cv-03035.

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