Phone sex operator wins partial victory on appeal

A former phone sex operator who sued the government after she was allegedly fired from a National Guard volunteer position has won partial victory at the 7th Circuit Court of Appeals, which found that a book the woman wrote about her phone sex conversations was “clearly protected speech.”

According to the 7th Circuit’s Tuesday opinion in Amy Harnishfeger v. United States of America, et al., 18-1865, Harnishfeger became a phone sex operator during a stint of unemployment.

“She decided to try phone-sex work, but quickly discovered it was not the ‘flirty fun’ the phone-sex industry held it out to be,” Judge David Hamilton wrote for the court. “Harnishfeger was horrified to hear what some of the callers would fantasize about, including sexual abuse of children.

Harnishfeger shared her experiences via “Conversations with a Monster,” a book she wrote that detailed five of her most “horrifying” calls. The book also opined on the social role of phone sex operators and their part in facilitating or preventing sexual assault.

Harnishfeger published the book under a pseudonym, though she announced on her private Facebook page that she had written it.

Shortly after the book was released, Harnishfeger was selected for the Volunteers in Service to America, or VISTA, program, an AmeriCorps program run by the Corporation for National and Community Service. Harnishfeger was placed with the Indiana Army National Guard, where she maintained a database for the Family Program Office.

But when Harnishfeger’s supervisor, Noelle Butler, became her Facebook friend, Butler discovered the post about “Conversations with Monsters.” Butler and another guard employer bought the book and brought it to the attention of Lt. Col. Lisa Kopczynski, the director of the Family Program Office.

Upon learning of the book, Kopczynski contacted a CNCS representative asking for Harnishfeger’s removal or termination, saying the book did not reflect well on the Family Program. Kopczynski then explained Harnishfeger’s removal by telling her the book was “really horrible,” though the volunteer later agreed to deactivate her Facebook in favor of completing her VISTA service with another organization.

Ultimately, none of the alternative organizations were a good fit for Harnishfeger, so her VISTA membership was terminated. She sued the government and other National Guard officials, including Kopczynski, under the First Amendment and the Administrative Procedure Act, but the Indiana Southern District Court granted summary judgment to the defendants. 

In overturning summary judgment for Kopczynski, the 7th Circuit first upheld the validity of Harnishfeger’s First Amendment claim, relying on United States v. National Treasury Employees Union, 513 U.S. 454 (1995) and Pickering v. Board of Education, 391 U.S. 563 (1968).

“Harnishfeger’s book was written and published a month before she began her VISTA service. Its content is entirely unrelated to CNCS, VISTA, and the Guard,” Hamilton wrote. “It was written for a general audience on the personal experiences of sex workers and their social role, matters for which there is undoubtedly a public. Harnishfeger never deliberately linked the book to her VISTA service, which had not even begun at the time of publication.

“…Conversations was speech on a matter of public concern within the meaning of NTEU, and Harnishfeger is therefore entitled to Pickering balance,” he continued. “The district court erred in reaching the contrary conclusion.”

The district court had ruled in the alternative that even if “Conversations” met the threshold issue of constitutional protection, the Pickering balance would weigh in favor of the defendants because of the way the book would affect perceptions of the National Guard and the Family Program Office. But the 7th Circuit also disagreed with that finding.

“The connection between the stated grounds for Harnishfeger’s termination and the evidence before us is so tenuous as to support a reasonable inference that the former were mere pretexts for the feelings of embarrassment and disgust that Conversations undoubtedly – and intentionally, Harnishfeger points out – arouses in its readers,” Hamilton said. “But a public employer may not ‘use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagreed with the content of employees’ speech.’”

The 7th Circuit further determined that Kopczynski was acting under color of state law when she demanded Harnishfeger’s removal, creating a remedy under 42 U.S.C. § 1983. And, the court said, Kopczynski was not covered by qualified immunity because “Conversations” is protected speech, and there was no evidence that such speech caused an actual disruption.

However, as to Harnishfeger’s claims against the United States and two employees of the Corporation for National and Community Service, the 7th Circuit found no “triable issue on any federal defendant’s personal participation in a constitutional violation and otherwise failed to show a triable issue on her APA claim.” Specifically, Harnishfeger failed to prove the CNCS employees played a role in her removal, Hamilton wrote, and she also failed to prove that she faced a “uniquely onerous” burden in attempting to find a new VISTA assignment.

“Undoubtedly, CNC’s course of proceeding put Harnishfeger in a less than ideal position to continue her VISTA service,” the judge wrote. “But non-ideal is not irrational.”

The case was remanded for further proceedings.

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