Ragsdale v. Fishler

2025 UT App 36

THE UTAH COURT OF APPEALS

KRISTI RAGSDALE,
Appellee and Cross-appellant,
v.
GEORGE FISHLER,
Appellant and Cross-appellee.

Opinion
No. 20230023-CA
Filed March 13, 2025

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 170903926

Karthik Nadesan, Attorney for
Appellant and Cross-appellee
Stacy J. McNeill and James C. Dunkelberger,
Attorneys for Appellee and Cross-appellant

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 For over ten years, George Fishler has shown his vehement
opposition to Kristi Ragsdale operating her residential treatment
center in his neighborhood by displaying provocative yard signs
and by mouthing or shouting profanities, coupled with rude hand
gestures, at anybody entering, leaving, or on the business’s
property. Ragsdale sought a civil stalking injunction against
Fishler, which the district court denied following the first
evidentiary hearing in this matter. Our Supreme Court reversed
the denial and remanded the matter back to the district court. On
remand, following a second evidentiary hearing, the district court
granted an injunction in Ragsdale’s favor.
Ragsdale v. Fishler

¶2 On appeal, Fishler argues (1) that the court erred in
concluding that his conduct amounted to stalking and (2) that the
injunction violates his right to free speech under the First
Amendment to the United States Constitution. Ragsdale
cross-appeals, contending that the court erred in not including in
the injunction a proposed provision enjoining Fishler from
displaying signs in his yard. She also asserts that the court abused
its discretion when it denied her request for attorney fees. We
largely affirm the district court, although we remand the matter
with instructions that the court make adjustments to one of the
injunction’s provisions to better comply with the First
Amendment.

BACKGROUND 1

¶3 Ragsdale is the founder and owner of the Eva Carlston
Academy (ECA)—a residential treatment center for adolescent
girls experiencing mental health issues, including anxiety and
depression. In 2013, ECA opened a location at the end of a
cul-de-sac in a Salt Lake-area neighborhood. Fishler and his wife
are long-time residents of the cul-de-sac. Their home is located
directly north of ECA.

¶4 Fishler and other neighbors vehemently opposed the
opening of the ECA location in their neighborhood. Several
neighbors voiced their opposition at community council meetings
and displayed yard signs concerning “commercial businesses
‘invading’ the neighborhood.” Fishler drafted a flier that he
distributed to neighbors that stated, without specifically
identifying Ragsdale or ECA, that the “commercial enterprise will

1. “In the context of a civil stalking injunction, we will recite the
facts in a light most favorable to the trial court’s findings.”
Anderson v. Deem, 2023 UT App 48, n.1, 530 P.3d 945 (quotation
simplified).

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Ragsdale v. Fishler

degrade th[e] neighborhood” and urged neighbors to contact the
local authorities.

¶5 Despite Fishler’s and the neighbors’ efforts, ECA was able
to obtain the necessary permits, and it began operating in the
cul-de-sac. Believing that the resulting noise and traffic “ruined
the neighborhood,” Fishler continued to “protest” ECA. He did
so by displaying two yard signs—one in the front and one in the
back of his property—stating,

TROUBLED TEEN
MONEY MACHINE
BECOME DISABLED
FOR ONLY
$10,000/MONTH

and another sign at the front of his property stating, “DELIVER
US FROM EVA.” These signs have remained on Fishler’s property
for many years. Additionally, whenever Fishler saw Ragsdale,
he would hold up his middle finger and sometimes mouth
or shout profanities at her. Fishler exhibited the same
behavior toward others on ECA property and vehicles leaving or
arriving at ECA. Fishler would also raise his middle finger toward
the ECA building whenever he drove past it. Fishler did not alter
this conduct even after ECA responded by installing security
cameras.

¶6 In June 2017, Ragsdale sought a civil stalking injunction
against Fishler. She obtained a temporary stalking injunction that
same day, which was served on Fishler a little over a week later.
Fishler requested a hearing on the matter. In August 2017,
following a two-day evidentiary hearing, the district court
revoked the temporary stalking injunction and denied Ragsdale’s

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Ragsdale v. Fishler

petition for a civil stalking injunction. The court denied Fishler’s
subsequent request for attorney fees. 2

¶7 Both parties appealed the district court’s rulings,
culminating in our Supreme Court’s decision in Ragsdale v. Fishler
(Ragsdale I), 2021 UT 29, 491 P.3d 835. The Court reversed the
denial of the civil stalking injunction, ruling that the district court
(1) erroneously concluded that Fishler’s course of conduct could
not be directed at Ragsdale based on the court’s “mistaken
understanding that Mr. Fishler could direct his conduct only at . . .
his subjectively intended target,” id. ¶ 43; (2) failed to determine
whether Fishler’s conduct would cause a reasonable person in
Ragsdale’s circumstances to suffer fear or emotional distress, id.
¶ 49; and (3) erred in ending its analysis with the conclusion that
Fishler’s signs and conduct constituted protected “political
speech” under the First Amendment without also analyzing
whether the requested injunction “fell within the stalking
statute’s parameters” and whether the proposed injunction
constituted a content-based or content-neutral restraint on speech,
id. ¶¶ 54–56 (quotation simplified). Accordingly, our Supreme
Court remanded the case to the district court with instructions “to
rule anew on whether Mr. Fishler directed his conduct at Ms.
Ragsdale, whether his conduct would cause a reasonable person
in Ms. Ragsdale’s circumstances fear or emotional distress, and
whether Ms. Ragsdale’s [proposed] injunction burdens more
speech than necessary.” Id. ¶ 66. The Court also vacated the
district court’s denial of Fishler’s attorney fees request and noted

2. Judge Katherine Bernards-Goodman presided over the first
evidentiary hearing and retired shortly after denying the civil
stalking injunction. Judge Amber M. Mettler thereafter denied
Fishler’s attorney fees request, held the second evidentiary
hearing on remand from our Supreme Court, and ultimately
granted the civil stalking injunction that is the subject of the
current appeal.

20230023-CA 4 2025 UT App 36
Ragsdale v. Fishler

“that either party may make a new fee request following the
district court’s final judgment on remand.” Id. ¶ 65.

¶8 On remand, in May 2022, the district court held a second
two-day evidentiary hearing on Ragsdale’s petition for a civil
stalking injunction. A few months later, the court issued its
Findings of Fact, Conclusions of Law, and Order.

¶9 In addition to the findings described above, the district
court noted Ragsdale’s testimony that Fishler’s conduct escalated
after the 2017 denial of the civil stalking injunction. The court
stated that this assertion was consistent with Fishler’s testimony,
as summarized by the court, that he “did not think his conduct
would cause anyone emotional distress or cause anyone to fear
for their safety because ‘he won’ and because ‘the Third District
Court said it was political speech and it was allowed.’” Fishler
said that because “he spent tens of thousands of dollars on his free
speech,” he “might as well use it.” Fishler testified that he ceased
raising his middle finger and mouthing profanities after our
Supreme Court issued its decision in 2020, 3 but the district court
did not find this testimony to be credible, particularly in light of
Ragsdale’s and another ECA employee’s testimony to the
contrary. 4

¶10 Several ECA employees testified at the second evidentiary
hearing regarding Fishler’s conduct toward them and Ragsdale

3. Our Supreme Court initially issued its decision in August 2020,
see Ragsdale v. Fishler, 2020 UT 56, but following Fishler’s petition
for a rehearing, the Court issued an amended opinion in July 2021
to correct two factual errors, see Ragsdale I, 2021 UT 29, n.1, 491
P.3d 835.

4. The ECA employee in question testified that as recently as April
2022, Fishler “flipped her off and mouthed ‘fucking asshole’” at
her.

20230023-CA 5 2025 UT App 36
Ragsdale v. Fishler

over the years. They each testified regarding numerous
interactions with Fishler in which he would most commonly flip
them off and mouth “fuck you,” “asshole,” or some variation
thereof at them. Some employees testified that they witnessed
Fishler exhibit the same kind of behavior toward Ragsdale and
others. The employees each testified that such conduct had caused
them to feel anxious, scared, distressed, uncomfortable, angry,
and/or threatened. The district court noted that “a number of”
employees became “visibly emotional” during their testimony. It
also found the employees’ testimony to be “particularly credible”
and “their descriptions of [Fishler’s] conduct, his hateful
demeanor, and the deleterious effect of [his] behavior on them
and on” Ragsdale to be “detailed and consistent.”

¶11 Ragsdale testified that Fishler’s behavior causes her to fear
for her own safety, as well as for that of ECA employees and
residents. The court found that Ragsdale “experiences anxiety
every day as a result of [Fishler’s] conduct.” The court found that
Ragsdale worries about what Fishler will say or do, that his
conduct might negatively affect ECA’s residents, and that his
conduct will affect the business by causing parents to worry for
their daughters’ safety. As a result of the anxiety, Ragsdale
attends therapy and takes anti-anxiety medication. She also drives
different vehicles home in an effort to prevent Fishler from
recognizing her.

¶12 The district court reviewed the transcript of the first
evidentiary hearing in which Fishler testified, as summarized by
the court, “that his conduct was intended to protest ECA,” that “it
was not directed towards any specific person,” “that it was not for
the purpose of scaring anyone,” and “that he never interpreted
anyone’s reaction as expressing fear or emotional distress.”
Fishler also “credibly” testified at the first evidentiary hearing
that he did not know what Ragsdale looked like until she
appeared at the first hearing. But the court found that after that
hearing, Fishler knew who Ragsdale was, what vehicle she drove,

20230023-CA 6 2025 UT App 36
Ragsdale v. Fishler

and that his conduct “was extremely upsetting” to her and others
at ECA.

¶13 The court also found that in early 2021, Fishler put up yet
another sign on his property stating,

STOP THE ABUSE
SIGN THE PETITION
INVESTIGATE
EVA CARLSTON ACADEMY
FOR EMOTIONAL ABUSE

The sign also included a link and QR code for an online petition
that visitors could sign. The petition, which was initially posted
online in 2019, alleged that ECA treated its residents poorly, and
it requested that ECA be investigated and “hopefully shut
down.” 5 Signers of the petition left comments, some of which
included death threats aimed at Ragsdale and disclosed her
personal information. The court found that this new sign caused
Ragsdale to fear for her safety because the comments on the linked
petition threatened her by name and included her personal
information. Fishler, who did not author the petition, testified that
after he became aware of the petition, he signed it and decided to
post the yard sign directing readers to the petition. The court
found that although Fishler did not post a comment on the
petition himself, he saw at least some of the threatening
comments. The petition was eventually removed from the hosting
website, and Fishler took down that one sign shortly before the
second evidentiary hearing.

¶14 Turning next to its conclusions of law, the district court
first addressed whether Fishler’s conduct constituted stalking, as

5. Ragsdale denies the online petition’s allegations.

20230023-CA 7 2025 UT App 36
Ragsdale v. Fishler

defined by Utah Code section 76-5-106.5 (the stalking statute). The
court held that Fishler’s

conduct of yelling and mouthing obscenities,
flipping off anyone coming or going from ECA,
driving by ECA and flipping off any and everyone
at ECA, and posting signs about ECA amounts to
communicating to [Ragsdale] directly and indirectly
through ECA staff and clients, communicating
about [her] with ECA staff and clients, confronting
[her], and contacting [her] coworkers at ECA, and,
therefore, constitutes a course of conduct directed at
[Ragsdale].

¶15 The court next addressed whether this course of conduct
would cause a reasonable person in Ragsdale’s circumstances to
fear for their own safety or for that of another. The court disagreed
with Fishler’s argument that it did not because he had been
engaging in the same course of conduct for almost 10 years
without ever physically assaulting anyone, he never expressly
threatened anyone, and Ragsdale and others at ECA were always
“in a position of safety” during the confrontations. The court held
that a nearly “10-year campaign of harassment in a quiet,
residential neighborhood involving hundreds of interactions after
being told that your conduct is causing another person to be afraid
would cause any reasonable person to be afraid for his or her
safety and the safety of others” and that “the cumulative effect of
[Fishler’s] conduct is particularly fear-inducing given that it
demonstrates obsessive and unreasonable behavior on [his] part.”
The court stated that this especially applied to someone in
Ragsdale’s position “as the owner of a business that is responsible
for the safety and well-being of girls and young women who are
living at a facility owned and operated by the business.” The court
further held that posting a sign directing readers to a petition
containing comments threatening Ragsdale by name and

20230023-CA 8 2025 UT App 36
Ragsdale v. Fishler

revealing her personal information could cause a reasonable
person in her shoes to fear for their safety.

¶16 For much the same reasons, the court concluded that
Fishler’s course of conduct also would have unquestionably
caused a reasonable person in Ragsdale’s circumstances to suffer
emotional distress. While “certainly not dispositive,” the court
first noted that Ragsdale and almost every ECA employee who
testified “became emotional” when describing how Fishler’s
“constant and angry conduct made them feel nervous, anxious,
and on edge, the cumulative effect of which is unquestionably
significant mental and psychological suffering.” The court held
that “[t]he constant yelling and mouthing of obscenities and
flipping off over the course of nearly 10 years in an otherwise
quiet neighborhood, literally every time an ECA-affiliated
individual crosses paths with [Fishler] would cause any
reasonable person to suffer significant mental and psychological
suffering.” Additionally, the court held that Fishler’s conduct
could cause a reasonable person in Ragsdale’s position as a
business owner to “suffer emotional distress as a result of the
potential damage to her livelihood.” The court also indicated that
“the fact that [Fishler] was fully aware of the effect his conduct
was having on [Ragsdale] and others at ECA makes it all the more
likely that a reasonable person would suffer emotional distress as
a result of [his] behavior.”

¶17 The court rejected Fishler’s argument that the
repetitiveness and consistency of the offending conduct over the
course of several years “should have decreased any shock or
discomfort that [Ragsdale] experienced.” The court stated that
this assertion “is contrary to human experience” and that any
such holding would only encourage individuals “to engage in
stalking for as long as possible in order to argue that the petitioner
should somehow be desensitized to the conduct.” The court
further stated that although Ragsdale did not witness every single
interaction between Fishler and others, she, as the owner of ECA,

20230023-CA 9 2025 UT App 36
Ragsdale v. Fishler

is responsible for ECA staff and residents and she thus reasonably
would have been apprised of any incidents she did not directly
witness.

¶18 After also finding that Fishler knew or should have known
the effect his conduct would have on a reasonable person, the
court concluded that Ragsdale had shown by a preponderance of
the evidence that Fishler’s conduct amounted to stalking.

¶19 The court next addressed Fishler’s argument that even if
his conduct constituted stalking, any restraint on that conduct
violated the First Amendment for being content-based. The court
disagreed, stating that “[t]he focus of the stalking statute and the
Court’s analysis is on the effect of [Fishler’s] conduct on a
reasonable person in [Ragsdale’s] circumstances, and not on the
content of any message or communication.” The court reiterated
that Fishler’s “conduct amounts to stalking largely because he has
engaged in the conduct consistently, over a period of many years,
and despite learning that it causes recipients to fear for [their]
safety and to suffer emotional distress.”

¶20 The court also held that even if the resulting prohibition
was content-based, the speech at issue relates to “matters of
private, as opposed to public, concern and does not constitute
political speech.” The court stated that Fishler’s speech consisted
of yelling or mouthing profanities; “[h]olding up his middle
finger, sometimes while aggressively shaking his arm/hand”;
posting signs stating,

TROUBLED TEEN
MONEY MACHINE
BECOME DISABLED
FOR ONLY
$10,000/MONTH

and

20230023-CA 10 2025 UT App 36
Ragsdale v. Fishler

DELIVER US FROM EVA

and posting another sign stating,

STOP THE ABUSE
SIGN THE PETITION
INVESTIGATE
EVA CARLSTON ACADEMY
FOR EMOTIONAL ABUSE

and directing readers to the online petition that included
comments threatening Ragsdale and revealing her personal
information. The court stated that other than possibly the sign
directing readers to the online petition, none of the other forms of
speech at issue “relates to any issues of interest to society at large.”
The court also noted that the speech occurred “on a dead-end
street in a quiet, residential neighborhood usually with no one
else around” and that Fishler’s “messages—yelling and mouthing
obscenities, and posting signs suggesting one can become
‘disabled’ for a price—do not seek to inform the public about
concerns related to operating a business in a residential
neighborhood” or any information at all, for that matter.

¶21 Lastly, citing Ragsdale I, 2021 UT 29, 491 P.3d 835, the court
held that even if Fishler’s conduct constituted political speech, the
First Amendment did not necessarily shield him from a civil
stalking injunction. See id. ¶ 50. The court then proceeded to
follow Ragsdale I’s directive to evaluate “whether each provision
of a proposed injunction is content-based or content-neutral, and
[to then] evaluate each provision under the corresponding level
of scrutiny.” Id. ¶ 55. The civil stalking injunction Ragsdale
proposed contained the following provisions that are relevant to
the current appeal:

• “Personal Conduct Order. [Fishler] shall not follow,
threaten, annoy, harass, or otherwise stalk [Ragsdale].”

20230023-CA 11 2025 UT App 36
Ragsdale v. Fishler

• “No Contact Order. [Fishler] shall not directly or indirectly
contact, communicate with, or gesture to [Ragsdale] or her
coworkers. [Fishler] shall not directly or indirectly contact,
communicate with, or gesture to others as they enter or exit
[ECA] or while they are located on the ECA premises.”

• “Other Orders. [Fishler] shall take down the signs
currently posted on his property and refrain from posting
any additional signage on his property that he knows or
reasonably should know threatens, annoys, harasses,
communicates to, or otherwise causes [Ragsdale] distress.”

¶22 The court concluded that in a modified form, 6 the Personal
Conduct Order was content-neutral “because it does not draw
any distinction based on any message conveyed by [Fishler]” and
that it “does not burden more speech than necessary to
accomplish the goal of protecting [Ragsdale] from being stalked.”
For similar reasons, the court held that a modified version of the
No Contact Order was content-neutral and did not “burden more
speech than necessary.” But the court held the proposed “Other
Orders” provision was “content-based because whether any
particular sign would be prohibited by the injunction cannot be
determined without reference to and evaluation of the content or
subject matter of the sign and, therefore, [it is] subject to strict
scrutiny.” The court thus ruled against including this proposed
provision in the final injunction. But the court noted that “[b]y not
enjoining the posting of any particular signage,” it was not
suggesting “that the posting of a sign(s) cannot constitute stalking
and/or that it is permitted by the injunction.”

6. The district court made modifications to the proposed Personal
Conduct Order and No Contact Order provisions. See infra ¶ 23.

20230023-CA 12 2025 UT App 36
Ragsdale v. Fishler

¶23 In light of these holdings, the district court issued a
stalking injunction against Fishler containing the following
provisions:

1. Personal Conduct Order. Do not stalk [Ragsdale].
This means you must not follow, threaten, annoy,
harass, or cause distress to [Ragsdale]. For a legal
definition of stalking, see Utah Code 76-5-106.5.

2. No Contact Order. Do not contact, phone, text,
mail, e-mail or communicate either directly or
indirectly in any way with [Ragsdale]. Do not
contact, communicate with, or gesture to others as
they enter or exit [ECA] or while they are located on
the ECA premises.

¶24 Ragsdale subsequently filed a motion seeking an award of
over $100,000 in attorney fees and costs. Neither party requested
a hearing, and the district court entered an order denying the
motion.

¶25 Fishler appeals, and Ragsdale cross-appeals.

ISSUES AND STANDARDS OF REVIEW

¶26 Fishler first argues that the district court erred in
concluding that his course of conduct would have caused a
reasonable person in Ragsdale’s circumstances to fear for their
safety and to suffer emotional distress. “The question of whether
a reasonable person would suffer fear or emotional distress under
the circumstances is a question of fact that we review for clear
error.” Noel v. James, 2022 UT App 33, ¶ 10, 507 P.3d 832 (quotation
simplified). See Ragsdale I, 2021 UT 29, ¶ 16, 491 P.3d 835. “A trial
court’s factual determinations are clearly erroneous only if they
are in conflict with the clear weight of the evidence, or if this court
has a definite and firm conviction that a mistake has been made.”

20230023-CA 13 2025 UT App 36
Ragsdale v. Fishler

Richins v. Weldon, 2023 UT App 147, ¶ 64, 541 P.3d 274 (quotation
simplified). And “we review the district court’s interpretation and
application of the underlying legal standard for correctness.”
Noel, 2022 UT App 33, ¶ 10 (quotation simplified).

¶27 Fishler next challenges the civil stalking injunction on First
Amendment grounds. He argues that as applied to him, the
stalking statute is unconstitutional. 7 “We review the

7. Fishler raises two other First Amendment challenges. First, he
argues that the district court erred in concluding that his conduct
did not constitute protected political speech. But Fishler’s
argument wholly omits any discussion of how the presence of
political speech affects the First Amendment analysis, particularly
the inquiry into whether the stalking injunction constituted a
content-based or content-neutral restriction on his speech. See
Ragsdale I, 2021 UT 29, ¶ 55, 491 P.3d 835. Instead, as elaborated
upon in Part II below, he argues that the civil stalking injunction
was entitled to strict scrutiny because it constituted a
content-based restriction. Because the district court concluded
that the No Contact Order part of the civil stalking injunction was
content-neutral regardless of whether Fishler’s conduct
amounted to political speech—which holding we affirm in Part
II.A.—and because we remand to the district court to make
adjustments to portions of the Personal Conduct Order that we
hold are content-based in Part II.B., we have no need to address
this additional argument.
Second, Fishler argues that the stalking statute is
unconstitutionally overbroad. Because this argument is not
preserved, and because Fishler has not argued an exception to our
preservation rule, we do not address it. See Donjuan v. McDermott,
2011 UT 72, ¶ 21, 266 P.3d 839 (“Generally, the fact that a party is
asserting constitutional claims does not excuse him from
complying with the preservation rule.”). Fishler asserts that his
(continued…)

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Ragsdale v. Fishler

interpretation of the federal constitution for correctness.” Ragsdale
I, 2021 UT 29, ¶ 17. See Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990
(“Constitutional issues . . . are questions of law that we review for
correctness.”) (quotation simplified).

¶28 On cross-appeal, Ragsdale raises another First
Amendment issue, contending that the court erred in holding that
enjoining Fishler from displaying signs directed at her constituted
a content-based restriction on speech. We likewise review this
argument for correctness. See Ragsdale I, 2021 UT 29, ¶ 17.

¶29 Next, Ragsdale challenges the district court’s denial of her
motion for attorney fees. “When a statute grants discretion to
district courts to assess attorney fees, if appropriate, after
considering the facts of the case, we review that assessment for
abuse of discretion.” Id. ¶ 18 (quotation simplified). “A district
court abuses its discretion only if no reasonable person would
take the view adopted by the trial court.” North Fork Meadows

overbreadth challenge is preserved because, as he sees it, the
district court raised and analyzed the issue sua sponte in its
findings of fact and conclusions of law. See Helf v. Chevron U.S.A.
Inc., 2015 UT 81, ¶ 42, 361 P.3d 63 (“Where a district court itself
raises and then resolves an issue sua sponte, it obviously had an
opportunity to rule on the issue. This satisfies the basic purpose
of the preservation rule.”). We disagree. “A statute may be struck
for overbreadth if a petitioner successfully argues (1) the statute
reaches a substantial amount of constitutionally protected
conduct and (2) the statute is not readily subject to a narrowing
construction.” State v. Miller, 2023 UT 3, ¶ 74 n.7, 527 P.3d 1087
(quotation simplified). Because the district court engaged in no
such analysis in its findings and conclusions, this issue was not
preserved.

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Ragsdale v. Fishler

Owners Ass’n v. Dove, 2023 UT App 107, ¶ 19, 537 P.3d 258
(quotation simplified).

ANALYSIS

I. The Stalking Statute

¶30 Pursuant to the Utah Code, an individual (the petitioner)
“who believes [he or she] is the victim of stalking may file a
verified written petition for a civil stalking injunction against the
alleged stalker with the district court.” Utah Code Ann.
§ 78B-7-701(1)(a)(i) (LexisNexis 2022). 8 The district court may then
issue an ex parte civil stalking injunction “[i]f the court
determines that there is reason to believe that an offense of
stalking has occurred.” Id. § 78B-7-701(3)(a). If the individual
against whom the ex parte injunction was entered (the
respondent) subsequently requests a hearing on the matter, the
petitioner must show by a preponderance of the evidence that the
offense of stalking—as defined in the criminal code 9—occurred.

8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.

9. “While it may seem odd to discuss an ‘offense’ in a civil context,
the stalking injunction statute borrows its definition from the
criminal stalking statute. In other words, to obtain a civil stalking
injunction, a petitioner must establish the elements necessary to
meet the definition of stalking in the criminal code.” Anderson v.
Deem, 2023 UT App 48, ¶ 23 n.6, 530 P.3d 945 (quotation
simplified). See also Utah Code Ann. § 78B-7-102(22) (LexisNexis
Supp. 2023) (stating that the term “[s]talking” as used in the civil
injunction context “means the same as that term is defined in” the
stalking statute found in the criminal code).

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Ragsdale v. Fishler

Id. §§ 78B-7-102(22) (Supp. 2023), -701(4)(a), (5)(b) (2022). “At the
hearing, the court may modify, revoke, or continue the
injunction.” Id. § 78B-7-701(5)(a). 10

¶31 The stalking statute defines stalking, in pertinent part, as
follows:

An actor commits stalking if the actor intentionally
or knowingly:

(a) engages in a course of conduct directed at a
specific individual and knows or should know that
the course of conduct would cause a reasonable
person:

(i) to fear for the individual’s own safety or
the safety of a third individual; or

(ii) to suffer other emotional distress . . . .

Id. § 76-5-106.5(2) (Supp. 2023). Accordingly, stalking consists of
two elements: (1) the respondent “must intentionally or
knowingly engage in a course of conduct directed at” the
petitioner and (2) the respondent “must know or should know
that the course of conduct would cause a reasonable person to fear
for the person’s own safety or suffer other emotional distress.”
Ragsdale I, 2021 UT 29, ¶ 25, 491 P.3d 835 (quotation simplified).
Under the second element, emotional distress is defined as
“significant mental or psychological suffering, whether or not

10. If the respondent does not request a hearing, “the ex parte civil
stalking injunction automatically becomes a civil stalking
injunction without further notice to the respondent and expires
three years after the day on which the ex parte civil stalking
injunction is served.” Utah Code Ann. § 78B-7-701(6)(c)
(LexisNexis 2022).

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Ragsdale v. Fishler

medical or other professional treatment or counseling is
required.” Utah Code Ann. § 76-5-106.5(1)(a)(ii)(A). Both elements
must be met before a district court may issue a civil stalking
injunction. Id.

¶32 Here, only the second element is at issue—specifically,
whether Fishler’s course of conduct would have caused a
reasonable person in Ragsdale’s circumstances to suffer
emotional distress. 11 Fishler contends that the district court erred
in answering this question in the affirmative. We disagree.

¶33 The second element of the stalking inquiry imposes “an
objective standard under which the subjective effect of the
respondent’s conduct on the petitioner is irrelevant.” Ragsdale I,
2021 UT 29, ¶ 45 (quotation simplified). In other words, “a
petitioner need only show that the respondent’s conduct would
affect a reasonable person in the petitioner’s circumstances.” Id.
(quotation simplified). See Utah Code Ann. § 76-5-106.5(1)(a)(v)
(defining “[r]easonable person” as “a reasonable person in the
[petitioner’s] circumstances”). “Courts must avoid succumbing to
a purely subjective analysis, which is inconsistent with the
objective standard’s intent to protect against criminalizing
conduct that only an unreasonably sensitive or paranoid

11. Fishler does not challenge the district court’s determination
regarding the mens rea aspect of this element, i.e., that he knew or
should have known that his course of conduct would cause a
reasonable person to suffer emotional distress. Also, because the
stalking statute requires the petitioner to show the course of
conduct would cause a reasonable person to fear for one’s safety
or to suffer emotional distress, see Utah Code Ann.
§ 76-5-106.5(2)(a)(i)–(ii) (LexisNexis Supp. 2023), and because we
hold that Ragsdale satisfied the latter showing, we do not address
Fishler’s arguments challenging the district court’s fear-for-safety
determination.

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Ragsdale v. Fishler

[petitioner] would find harassing.” Baird v. Baird, 2014 UT 08, ¶ 27,
322 P.3d 728 (quotation simplified).

¶34 “In applying this standard, courts must consider the entire
context surrounding a respondent’s conduct” as well as “the
conduct cumulatively, accounting for the facts and circumstances
of the individual case.” Ragsdale I, 2021 UT 29, ¶ 45 (quotation
simplified). “Courts applying this individualized objective
standard have considered such factors as the [petitioner’s]
background, the [petitioner’s] knowledge of and relationship
with the [respondent], any history of abuse between the parties,
. . . and the cumulative effect of [the respondent’s] repetitive
conduct.” Baird, 2014 UT 08, ¶ 27 (quotation simplified). A court
may also “consider whether the [respondent] had knowledge of a
particular vulnerability of the [petitioner] and then acted with full
knowledge of the [petitioner’s] vulnerability.” Id. (quotation
simplified). Accordingly, “acts that seem perfectly innocent or
even well intentioned may constitute stalking.” Id. ¶ 26. For
instance, “conduct such as sending the [petitioner] a dozen roses
may seem benign and loving to the casual observer, but could
mean a very different thing when understood in the context of the
[petitioner’s] experience.” Id. (quotation simplified).

¶35 In the prior appeal in this matter, our Supreme Court held
that the district court misapplied this standard when it concluded
that, “in this day and age, exposure to pejorative gestures and
profanity should not cause the type of emotional distress
envisioned by the stalking statute.” Ragsdale, 2021 UT 29, ¶ 46
(quotation simplified). The Court held that this conclusion did
“not account for the cumulative impact of [Fishler’s] behavior”
over the years, nor did “it suggest that the court considered the
fact that Mr. Fishler’s conduct occurred where Ms. Ragsdale
worked.” Id. ¶ 47. Furthermore, the Court found “it hard to
conclude that profane gestures and comments categorically could
not” satisfy the second element of the stalking inquiry, id., and it
reiterated that “[t]o properly apply the stalking statute’s objective

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Ragsdale v. Fishler

standard, the district court should have analyzed [Fishler’s]
conduct in light of the specific facts and circumstances of Ms.
Ragsdale’s individual case,” id. ¶ 48. The Court “suggest[ed]”
that, on remand, the district court consider the Baird factors, i.e.,
“the cumulative effect of the respondent’s repetitive conduct, the
petitioner’s background, knowledge of and relationship with the
respondent, and any history of abuse between the parties.” Id.
¶ 49 n.40 (quotation simplified). See Baird, 2014 UT 08, ¶ 27.

¶36 On remand, the district court followed our Supreme
Court’s guidance, ultimately concluding “that there can be no
question that a reasonable person in [Ragsdale’s] circumstances
would suffer emotional distress—meaning significant mental or
psychological suffering—as a result of [Fishler’s] conduct.” In
reaching this conclusion, the court considered the following
circumstances:

• Fishler’s conduct involved “constant yelling and mouthing
obscenities and flipping off over the course of nearly 10
years in an otherwise quiet neighborhood, literally every
time an ECA-affiliated individual crosses paths with” him;

• Ragsdale holds the position of “the owner of a business
that is responsible for the safety and well-being of girls and
young women who are living at a facility owned and
operated by the business”; 12

12. Although the district court discussed some of these
circumstances in the context of determining whether Fishler’s
course of conduct would have reasonably caused fear for one’s
safety or for that of others, the court indicated that the same
course of conduct would have also caused emotional distress
“[f]or substantially the same reasons.”

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Ragsdale v. Fishler

• Ragsdale “wants her business to succeed” and Fishler’s
conduct posed a threat of “potential damage to her
livelihood”;

• Although Ragsdale did not witness every interaction
between Fishler and ECA-affiliates, as the owner of ECA,
she “is responsible for her employees and certainly for her
clients, so it is reasonable for her to be aware of all such
incidents,” and her knowledge of Fishler’s conduct toward
others combined with “her additional knowledge that
[Fishler] knew that she was aware, would only heighten
the distress caused by [Fishler’s] conduct”;

• “[M]ost reasonable people would view [Fishler’s] conduct
as nearly, if not entirely, unhinged”;

• Fishler was aware of the threatening comments made in
the online petition when he posted the yard sign directing
readers to the petition;

• “Although certainly not dispositive,” Ragsdale and others
at ECA suffered “severe emotional distress and anxiety” as
a result of Fishler’s conduct and almost all “became
emotional” while testifying at the second evidentiary
hearing; and

• Fishler “was fully aware of the effect his conduct was
having on [Ragsdale] and others at ECA”—particularly
after the first evidentiary hearing that was held in 2017.

¶37 The court was also unpersuaded by Fishler’s contention
that “the repetitive and consistent nature of [his] conduct over the
years should have decreased any shock or discomfort that
[Ragsdale] experienced,” stating that such an assertion “is
contrary to human experience and would effectively encourage a
respondent to engage in stalking for as long as possible in order
to argue that the petitioner should somehow be desensitized to

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Ragsdale v. Fishler

the conduct.” The court similarly rejected Fishler’s argument that
any distress Ragsdale experienced from an errant belief that he
was personally targeting her should have been alleviated by his
testimony at the first evidentiary hearing that he was not targeting
her and did not even know what she looked like until that
hearing, that “the purpose of his conduct was to protest ECA’s
location in his neighborhood,” and that he did not intend to cause
anyone emotional distress. The court stated that it was not
convinced that this prior testimony was “sufficient to mitigate the
cumulative effect of his continual and obsessive harassment,” and
it further indicated that his argument implied “a ‘but I don’t mean
any harm’ defense that does not appear in the [stalking] statute.”

¶38 Fishler contends that in reaching its emotional-distress
determination, “the district court relied on the type of blanket
conclusions that the Utah Supreme Court held to be a
misapplication of the Stalking Statute.” In particular, he asserts
that some of the circumstances the court discussed as part of its
analysis were subjective beliefs rather than objective matters, and
that the court failed to reference the Baird factors in its analysis.
We address each argument in turn.

¶39 Fishler contends that the district court’s discussion of the
actual emotional distress and anxiety suffered by Ragsdale and
ECA staff “is exactly the kind of subjective analysis that Baird
forbids the district court from engaging in.” See 2014 UT 08, ¶ 25
(“Under the Stalking Statute’s solely objective standard, the
subjective effect of the respondent’s conduct on the petitioner is
irrelevant.”). The district court indicated that this circumstance
was “certainly not dispositive” in its analysis, and there were
several other factors supporting the court’s ultimate conclusion.
Indeed, other than the one passing reference to subjective effect,
the vast majority of the court’s analysis was focused on the effect
Fishler’s conduct would have on a reasonable person in
Ragsdale’s circumstances. Additionally, the court did not
consider the actual effect of the conduct on any single individual

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Ragsdale v. Fishler

but rather noted that several individuals were similarly affected by
the same conduct. In this context, the subjective effect could be
relevant to the individualized objective analysis mandated by
Baird and its progeny. Specifically, the fact that several
individuals suffered emotional distress from the same conduct
would tend to support a finding that a reasonable person in the
same circumstances would suffer emotional distress—as opposed
to distress “only an unreasonably sensitive or paranoid”
petitioner would suffer. Id. ¶ 27 (quotation simplified). And as
discussed in greater detail below, the actual negative impact of
the conduct on ECA staff is also relevant to the individualized
objective analysis in that the conduct likely affected the business
and work environment for which Ragsdale was directly
responsible.

¶40 The district court also considered the relevant Baird factors.
The court certainly considered Ragsdale’s background as the
operator of a business at which girls and young women
experiencing mental health issues resided and her accompanying
responsibility toward ECA’s staff and residents. See id. And due
to her position, she was aware of not only her own interactions
with Fishler, but also of the interactions others at ECA had with
him. Several ECA staff members suffered “severe emotional
distress and anxiety” as a result of Fishler’s 10-year course of
conduct, thereby negatively affecting the business and work
environment for which Ragsdale was directly responsible. 13
Accordingly, regardless of whether Fishler’s course of conduct
was aimed at Ragsdale personally or ECA more generally, the

13. For this same reason we reject Fishler’s argument that the
district court failed to explain how a reasonable person would
suffer emotional distress when he was “not specifically singling
Ragsdale out.” The court explicitly discussed the effect of his
conduct on Ragsdale’s business and thereby on her as part of its
analysis.

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Ragsdale v. Fishler

effect of his conduct—particularly as it unceasingly spanned a
10-year period—could certainly cause a reasonable person in
Ragsdale’s position to suffer emotional distress.

¶41 The court also considered the potential damage Fishler’s
course of conduct posed to the business and Ragsdale’s
livelihood. See Baird, 2014 UT 08, ¶ 27; State v. Miller, 2021 UT App
88, ¶ 22, 496 P.3d 282 (“Damage to one’s reputation, relationships,
or livelihood would cause a reasonable person to suffer emotional
distress regardless of whether the communications that caused
the damage are ever relayed to the victim.”), aff’d, 2023 UT 3, 527
P.3d 1087. Fishler takes issue with the court’s consideration of this
factor, arguing that Ragsdale never presented evidence that his
conduct actually resulted in loss of revenue or otherwise harmed
her business. But the court discussed the “potential damage to
[Ragsdale’s] livelihood,” and Fishler has not presented argument
as to why a court should be limited to considering only actual
damage to one’s livelihood. To the contrary, the fear of potential
damage to one’s livelihood could certainly cause a reasonable
person to suffer emotional distress. Cf. Miller, 2023 UT 3, ¶ 112 n.9
(stating that a reasonable person could suffer emotional distress
“from a fear of being fired”). And here, where ECA is in the
business of caring for girls and young women experiencing
mental health issues, the presence of a man yelling or mouthing
profanities at many ECA-affiliated individuals, including
residents and prospective residents, certainly could negatively
affect the business—at the very least, one could reasonably fear
that it would.

¶42 Finally, the court evaluated the cumulative impact of the
several circumstances it considered, particularly as they persisted
over a 10-year period. See Baird, 2014 UT 08, ¶ 27. Fishler takes
issue with the court’s rejection of his argument that “any shock or
discomfort that [Ragsdale] experienced” should have decreased
over time. He asserts that the court’s statement that this argument
was “contrary to human experience” and would incentivize

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Ragsdale v. Fishler

stalkers to prolong the act of stalking “ignored the Baird factors
and [Ragsdale I’s] admonishment that the district court’s review
be limited to an objective analysis of Ragsdale’s specific
circumstances.” But the court was addressing the Baird factors
when it considered the cumulative effect of Fishler’s decade-long
conduct.

¶43 Furthermore, the court’s rejection of this argument does
not negate the fact that the court addressed the specific
circumstances of this case. The court’s conclusion is supported by
the fact that several ECA employees, whom the court found to be
“particularly credible,” became visibly emotional while testifying
regarding the “severe emotional distress and anxiety” they
suffered as a result of Fishler’s conduct. As discussed above, this
evidence of several individuals suffering emotional distress from
the same conduct supported the court’s finding regarding
whether a reasonable person in Ragsdale’s circumstances would
suffer emotional distress.

¶44 For these reasons, the district court did not clearly err in
finding that a reasonable person in Ragsdale’s circumstances
would suffer emotional distress as a result of Fishler’s course of
conduct.

II. The First Amendment

¶45 The First Amendment to the United States Constitution,
which is made “applicable to the States through the Fourteenth
Amendment,” Miller v. California, 413 U.S. 15, 25 (1973), “prohibits
any law ‘abridging the freedom of speech,’” Butt v. State, 2017 UT
33, ¶ 17, 398 P.3d 1024 (quoting U.S. Const. amend. I). “This
protection extends to all ideas having even the slightest
redeeming social importance—unorthodox ideas, controversial
ideas, even ideas hateful to the prevailing climate of opinion.” Id.
(quotation simplified). “Political speech enjoys the broadest
protection under the First Amendment.” Ragsdale I, 2021 UT 29,

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Ragsdale v. Fishler

¶ 51, 491 P.3d 835 (quotation simplified). See Boos v. Barry, 485 U.S.
312, 322 (1988) (“In public debate our own citizens must tolerate
insulting, and even outrageous, speech in order to provide
adequate breathing space to the freedoms protected by the First
Amendment.”) (quotation simplified); New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964) (stating that “debate on public
issues should be uninhibited, robust, and wide-open”).

¶46 Nevertheless, “in appropriate circumstances, courts may
still enjoin speech that meets the definition of stalking even if it
has a political objective.” Ragsdale I, 2021 UT 29, ¶ 51. See id. ¶ 55
(“[T]he acknowledgement of a respondent’s right to free speech is
just the starting point in assessing whether part of that right must
yield to the governmental interests underlying the stalking
statute.”). See also United States v. O’Brien, 391 U.S. 367, 376 (1968)
(“When speech and nonspeech elements are combined in the
same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.”) (quotation
simplified). Thus,

courts may issue civil stalking injunctions under
specific, statutorily defined parameters. These
parameters include enjoining respondents from
committing stalking and restraining respondents
from coming near a petitioner’s residence or place
of employment. They also include enjoining
respondents from contacting, directly or indirectly,
the petitioner, the petitioner’s employers,
employees, fellow workers, and others with whom
communication would be likely to cause the
petitioner annoyance or alarm. In addition, courts
may grant any other relief necessary or convenient
for the protection of the petitioner and other
specifically designated persons under the
circumstances.

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Ragsdale v. Fishler

Ragsdale I, 2021 UT 29, ¶ 52 (quotation simplified). In assessing
whether a civil stalking injunction violates the respondent’s free
speech rights, district courts must, “at a minimum, determine
whether each provision of a proposed injunction is content-based
or content-neutral, and evaluate each provision under the
corresponding level of scrutiny.” Id. ¶ 55.

¶47 A content-based restriction “stifles speech on account of its
message.” Turner Broad. System, Inc. v. F.C.C., 512 U.S. 622, 641
(1994). In other words, a restriction is content-based “if it
require[s] enforcement authorities to examine the content of the
message that is conveyed to determine whether a violation has
occurred” or if it is “concerned with undesirable effects that arise
from the direct impact of speech on its audience or listeners’
reactions to speech.” McCullen v. Coakley, 573 U.S. 464, 479, 481
(2014) (quotation simplified). This “extends not only to a
restriction on a particular viewpoint, but also to a prohibition of
public discussion of an entire topic.” Burson v. Freeman, 504 U.S.
191, 197 (1992). Additionally, restrictions that appear
content-neutral on their face are treated as content-based if they
“cannot be justified without reference to the content of the
regulated speech” or if they “were adopted by the government
because of disagreement with the message the speech conveys.”
Reed v. Town of Gilbert, 576 U.S. 155, 164 (2015) (quotation
simplified). Content-based restrictions are presumptively
unconstitutional, R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992),
and are accordingly “subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or lack
of animus toward the ideas contained in the regulated speech,”
Reed, 576 U.S. at 165 (quotation simplified). Such restrictions
overcome strict scrutiny only if “they are narrowly tailored to
serve compelling state interests.” Id. at 163. In the strict-scrutiny
context, a restriction is narrowly tailored if it is “the least
restrictive means to further the articulated interest.” Sable
Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989).

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Ragsdale v. Fishler

¶48 Conversely, a restriction is content-neutral so long as it is
“justified without reference to the content of the regulated
speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(quotation simplified). Content-neutral restrictions are subject to
the “less stringent standard” of intermediate scrutiny. 14 City of Erie
v. Pap’s A.M., 529 U.S. 277, 289 (2000) (quotation simplified). See
O’Brien, 391 U.S. at 377. A restriction withstands intermediate
scrutiny if (1) “it furthers an important or substantial government
interest,” (2) “the governmental interest is unrelated to the
suppression of free expression,” and (3) “the incidental restriction
on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” 15 O’Brien, 391 U.S. at
377. “To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government’s
interests. Rather, the requirement of narrow tailoring is satisfied
so long as the regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation.” Turner Broad. System, 512 U.S. at 662 (quotation
simplified). “Narrow tailoring in this context requires, in other
words, that the means chosen do not burden substantially more
speech than is necessary to further the government’s legitimate
interests.” Id. (quotation simplified).

14. Another category of content-neutral restrictions on speech is
time, place, and manner restrictions in a public forum. See Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). Neither party has
suggested that this category is applicable here.

15. This is the standard that the district court applied in this case
upon concluding that the No Contact Order and the Personal
Conduct Order provisions of the proposed civil stalking
injunction were content-neutral. Because neither party has
advocated a different standard on appeal, we apply the O’Brien
standard here as well.

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Ragsdale v. Fishler

¶49 On appeal, Fishler challenges the No Contact Order and
the Personal Conduct Order provisions of the civil stalking
injunction entered against him. 16 On cross-appeal, Ragsdale
challenges the district court’s rejection of a proposed provision
ordering Fishler to additionally remove the yard signs from his
property and enjoining him from putting up similar signs in the
future. We thus proceed to “evaluate each provision under the
corresponding level of scrutiny.” Ragsdale I, 2021 UT 29, ¶ 55.

A. The No Contact Order

¶50 The No Contact Order directs Fishler as follows:

Do not contact, phone, text, mail, e-mail or
communicate either directly or indirectly in any
way with [Ragsdale]. Do not contact, communicate
with, or gesture to others as they enter or exit [ECA]
or while they are located on the ECA premises.

The district court held that this provision “is content-neutral
because the provision is not concerned with and does not draw
any distinction based on any message conveyed by” Fishler; that
“the stalking statute furthers an important and substantial
governmental interest in protecting Utah citizens from emotional
distress and other harm as a result of stalking”; and that the

16. Fishler argues that “the district court failed to perform either
a strict scrutiny or an intermediate scrutiny analysis regarding the
constitutionality of applying the Stalking Statute to prohibit
Fishler’s conduct.” But that is exactly what the district court did
in this case. It followed our Supreme Court’s directive that courts,
in the civil application of the stalking statute, should “determine
whether each provision of a proposed injunction is content-based
or content-neutral, and evaluate each provision under the
corresponding level of scrutiny.” Ragsdale I, 2021 UT 29, ¶ 55, 491
P.3d 835.

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Ragsdale v. Fishler

provision “does not burden more speech than necessary to
accomplish the goal of protecting [Ragsdale] from being stalked.”
We largely agree with the district court’s analysis.

¶51 This provision is content-neutral as it prohibits Fishler
from contacting Ragsdale and others on, entering, or leaving ECA
property in any way—regardless of the substance of the message.
See Ward, 491 U.S. at 791. The provision thus does not distinguish
a friendly wave “hello” from the rude hand gestures Fishler
frequently employed. Indeed, a determination of whether a
violation of the No Contact Order occurred would stop after it
was determined that Fishler directed a communication toward a
person identified by the provision—it would not turn on the
substance of the communication or on its effect on the person
whatsoever. See McCullen, 573 U.S. at 479, 481.

¶52 Furthermore, the No Contact Order is substantially similar
to the injunction at issue in Towner v. Ridgway, 2008 UT 23, 182
P.3d 347, which our Supreme Court held passed First
Amendment muster. See id. ¶ 20. There, paragraph three of the
challenged civil stalking injunction enjoined the respondent
“from contacting [the petitioner], directly or indirectly through
any form of communication including written, oral, or electronic
means and restrain[ed] him from contacting [the petitioner’s]
family members through any of these means.” Id. (quotation
simplified). Paragraph four of the injunction directed that the
respondent was “free to post communications on electronic media
so long as the posting represents commentary on the substance of
political positions taken by [the petitioner], otherwise, [the
respondent] is enjoined from making comments directed at [the
petitioner] or his family that are designed to harass or annoy.” Id.
¶ 19 (quotation simplified). On appeal, the respondent argued
that paragraph four constituted “a content-based restriction on
his speech in violation of the First Amendment.” Id. Based on the
petitioner’s “concession that paragraph four merely repeats
paragraph three of the injunction” and that both provisions

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Ragsdale v. Fishler

merely enjoined the respondent from communicating to the
petitioner and his family and did not enjoin the respondent from
communicating about the petitioner to others, our Supreme Court
held that the injunction did not violate the First Amendment. Id.
¶ 20.

¶53 In substance, the No Contact Order is almost identical to
the injunction our Supreme Court affirmed in Towner. Indeed,
there is no meaningful distinction between the two. Both
provisions prohibited any communication, either direct or
indirect, from the respondent to the petitioner or other identified
individuals (the petitioner’s family members in Towner, and
individuals directly engaging with the ECA premises in this
case). 17 As with the provisions at issue in Towner, nothing in the
No Contact Order precluded Fishler from expressing his
opinions—political or otherwise—about the presence of ECA in
his neighborhood to others not identified by the No Contact
Order. And as discussed above, enforcement of this provision is
entirely independent of the message contained in the
communication. For these reasons, Towner is binding on this case,
and the No Contact Order therefore withstands Fishler’s First
Amendment challenge. 18

¶54 For these reasons, we affirm the No Contact Order the
district court entered against Fishler.

17. Fishler has not argued that the identified family members in
Towner are distinguishable in any meaningful manner from the
“others” identified by the No Contact Order. Indeed, his
argument on appeal does not specifically address that portion of
the No Contact Order.

18. Because Towner is binding, we do not engage in a more
fulsome intermediate scrutiny analysis.

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Ragsdale v. Fishler

B. The Personal Conduct Order

¶55 The other provision contained in the civil stalking
injunction is the Personal Conduct Order, which directs Fishler as
follows:

Do not stalk [Ragsdale]. This means you must not
follow, threaten, annoy, harass, or cause distress to
[Ragsdale]. For a legal definition of stalking, see
Utah Code 76-5-106.5.

As with the No Contact Order, the district court held that this
provision “is content-neutral because it does not draw any
distinction based on any message conveyed by” Fishler and that
the provision “does not burden more speech than necessary to
accomplish the goal of protecting [Ragsdale] from being stalked.”
We disagree with this analysis. Although certain actions enjoined
by this provision are not entitled to First Amendment protection,
other actions constitute expressive conduct, the prohibition of
which, in this context, does not withstand strict scrutiny.

¶56 In defining “stalking,” the Personal Conduct Order
identifies several actions: following, threatening, annoying,
harassing, and causing distress. As an initial matter, the First
Amendment protects only expressive conduct. See United States v.
O’Brien, 391 U.S. 367, 376 (1968) (stating that the “alleged
communicative element” of the conduct at issue in that case—
burning a selective service registration certificate—“is sufficient
to bring into play the First Amendment”). There is not a “limitless
variety of conduct [that] can be labeled ‘speech’ [just because] the
person engaging in the conduct intends thereby to express an
idea.” Id. Rather, the First Amendment protects conduct in which
“[a]n intent to convey a particularized message was present, and
in the surrounding circumstances the likelihood was great that the
message would be understood by those who viewed it.” Spence v.
Washington, 418 U.S. 405, 410–11 (1974). Here, in the context of the

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Ragsdale v. Fishler

Personal Conduct Order, the act of following Ragsdale cannot be
said to have a great likelihood of conveying a message that would
be understood by others. Accordingly, the prohibition against
following Ragsdale does not warrant any further First
Amendment scrutiny.

¶57 Similarly, true threats are a category of speech that has
historically fallen outside the bounds of First Amendment
protection. See Counterman v. Colorado, 600 U.S. 66, 74 (2023). “True
threats are serious expressions conveying that a speaker means to
commit an act of unlawful violence.” Id. They “subject individuals
to fear of violence and to the many kinds of disruption that fear
engenders.” Id. (quotation simplified). The Utah criminal code
defines harassment as “communicat[ing] a written or recorded
threat to commit a violent felony.” Utah Code Ann. § 76-5-106(2)
(LexisNexis Supp. 2023). This definition squarely aligns with the
definition of true threats. Thus, to the extent the Personal Conduct
Order’s prohibition of threatening or harassing Ragsdale falls
within the parameters of true threats, it too withstands Fishler’s
First Amendment challenge. 19

¶58 Lastly, we turn to the prohibition against annoying or
causing distress to Ragsdale. “Listeners’ reaction to speech is not
a content-neutral basis for regulation.” Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992). See United States v.
Playboy Ent. Group, Inc., 529 U.S. 803, 811–12 (2000) (holding that
a restriction is content-based if it “focuses only on the content of
the speech and the direct impact that speech has on its listeners”)
(emphasis in original; quotation otherwise simplified); United
States v. Cassidy, 814 F. Supp. 2d 574, 584 (D. Md. 2011)
(“Typically, a restriction is content-based if it regulates speech
based on the effect that speech has on an audience.”). And here,

19. Moreover, any threatening or harassing behavior that falls
short of these definitions may very well still be enjoined by the
injunction through the No Contact Order.

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Ragsdale v. Fishler

the prohibition on annoying and causing distress focuses solely
on the impact any speech or expressive conduct by Fishler would
have on Ragsdale—Ragsdale’s reaction is the only means by
which it may be determined whether what Fishler did annoyed or
caused distress. Accordingly, this prohibition is content-based.

¶59 Furthermore, the prohibition against annoying or causing
emotional distress to Ragsdale does not withstand strict scrutiny
because, in the context of this case, it is not the least restrictive
means of furthering “the state’s compelling interest in protecting
its citizens from threatening or harmful behavior.” Salt Lake City
v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997), superseded on
other grounds by statute as recognized in Baird v. Baird, 2014 UT 08,
322 P.3d 728. See Sable Communications of Cal., Inc. v. F.C.C., 492
U.S. 115, 126 (1989). In light of the No Contact Order, Fishler is
already enjoined from contacting Ragsdale in any manner either
directly or indirectly. The additional prohibition against annoying
or causing distress could potentially enjoin Fishler from talking
about Ragsdale (or ECA more generally) to others. For example,
any appearances Fishler might make before the local governing
authorities to complain about ECA’s presence in his
neighborhood could likely cause Ragsdale, as the owner of ECA,
emotional distress or would, at the very least, annoy her. Given
the facts of this case, the No Contact Order is sufficient to address
the complained-of course of conduct, and these additional
prohibitions in the Personal Conduct Order go beyond what is
necessary. See Towner v. Ridgway, 2008 UT 23, ¶ 20, 182 P.3d 347
(holding that the civil stalking injunction did not violate the First
Amendment because it enjoined the respondent from
communicating directly to the petitioner but did not enjoin him
from speaking about the petitioner).

¶60 We therefore remand this matter to the district court to
modify the Personal Conduct Order in a manner consistent with
this opinion.

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Ragsdale v. Fishler

C. The Proposed Provision

¶61 The district court rejected the following provision
proposed by Ragsdale:

[Fishler] shall take down the signs currently posted
on his property and refrain from posting any
additional signage on his property that he knows or
reasonably should know threatens, annoys,
harasses, communicates to, or otherwise causes
[Ragsdale] distress.

The court held that this proposed provision constituted a
content-based restriction on speech “because whether any
particular sign would be prohibited by the injunction cannot be
determined without reference to and evaluation of the content or
subject matter of the sign and, therefore, [it is] subject to strict
scrutiny.” The court further held that the provision did not
withstand strict scrutiny, particularly “given the other provisions
of the stalking injunction.”

¶62 On cross-appeal, Ragsdale argues that the court erred in
holding that the proposed provision constituted a content-based
restriction on speech. She asserts that the proposed provision is
content-neutral because the three signs currently on Fishler’s
property (two in the front yard and one in the back yard)
constitute a communication directed at Ragsdale and anyone else
on the ECA property. In support, she points to Fishler’s testimony
at the first evidentiary hearing. When asked why the yard signs
were “sort of in that small location there” and were not “really big
and in the middle of [his] yard,” Fishler responded, “Well, we
don’t want to disturb our other neighbors and be obtrusive to our
neighbors.” Ragsdale also points to the testimony of Fishler’s
wife, who disagreed with the assertion that only those coming
and going from the ECA property could see the signs, stating that
“[t]hey are visible to anybody who looks at them,” but she also

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Ragsdale v. Fishler

acknowledged that the signs “are more oriented to primarily
address the business.”

¶63 The phrasing of the proposed provision does not follow
Ragsdale’s argument. The provision indicates that the reason for
the removal of the signs is that they threaten, annoy, harass,
communicate to, or otherwise cause Ragsdale distress. As
concerns the prohibition against annoying or causing Ragsdale
distress, for the same reasons articulated in Part II.B. above, this
constitutes a content-based restriction on Fishler’s speech. 20

¶64 Moreover, as concerns the prohibition against
communicating to Ragsdale, the district court made no finding
regarding whether the signs were communications directed at
Ragsdale and the other identified persons. 21 It is telling that the
testimony to which Ragsdale points is from the first evidentiary
hearing, held before the prior judge, and that similar testimony
was not elicited at the second evidentiary hearing. 22 Following the

20. Because Ragsdale has not alternatively challenged the district
court’s conclusion that the proposed provision does not
withstand strict scrutiny, we end our analysis at the conclusion
that the proposed provision was content-based.

21. Additionally, the three signs that remain on Fishler’s
property—two suggesting that one can become “disabled” for
$10,000 per month and one stating, “DELIVER US FROM EVA”—
cannot be said to constitute true threats. See Counterman v.
Colorado, 600 U.S. 66, 74 (2023).

22. The district court did review the transcript from the first
evidentiary hearing and even referenced some of Fishler’s prior
testimony in its findings of fact and conclusions of law. But the
point remains that it does not appear that the issue of whether the
signs constituted direct communications to Ragsdale was at the
(continued…)

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Ragsdale v. Fishler

second evidentiary hearing, the court addressed the signs in the
larger context of the proposed provision—it does not appear that
the court was asked to make a specific finding regarding whether
the signs were communications directed at Ragsdale. Indeed, in
rejecting the provision, the court noted that “[b]y not enjoining
the posting of any particular signage,” it was not suggesting “that
the posting of a sign(s) cannot constitute stalking and/or that it is
permitted by the injunction.” In other words, the court indicated
that even without the inclusion of the proposed provision, it was
possible that certain signs might still be enjoined through the
provisions that ultimately made it into the civil stalking
injunction. But absent a finding that the signs currently on the
property violated the No Contact Order or the portions of the
Personal Conduct Order that withstand First Amendment
challenge, an order directing Fishler to remove the signs currently
on his property is inappropriate.

¶65 In sum, we affirm the inclusion of the No Contact Order in
the civil stalking injunction in its entirety as well as the district
court’s decision not to include the proposed provision regarding
yard signs. We remand the matter, however, for the district court
to make alterations to the Personal Conduct Order consistent with
this opinion.

III. Attorney Fees

¶66 The Utah Code provides that in the civil stalking injunction
context, “[a]fter a hearing with notice to the affected party, the
court may enter an order requiring any party to pay the costs of
the action, including reasonable attorney fees.” Utah Code Ann.
§ 78B-7-701(14) (LexisNexis 2022). In Ragsdale I, 2021 UT 29, 491
P.3d 835, our Supreme Court indicated that this statute grants
district courts “broad, discretionary authority over attorney fee

forefront of the second evidentiary hearing—as demonstrated by
the lack of similar testimony being elicited at the second hearing.

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Ragsdale v. Fishler

awards.” Id. ¶ 59 (quotation simplified). The Court then listed
several “nonexclusive” factors district courts should consider
when deciding whether to award attorney fees under this and
similarly-worded statutes:

(a) the reasonableness of the parties’ claims,
contentions, or defenses; (b) unnecessarily
prolonging litigation; (c) relative ability to bear the
financial burden; (d) result obtained by the litigation
and prevailing party concepts; and (e) whether a
party has acted in bad faith, vexatiously, wantonly,
or for oppressive reasons in the bringing or conduct
of the litigation.

Id. ¶ 60 (quotation simplified). See id. ¶ 61. The Court further
indicated that “it may be appropriate for a district court to award
fees to a petitioner when it would indemnify them from the costly,
complicated, and discretionary process of obtaining a civil
stalking injunction.” Id. ¶ 62 (quotation simplified). But an
attorney fees award “may not be appropriate if it imposes
financial hardship on a respondent or would be otherwise
inequitable.” Id.

¶67 Here, in denying Ragsdale’s request for attorney fees, the
district court analyzed each of these factors. First, the court
determined that both parties presented reasonable claims and
arguments, and that although Ragsdale ultimately prevailed,
Fishler’s legal arguments “were certainly not without merit.”
Second, “for substantially the same reasons,” the court found that
neither party unnecessarily prolonged the litigation, and instead
“both parties vigorously sought to protect their rights and
advocate for their respective legal positions.” Third, the court
stated it was “not persuaded that either party would suffer
unduly if forced to bear the financial burden” of their own
attorney fees, nor that either party was better positioned to bear
the other’s attorney fees. Fourth, the court determined that

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Ragsdale v. Fishler

Ragsdale was the prevailing party because she “unquestionably
and fully prevailed in the material relief she sought,” i.e.,
obtaining the civil stalking injunction. Finally, the court stated
that it had not been presented with any evidence suggesting that
Fishler “or his attorney ever acted in bad faith, vexatiously,
wantonly, or for oppressive reasons in their conduct of the
litigation,” and the court further noted that it had not personally
observed them acting in such a manner. To the contrary, the court
noted that all parties acted “professionally and civilly within the
litigation itself.” And although the court found Fishler’s
underlying course of conduct that resulted in the civil stalking
injunction to be “obsessive and unreasonable,” the court stated
that this behavior did not extend to the ensuing litigation. Based
on this analysis of the factors, the court concluded that “justice
and equity do not favor an award of fees and costs.”

¶68 Ragsdale argues that the district court should have found
more factors weighing in her favor. Alternatively, she argues that
even though the court found that four of the factors did not weigh
in either party’s favor, one factor—that she was the prevailing
party—weighed in her favor and thus the court abused its
discretion in not awarding her attorney fees.

¶69 The party asserting abuse of discretion bears the “heavy
burden” of showing that “no reasonable person would take the
view adopted by the trial court.” Pankhurst v. Pankhurst, 2022 UT
App 36, ¶ 13, 508 P.3d 612 (quotation simplified). See Gunn Hill
Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015 UT
App 261, ¶¶ 21, 24, 361 P.3d 703 (Orme, J., concurring, joined by
Toomey, J.) (stating that “standards of review really do matter”
and that under the abuse of discretion standard, appellate courts
must affirm cases even when other judges might have ruled
differently, so long as the district court’s decision is “within the
broad range of discretion entrusted to” it), cert. denied, 369 P.3d
451 (Utah 2016). Ragsdale has not satisfied this burden.

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Ragsdale v. Fishler

¶70 This matter presented multiple complicated legal issues,
several of which implicated the First Amendment—a particularly
intricate area of the law. Neither party’s legal positions lacked
merit, and although Ragsdale ultimately prevailed by obtaining a
civil stalking injunction, it was not unreasonable for the court to
decline to award attorney fees where both sides vehemently
defended their respective rights 23—particularly where in the
context of the litigation the parties were, by the district court’s
assessment, civil and professional and did not unnecessarily
prolong the litigation. In light of all this, we cannot say that the
district court’s denial of Ragsdale’s motion for an award of
attorney fees exceeded the bounds of reasonableness. 24

23. In addressing the factor of whether the litigation was
unnecessarily prolonged, the district court additionally noted that
“[i]t is certainly true that [Fishler] could have ceased his conduct,
but so too could [Ragsdale] have abandoned her efforts to enjoin
[Fishler].” Ragsdale takes issue with this statement, asserting that
the district court was equating Fishler’s nonexistent “right to
stalk” with her “right to protect herself from stalking under the
Stalking Statute.” But it is much more likely that the court was
referencing Fishler’s perceived First Amendment right to free
speech—it does not appear that Fishler ever asserted a “right to
stalk.”

24. Ragsdale also seeks an award of attorney fees reasonably
incurred on appeal. “Generally, when a party who received
attorney fees below prevails on appeal, the party is also entitled
to fees reasonably incurred on appeal.” Fadel v. Deseret First Credit
Union, 2017 UT App 165, ¶ 38, 405 P.3d 807 (quotation simplified),
cert. denied, 409 P.3d 1047 (Utah 2017). But because Ragsdale was
denied attorney fees below—which denial we affirm on appeal—
we deny her request.

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Ragsdale v. Fishler

CONCLUSION

¶71 The district court did not err in concluding that Fishler’s
course of conduct would cause a reasonable person in Ragsdale’s
circumstances to suffer emotional distress. The No Contact Order
does not violate the First Amendment, and the district court did
not err in rejecting on First Amendment grounds the proposed
provision regarding yard signs. But because part of the Personal
Conduct Order is content-based and does not withstand strict
scrutiny, we reverse and remand the matter so that the court may
modify that provision consistent with this opinion. Lastly, the
court did not abuse its discretion when it denied Ragsdale’s
motion for attorney fees.

¶72 Affirmed in part, and reversed and remanded in part.

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