Joel Leslie Wells, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0108

Joel Leslie Wells,
Appellant,

vs.

Jeffrey Fischbach,
Respondent.

Filed August 23, 2021
Affirmed
Jesson, Judge

Dakota County District Court
File No. 19AV-CV-17-1678

Daniel L. Gerdts, Minneapolis, Minnesota (for appellant)

Jared M. Reams, Eckland & Blando LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Pres iding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Joel Wells sought a harassment restraining order after respondent Jeffrey
Fischbach contacted Wells’s pr obation officer and authored so cial media posts in which
Fischbach complained about the Minnesota court system’s handling of past cases involving
Wells. The district court denied the petition. Wells appeals, arguing that Fischbach’s

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contacts with law enforcement were objectively unreasonable and that Fischbach’s online
posts were defamatory and therefore unprotected speech. We affirm.
FACTS
Appellant Joel Wells was convicted for possession of child por nography in 2003.
Wells was charged again with possession of child pornography in 2007. When charged in
2007, Wells initially claimed that he was not aware of the illicit files on his computer and
asserted that they were planted there. In an attempt to pr ove this, Wells hired respondent
Jeffrey Fischbach, a forensic technologist based in California, to perform an examination.
Fischbach did not find evidence to support Wells’s theory. Wells ultimately pleaded guilty,
was convicted for possession of child por nography and sentenced to 84 months’
imprisonment.
After serving his prison sentence, Wells demanded that Fischbach return Wells’s
“file” as well as a portion of the payment Fischbach received in exchange for his services.
Fischbach believed that the “file” in ques tion was the pornographic material removed by
the FBI. Fischbach simply told Wells that those files were in the FBI’s possession and that
they would remain there.
History of Disputes
When Wells did not receive the disputed file s, he sued Fischbach for the return of
both the files and his payment for forensic services. The matter ultimately settled, but
during the process Wells allegedly commented that “he was aware [Fischbach] had moved
homes during his incarceration, that [Fis chbach’s] children had grown, and that
[Fischbach’s] 11-year old daughter was a ‘real cutie.’” And shortly after a hearing in the

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matter, Fischbach received mail from Wells at his home address, a location that Fischbach
never disclosed to Wells. This unsolicited mail, in tandem with the “real cutie” comment
about his daughter, made Fischbach believe th at Wells was a threat to his family.
Additionally during this time, Fischbach received several unwanted emails from Wells.
Because Fischbach knew that a condition of Wells’s release from prison was a
prohibition against using a computer or having online access without permission from the
U.S. Probation Office, Fischbach believed that Wells was violating his probation terms.
Fischbach contacted both the Eagan and Los Angeles police departments by email to report
the threat. He also reported the possible violation to Wells’s probation officer.
Around this time, Fischbach sought a ha rassment restraining order (HRO) against
Wells based upon the perceived threat. He withdrew the petition initially filed in
Minnesota, but then filed a petition in California. A California court dismissed the action
shortly thereafter. Separately, Wells sought an HRO in a Minnesota district court against
Fischbach but that petition was dismissed pursu ant to a settlement agreement reached in
March 2017. Both parties later claimed that the other breached the settlement agreement.
The Present HRO Proceeding
The underlying bases for the HRO at issu e here began while the other legal actions
were ongoing. During the various lega l challenges between Fischbach and Wells,
Fischbach began to post to social media a nd his blog to complain primarily about the
Minnesota legal system and how it handled Wells’s cases. Du e to these posts, as well as
Fischbach’s contacts with the Los Angeles Police Department, Eagan Police Department,
and his probation officer, Wells filed a pe tition for an HRO in Minnesota against

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Fischbach.1 Wells asked the district court for a two-year ban on Fischbach contacting
Wells or visiting his Eagan home.
At a hearing on his HRO petition, Wells te stified that after Fischbach posted the
social media messages and blog post online, none of his colle ge classmates would sit by
him.2 He also said that there were many instances of his home being vandalized, including
bricks thrown through his windows, which he attributed to the publicity from Fischbach’s
blog. Wells further explained that he regained his internet privileges in December 2016—
months before his letter and emails to Fisc hbach which raised the suspicions about a
probation violation. Overall, Wells stated th at he was worried that Fischbach was trying
to get him back in prison based on false accusations.
Fischbach’s social media posts were centra l evidence introduced at the hearing.
These included social media posts from Fischbach’s social media accounts, as well as his
blog. Fischbach testified that the posts were about his court history with Wells, and that
his motivation for the posts was to “evolve [Minnesota’s] laws to protect children.” Of the
64 pages of exhibits of social media posts admitted to the di strict court, Fischbach only
typed Wells’s name once. None of the posts tagged Wells or otherwis e were directed at
him. But in one screed Fischbach shared an image of a district court order that included

1 This matter was previously before us concerning the district court’s decision to deny the
HRO due to a lack of personal jurisdiction ov er Fischbach. Wells v. Fischbach ,
No. A18-0063, 2018 WL 6442174, at *1 (Minn. App. Dec. 10, 2018). We reversed and
remanded after concluding that Wells made a prima facie showing that the district court
had personal jurisdiction. Id. at *4.
2 Following his release from prison, Wells a ttended community college. In one class
assignment, the instructor asked classmates to search each other online—a search which
lead classmates to Fischbach’s blog, according to Wells.

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Wells’s name and address. A blog post fu rther compiled information from several news
articles and court documents about Wells’s c onvictions. Fischbach testified about his
belief that Wells was violating his probation, as well as the process he took to contact law
enforcement in order to reach the probation officer.
The district court denied the HRO for tw o reasons. First, the court found that
contacting law enforcement was objectively re asonable conduct by Fischbach, which did
not constitute harassment. Second, because the posts by Fischbach about Wells were all
derived from public documents, the district court determined that the posts were protected
by the First Amendment, and therefore did not constitute harassment.
Wells appeals.
DECISION
Wells claims that the district court e rred in denying his petition for an HRO by
(1) determining that it was objectively re asonable for Fischbach to contact law
enforcement; and (2) concluding that Fisc hbach’s posts were protected by the First
Amendment. We review the de nial of a petition for an HRO for an abuse of discretion.
Kush v. Mathison , 683 N.W.2d 841, 84 3 (Minn. App. 2004), review denied (Minn.
Sept. 29, 2004). A district court abuses its discretion if it makes findings that are
unsupported by the evidence or improperly applies the law. State v. Underdahl,
767 N.W.2d 677, 684 (Minn. 2009). We revi ew the district court’s factual findings for
clear error and defer to its findings regarding witness credibility, Kush, 683 N.W.2d at 843–
44, but we review de novo the district court’s legal conclusion, such as whether the facts

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found satisfy the elemen ts of harassment. Peterson v. Johnson , 755 N.W.2d 758, 761
(Minn. App. 2008).
I. The district court properly conc luded that Fischbach did not commit
harassment when he cont acted law enforcement be cause his conduct was
objectively reasonable.

In order to prove that harassment occurred, 3 an applicant must prove both
(1) objectively unreasonable intent or conduc t on the part of the harasser; and (2) an
objectively reasonable belief that the respondent engaged in harassment on the part of the
person subject to harassment. Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App. 2006),
review denied (Minn. Mar. 28, 2006). In Peterson, we examined whether someone calling
the police to report a possibl e child-safety-seat violation was objectively unreasonable
conduct. 755 N.W.2d at 765. We held that, generally, contacting the police did not amount
to harassment, highlighting th e public policy that to “re port[] violations of law ( or even
possible violations of law ) [is] a useful means of promo ting public safety, and citizens
should not be deterred from making good-faith reports.” Id. (emphasis added). And should
a petitioner attempt to prove that a report to law enforcement is an instance of harassment,
a district court “must make sufficiently specific findings of an improper intent” to conclude
that the conduct is objectively unreasonable.4 Id. at 766.

3 Harassment is defined as eith er a single act of physical or sexual assault or “repeated
incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse
effect or are intended to have a substantial adverse effect on the safety, security, or
privacy of another.” Minn. Stat. § 609.748, subd. l(a)(l) (2020).
4 Wells claims that the district court did not find “sufficiently specific facts,” and instead
“rested its entire 3-paragraph analysis on whether Fischbach’s complaint about annoying
emails might constitute harassment.” But th at is not true. The bases for the HRO
application were Fischbach’s phone calls, ema ils, and other reports to the police, all of

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Here, the district court compared Fischbach’s contacts with law enforcement about
Wells’s possible probation violation to the phone calls in Peterson and found that they had
similar intent to prevent wrongdoing, and th erefore the contact was presumptively valid.
Further, the district court found that Fisc hbach contacted law enforcement “only after
multiple concerning contacts with [Wells] whereby [Fisc hbach] believed that [Wells]
might be in violation of the law.” The dist rict court then determ ined that Fischbach’s
contact with law enforcement was objectively reasonable conduct. Considering the emails
to law enforcement and Wells’s probation officer, the cont acts between Fischbach and
Wells, as well as Fischbach’s testimony regarding his motive for contacting law
enforcement, we conclude that the record supports the district court’s determination.
Still, Wells argues that Fischbach’s contact s with law enforcement were not made
in good faith because he knew his reports were false. But the findings regarding
Fischbach’s motives were based on the district court’s credibility determination, to which
we must defer.5 Kush, 683 N.W.2d at 843-44. Here, the district court found that Fischbach

which were addressed by the district court. While Wells may have preferred a longer facts
section, the district court is only required to find “sufficiently sp ecific facts,” of an
improper purpose, not facts ad nauseam. Peterson, 755 N.W.2d at 766.
5 Wells also claims that the district court erred because some of the factual findings are not
in chronological order, such as which law en forcement officer Fischbach contacted first.
We reject Wells’s claims on this point for two reasons. First, on this record, the relevant
findings simply are not clearly erroneous. See Vangsness v. Vangsness, 607 N.W.2d 468,
472 (Minn. App. 2000) (noting that a district court’s findings of fact are clearly erroneous
if the reviewing court is left with the defin ite and firm conviction that a mistake has been
made, and that, when addressi ng whether a district court’s findings of fact are clearly
erroneous, an appellate court both “views the record in the light most favorable to the trial
court’s findings[,]” and “defer[s] to [the district court’s] court credibility determinations”).
Second, any purported error in the chronolo gical order of these events was clearly
immaterial to the district court’s decision. Thus, even if the findings Wells challenges are

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had a reasonable and good-faith belief that Wells violated his probation when he contacted
law enforcement. We will not upset that finding.
In sum, because the district court properly applied the law and because its findings
of fact are not clearly erroneous, it did not abuse its discretion when concluding that
Fischbach’s contacts with law enforcement were objectively reasonable conduct.
II. The district court did not abuse its disc retion by concluding that the social
media posts did not constitute harassment.

Next, Wells argues that the district c ourt erred by concl uding that because
Fischbach’s statements and social media posts were protected by the First Amendment they
did not constitute harassment.
The United States and Minnesota Constitutio ns guarantee the right to free speech.
U.S. Const. amend. I; Minn. Const. art. I, § 3. But this right is not unlimited. Dunham,
708 N.W.2d at 562 (Minn. App. 2006). In the context of HROs, the Minnesota Supreme
Court has held that an order for protection proscribing communication with a person is not
a prior restraint because it does not prohibit a person from expressing ideas in general, but
rather narrowly prohibits the expression of those ideas to the specific person protected by
the order. Rew v. Bergstrom, 845 N.W.2d 764, 77 7 (Minn. 2014). Further, speech that
communicates readily available public information is protected speech. Okla. Publ’g
Co. v. Dist. Court, 430 U.S. 308, 310, 97 S. Ct. 1045, 1046 (1977). These First Amendment

clearly erroneous, we would still have to igno re any error in those findings as harmless.
See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).

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principles apply to online speech just as much as any other form of speech. Reno v. Am.
Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 2344 (1997).
Here, the district court c oncluded that the posts did not constitute harassment
because they reiterated readily available information, including Wells’s name and address,
and the comments never urged others to target Wells. The evidence supports the district
court’s assessment. Only one of the social media posts mentions Wells’s name. And
although one of Fischbach ’s blog posts—titled “How a Twice-Convicted Pedophile
Brought Minnesota Justice to His Knees”—mentioned Wells by name, that post generally
sums up Wells’s criminal history. This blog post did not include any other private personal
information, relied on news articles and other publicly available information, and did not
demand action against Wells from readers. B ecause the posts were derived from readily
available public information, the posts are prot ected speech, and the district court did not
err by concluding the same. Okla. Publ’g Co., 430 U.S. at 310, 97 S. Ct. at 1046.
To convince us otherwise, Wells argues th at Fischbach’s posts were defamatory and
could not be protected speech. In particula r, he points to the reference to Wells as a
“pedophile.” But the district court implicitly rejected this argument because Wells’s two
convictions for possessing child pornography are public information. The record supports
that conclusion. And further, this is not a defamation case. Wells did not prove that any
statement was false or defamatory before the district court, and it would be inappropriate
to begin that fact finding on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)
(stating that an appellate court will generally not consider matters not presented to and
considered by the district court).

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Because Fischbach’s speech was not harassment, and the district court did not err
by finding Fischbach’s speech to be protected by the Fi rst Amendment, denying an HRO
on this reasoning was not an abuse of discretion.
Affirmed.