This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).
STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1423
David Rucki, et al.,
Respondents,
vs.
Deirdre Elise Evavold,
Appellant.
Filed July 15, 2019
Affirmed
Bratvold, Judge
Dakota County District Court
File No. 19AV-CV-17-1950
Lisa M. Elliott, Elliott Law Offices, P.A., Minneapolis, Minnesota (for respondents)
Paul A. Godfread, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis, Minnesota (for
appellant)
Considered and decided by Ross, Presiding Judge; Bratvold, Judge; and Klaphake,
Judge. *
UNPUBLISHED OPINION
BRATVOLD, Judge
Appellant challenges the district court’s two-year harassment restraining order
(HRO) issued against her, arguing that the HRO was unconstitutional under the First

*

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

 Amendment as applied to the facts of this case. Because we conclude that the HRO restrains
unprotected speech, we affirm.
FACTS
Relevant background to this case has been previously summarized in prior opinions
of this court. Respondent David Rucki and non-party Sandra Grazzini-Rucki were married
and had five children together. See State v. Evavold, No. A17-0200, 2017 WL 4583235,
at *1 (Minn. App. Oct. 16, 2017), review denied (Minn. Jan. 24, 2018). They divorced, and
a district court order awarded temporary custody of all five children to their paternal aunt.
Id. On the same day the temporary custody order was issued, Grazzini-Rucki drove two of
their children to appellant Deirdre Elise Evavold’s home. Id. Grazzini-Rucki and Evavold
then took the two children to another home, where they stayed for two years until law
enforcement discovered them. Id. In connection with these events, the state charged
Evavold with six counts of deprivation of parental rights, and a jury found her guilty of all
six counts. Id. Evavold appealed, and this court affirmed her conviction in October 2017.
Id. 1
Relevant to the HRO challenged on appeal, Evavold edits and contributes to an
internet blog. The district court found that Evavold has the ability to edit any post on the
blog. Evavold’s blog has commented on criminal and civil cases involving herself and
David Rucki and his family. Evavold’s blog also has posted general political commentary.

1

A jury also found Grazzini-Rucki guilty of six counts of deprivation of parental rights.
State v. Grazzini-Rucki, No. A16-1997, 2017 WL 5077562 (Minn. App. Nov. 6, 2017),
review denied (Minn. Jan. 16, 2018). She appealed, and this court affirmed the guilty
verdicts but reversed and remanded for resentencing. Id. at *11.
2

 One of the conditions of Evavold’s probation was that “she have no contact” with the Rucki
children and that she was prohibited “from referring to the children on social media.”
On July 27, 2017, respondents David Rucki and Samantha Rucki filed an affidavit,
signed by David Rucki, and a petition for an HRO against Evavold on behalf of themselves
and David Rucki’s three minor children. Rucki’s affidavit stated that Evavold had
“engaged in online harassment” of his family by “including false allegations, photos, and
identifying information” in her blog. Rucki also averred that Evavold had posted
“information about my family, photos of my home, myself and other members of my
family,” and “ma[d]e allegations that are false but may incite others against me.” Rucki
also averred that “[m]y children are frightened for their safety and feel their privacy has
been violated.” The petition requested that Evavold “immediately cease all social media,
internet or other mentions of me, my family, children and home.”
The next day, the district court signed and filed an ex parte temporary harassment
restraining order (THRO) after finding that Evavold had “[m]ade threats to” respondents
and the harassment had “a substantial adverse effect on [respondents’] safety, security, or
privacy.” The THRO ordered Evavold “not name any member of the Rucki Family in any
blog posting, social media posting, or internet posting.” The order was effective for two
years, until July 27, 2019. The THRO stated: “[Evavold] can ask the court to change or
vacate the Restraining Order by filing a Request for Hearing within 20 days of the date of
service of the petition.”

3

 On August 24, 2017, Evavold filed a motion to vacate the THRO. The district court
initially scheduled a hearing for September 2017. The hearing was subsequently continued
twice, once because Evavold did not serve opposing counsel with her motion.
Respondents filed an emergency motion in December 2017, asserting that a new
post on Evavold’s blog violated the THRO. Among other things, the post stated that “David
Rucki has falsely reported a crime” and included Rucki’s home address. In January 2018,
the district court granted the emergency motion and ordered Evavold to remove the
December blog post.
Respondents filed a second emergency motion in February 2018 and alleged
additional violations of the THRO. The motion also asked the court to hold Evavold in
“constructive civil contempt” because Evavold “fail[ed] to remove” the December blog
post in its entirety. Respondents’ motion included an affidavit that attached copies of 18
recent posts from Evavold’s blog. The attached posts made numerous allegations against
Rucki and accused him of various criminal acts. The posts also included numerous links to
other websites that referenced the Rucki family, including the children.
The district court conducted an evidentiary hearing. Respondents relied on the
affidavit and copies of the 18 posts from Evavold’s blog. Evavold testified that she
“removed [Rucki’s] address” from the December post but admitted she did not otherwise
change the post. In a written order, the district court found Evavold “is in constructive civil
contempt” and instructed her to remove the 18 posts. Evavold did not comply with the
order, and the district court subsequently issued a warrant for her arrest. She was taken into

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 custody, but was conditionally released a few days later after the district court found that
she was attempting to comply with the court’s order.
Evavold filed a second motion to vacate the THRO in May 2018, arguing that the
THRO was an “unconstitutional prior restraint” and in violation of the First Amendment.
In a written order, the district court denied Evavold’s motion to vacate and affirmed the
THRO. Evavold appeals.
DECISION
Evavold argues that the district court erred as a matter of law because it denied her
“motion to vacate the order and First Amendment based objections.” Evavold contends
that her blog posts are constitutionally protected speech and argues that the HRO is
unconstitutional as applied to the facts of her case. 2 Whether or not an HRO is
constitutional is a question of law that we review de novo. See Newstrand v. Arend, 869
N.W.2d 681, 687 (Minn. App. 2015) (“[Appellate courts] review as-applied challenges to
the constitutionality of statutes de novo.”), review denied (Minn. Dec. 15, 2015). Evavold
only raises an as-applied challenge on appeal.
Initially, respondents argue that the district court should have rejected Evavold’s
motion to vacate as untimely. Because the district court did not address the timeliness of
Evavold’s motion in its written order affirming the HRO and respondents did not file a

2

In this opinion, we refer to the THRO issued against Evavold as an HRO. When an
evidentiary hearing is not timely requested after the issuance of a THRO, the THRO
“becomes an ex parte HRO . . . and remains in effect for the period set forth in the ex parte
THRO.” Fiduciary Found., LLC ex rel. Rothfusz v. Brown, 834 N.W.2d 756, 762 (Minn.
App. 2013), review denied (Minn. Sept. 17, 2013).
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 notice of related appeal, this issue is not properly before us. Respondents also argue that
Evavold failed to provide required notice to the attorney general’s office to proceed with
her constitutional challenge. See Minn. R. Civ. App. P. 144 (providing that a party
challenging the constitutionality of a legislative act shall give notice to the attorney general
“within time to afford an opportunity to intervene”). No notice, however, is required for an
as-applied challenge. See Welsh v. Johnson, 508 N.W.2d 212, 215 n.1 (Minn. App. 1993)
(providing that appellant’s lack of notice to the attorney general of a facial constitutional
challenge limited him to “arguing the constitutionality of the statute on an ‘as applied’
basis”); see generally Altendorfer v. Jandric, Inc., 199 N.W.2d 812, 817 (Minn. 1972)
(noting that an as-applied constitutional challenge “may not require” notice to the attorney
general under Minn. R. Civ. App. P. 144). We therefore proceed to consider Evavold’s
constitutional challenge on the merits.
In Minnesota, a district court may issue an HRO if it finds that there are reasonable
grounds to believe that a person has engaged in harassment. Minn. Stat. § 609.748, subd.
5(b)(3) (2018). The HRO statute defines harassment, in relevant part, as “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. 1 (a)(1) (2018).
The United States and Minnesota Constitutions guarantee the right to free speech.
U.S. Const. amend. I; Minn. Const. art. I, § 3. However, the right to free speech is not
absolute, and certain categories of speech are unprotected. See R.A.V. v. City of St. Paul,
505 U.S. 377, 383, 112 S. Ct. 2538, 2543 (1992). In Dunham v. Roer, we held that the
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 HRO statute does not violate the First Amendment because it restricts three categories of
unprotected speech: (1) “fighting words,” which are “likely to cause the average addressee
to fight or protect one’s own safety, security, or privacy”; (2) “true threats,” which evidence
“an intent to commit an act of unlawful violence against one’s safety, security or privacy”;
and (3) “speech or conduct that is intended to have a substantial adverse effect, i.e., is in
violation of one’s right to privacy.” 708 N.W.2d 552, 565-66 (Minn. App. 2006), review
denied (Minn. Mar. 28, 2006).
Here, the district court denied Evavold’s motion to vacate the HRO after finding
that Evavold’s conditions of probation were “no contact” with the Rucki children, and that
“she was prohibited from referring to the children on social media.” The district court
then found that Evavold “violated the terms of her probation by posting . . . photos and
information about the Rucki family. These postings include many references
about . . . David Rucki, and his children.” The district court also found that Evavold “has
effective control over the postings on the [Evavold’s] blog.” The court finally found that
Evavold’s conduct in making her posts was “intended to terrify, threaten and invade the
privacy of [Rucki] and his minor children,” and concluded that Evavold’s conduct was
“harassment most evil.”
Evavold does not challenge any of district court’s findings of fact. She instead
makes three arguments, which we will address in turn. First, Evavold argues that her blog
posts about the Rucki family do not constitute harassment because the posts do not fall
within any of Dunham’s three categories of unprotected speech.

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 The district court’s order does not include a detailed constitutional analysis or
specifically determine whether the blog was unprotected speech. Instead, the district court
stated it considered the constitutional issues raised by Evavold and “finds no merit.” But
“error is never presumed” on appeal. See Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949).
And, although the district court did not offer a detailed written analysis, the district court
did find that Evavold intended her speech to “terrify,” “threaten,” and “invade the privacy
of [Rucki] and his minor children.” Under Dunham, HROs may restrict invasions of
privacy. See 708 N.W.2d at 565-66.
Still, Evavold argues that “the record does not suggest that there was a substantial
privacy invasion.” 3 We disagree. The record contains numerous posts from Evavold’s blog
about the Rucki family, including allegations of abuse within the Rucki family. One blog
post accused Rucki of several criminal offenses and provided the address for the Rucki
family’s home. The record supports the district court’s conclusion that Evavold’s conduct
was unprotected harassment.
Second, Evavold contends that her blog is “directed to the public at large” as
opposed to “one-on-one speech.” To support her claim, Evavold cites to two United States
Supreme Court cases. See New York v. Ferber, 458 U.S. 747, 748, 102 S. Ct. 3348, 3350

3

Evavold also cites to an unpublished case from this court to support her claim that her
posts cannot be invasions of privacy. “Unpublished opinions are not precedential, but they
may have persuasive value.” See State v. Ellis-Strong, 899 N.W.2d 531, 537 (Minn. App.
2017) (citing Minn. Stat. § 480A.08, subd. 3 (2016)). We conclude this unpublished case
is not persuasive because the HRO petitioner failed to argue in district court that online
posts invaded his privacy, and therefore waived the argument on appeal. See Olson v.
LaBrie, No. A11-558, 2012 WL 426585, at *1-2 (Minn. App. Feb. 13. 2012) (“[W]e
conclude that appellant waived his privacy argument.”), review denied (Apr. 17, 2012).
8

 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 601, 93 S. Ct. 2908, 2910 (1973). But these
cases refer to the overbreadth doctrine as it relates to enacted statutes that unnecessarily
restrict speech. See Ferber, 458 U.S. at 748, 102 S. Ct. at 3350; Broadrick, 413 U.S. at
601, 93 S. Ct. at 2910. These opinions do not establish a special First Amendment status
for publicly-viewable speech. And the fact that speech is posted on the internet “provide[s]
no basis for qualifying the level of First Amendment scrutiny.” Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 2344 (1997).
Third, Evavold argues that the HRO was an “unconstitutional prior restraint because
it prohibited the publication on the internet of any content referring to any of the Rucki
family regardless of whether it was harassing and prior to its publication.” A primary
purpose of the First Amendment is “to prevent previous restraints upon publication.” Near
v. Minn. ex rel. Olson, 283 U.S. 697, 713, 51 S. Ct. 625, 630 (1931). However, the general
rule against prior restraints on speech is subject to certain exceptions, including time, place,
and manner restrictions. United States v. Kistner, 68 F.3d 218, 221 n.7 (8th Cir. 1995).
The HRO did not restrict Evavold from expressing her ideas in general—it restricted
her from naming “any member of the Rucki Family” in an “internet posting.” In the context
of an order for protection (OFP), the Minnesota Supreme Court held that a similar limited
restriction on speech was not a prior restraint. See Rew v. Bergstrom, 845 N.W.2d 764,
776-77 (Minn. 2014). In Rew, the supreme court upheld the constitutionality of an OFP
that prevented appellant from communicating with his ex-wife and minor children. See id.
The court reasoned, first, “an OFP does not prohibit a person from expressing his or her
ideas; rather, it requires a person to express those ideas to people other than those protected
9

 by the OFP.” Id. at 777. Second, the court held that OFPs are not based on the content of
speech, but a person’s “prior unlawful conduct.” Id.
We conclude that Rew guides our analysis of this HRO. See id.; Anderson v. Lake,
536 N.W.2d 909, 911 (Minn. App. 1995) (stating that caselaw under the Minnesota
Domestic Abuse Act may be recognized in interpreting the HRO statute). Like the OFP in
Rew, the HRO issued against Evavold restricted her communications about particular
individuals based on her prior conduct towards those individuals. While the supreme court
in Rew remanded for additional factual findings, id. at 784-85, Evavold makes no challenge
to the adequacy of the district court’s findings in this appeal. Thus, based on Rew, we
conclude that the HRO is not an unconstitutional prior restraint on Evavold’s speech.
In sum, we agree with the district court that Evavold’s arguments on the
constitutionality of the HRO fail on the merits.
Affirmed.

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