The words and, but, and or are conjunctions. In case you’ve forgotten, Schoolhouse Rock taught many of us in grade school that conjunctions link words, phrases, and clauses together to form sentences. But in case you were sleeping that day in class, the Minnesota Court of Appeals’ decision from January 10, 2022 which involved a dispute between ex-lovers and hinged on the disjunctive conjunction, “or,” serves as a great crash course.
Breana and Matthew Borth were previously married. Before their divorce, Breana sent Matthew a partially-nude photo on the social media platform, Snapchat. Snapchat allows you to send pictures and videos that automatically disappear 10 seconds after the recipient views the message but with the caveat that the recipient may take a screenshot of the picture if s/he wants to hold on to the image for later viewing. That is what happened here. Matthew sent a screenshot of the picture to Breana’s current significant other and used it to attempt to blackmail Breana into a custody arrangement.
Breana filed a petition for a harassment restraining order (“HRO”) which was initially granted ex parte. After a full hearing, however, the district court dismissed Breana’s petition, holding the petition lacked the requisite intent required for a harassment restraining order under Minnesota law.
Minnesota’s law governing harassment restraining orders permits for orders to be granted on a “single incident of nonconsensual dissemination of private sexual images,” or for “repeated incidents of intrusive or unwanted acts, words or gestures.” Minn. Stat. sec. 609.748(1)(a). But the question here is whether qualifying language later in the statute (only if “intended to have a substantial adverse effect on the safety, security or privacy of another”) applied to the first phrase, the second phrase, or both. The district court acknowledged that sending a private sexual image to a third-party could serve as a basis for an HRO, but the court interpreted the statute to require that the dissemination “has to be done with the intention of having a substantial effect on the safety, security, or privacy of another.”
Breana appealed the court’s denial of the HRO. The crux for analysis on appeal turned on whether the language “that have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target” applied only to the “repeated incidents” language, or whether it also modified the “single incident” language found in subdivision 1(a)(1).
Breana argued the “substantial adverse effect” language does not modify the “single incident” conduct – just the “repeated incidents.” Citing to the rules of grammar from The Chicago Manual of Style, the court agreed with Breana, reasoning that since the types of conduct are separated by the disjunctive conjunction “or,” the qualifying phrase cannot be interpreted to modify the “single incident” phrase, only the “repeated incidents” (plural phrase) thereafter. In simpler terms, “or” is used in the statute as a function word to indicate mutually exclusive alternatives.
Bottom Line
The holding in this harassment case demonstrates that grammar matters, just maybe not for the reasons you thought. A good reminder that policies, contracts and other legal documents need to be properly drafted while remembering our disjunctive “or.”