Stalking Statute Violates First Amendment

The District of Columbia Court of Appeals sitting en banc has reversed a civil protection order based on stalking, holding that the conduct was protected by the First Amendment

In this case, the Superior Court found that there was good cause to believe that Lauren Mashaud, a married man, stalked Christopher Boone when he truthfully revealed to Boone’s family, friends, and colleagues that Boone had an affair with Mashaud’s wife. Mashaud now appeals. Because Mashaud’s speech was constitutionally protected activity—i.e., it does not fit within any of the categories outside of the First Amendment’s protections—we conclude that he did not stalk Boone. We therefore reverse.

From the majority opinion

This appeal requires us to consider whether the District’s stalking statute can be reconciled with the First Amendment. That statute makes it a criminal offense to engage in a course of conduct—including two or more “communicat[ions] to or about another individual”—that one knows or should know would reasonably cause another to suffer emotional distress. D.C. Code §§ 22-3132(8)(A), -3133. By its terms, it restricts all manner of speech, without regard to its truth or falsity, and without regard to whether it is of public or purely private concern. The constitutional problems with the statute are glaring.

The conduct at issues involved emails to Boone’s colleagues, contact to people who “liked” Facebook posts and a blog.

Distress in not enough

Consider the perfectly ordinary and socially valuable speech that may put others in serious emotional distress, but that the stalking statute’s plain terms nonetheless prohibit (if repeated). Doctors deliver life-shattering prognoses that surely send reasonable people to suffer emotional tailspins of distress. Spouses knowingly inflict emotional distress by revealing longstanding paramours and demanding divorces. Police officers deliver news of loved ones having been killed. Judges pronounce death sentences. Employers tell staff that they are fired. They all know, or should know, the extraordinary distress their messages bring, and so fall within the statute’s prohibitions.

Distressing speech is an important and often valuable part of life. A statute that prohibits speech indiscriminately based solely on its propensity for causing such distress is a constitutional nonstarter. What’s more, the statute’s broad scope applies not only to speech concerning purely private matters, but also to communications on matters of public concern: speech that “occupies the highest rung of the hierarchy of First Amendment values.”

The statute was not saved by its savings clause.

The decision was not unanimous except as to the judgment

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, EASTERLY, MCLEESE, DEAHL, HOWARD, ALIKHAN, and SHANKER, ∗ Associate Judges.

Opinion for the court by Associate Judge DEAHL, with whom Chief Judge BLACKBURNE-RIGSBY and Associate Judges BECKWITH, EASTERLY, and SHANKER join in full, and Associate Judge HOWARD joins as to all but Part III.C.

Opinion by Associate Judge MCLEESE, with whom Associate Judge ALIKHAN joins, dissenting in part and concurring in the judgment, at page 71.

(Mike Frisch)