The DC Court of Appeals in Mashaud v. Boone decided on August 12, 2021, addressed and analyzed the First Amendment defense against the DC Stalking Statute.
Factually, the trial court had entered a civil protection order (CPO) against appellant Mashaud based on evidence at trial establishing that the appellant had stalked Boone by sending emails, and Facebook messages to Boone’s coworkers, family, and friends revealing that Boone had engaged in an extramarital affair with his wife.
Mashuad on appeal essentially argued that his conduct and technically the speech was protected by the First Amendment.
The DC Stalking Statute in relevant parts provides:
It is unlawful for a person to purposefully engage in a course of conduct directed at a specific individual:
(1) With the intent to cause that individual to:
- Fear for his or her safety or the safety of another person;
- Feel seriously alarmed, disturbed, or frightened; or
- Suffer emotional distress;
(2) That the person knows would cause that individual reasonably to:
- Fear for his or her safety or the safety of another person;
- Feel seriously alarmed, disturbed, or frightened; or
- Suffer emotional distress; or
(3) That the person should have known would cause a reasonable person in the individual’s circumstances to:
- Fear for his or her safety or the safety of another person;
- Feel seriously alarmed, disturbed, or frightened; or
- Suffer emotional distress.
(4) This section does not apply to constitutionally protected activity.
Mashaud essentially contended that the emails to the Boone’s firm, the Facebook messages, and the blog posts — were all constitutionally protected and thus do not fall under the Statute.
The Court of Appeals had not previously defined or expounded on what constitutes a constitutionally protected activity. Generally, government may not criminalize any speech except for those that fall under existing, well-established First Amendment exceptions: libel, threats, or obscenity.
The trial court had ruled erroneously that because the communications in question had all involved matters of purely private rather than public concern – such was not constitutionally protected.
The Supreme Court has however differentiated between matters of public and private concerns in that matters of public concern warrants heightened protection. However, speech does not lose protection because it is purely private. That is, communication does not lose First Amendment protection merely because it discusses matters of private rather than public concern.
The Court of Appeals remanded the matter for the trial court to consider and evaluate whether the evidence proved stalking given that speech about matters of private concern may enjoy constitutional protection.
On remand, the trial court must decipher which communications although private would enjoy a first amendment protection. Unless the communications in question can serve some public interest necessitating constitutional protection, the private speech would be deemed unprotected and falls under the Stalking Statute.
Refer to our Washington DC Civil Protection Lawyer page for more details on this topic.