Harassment

D.C. City Councilman Tried to Get Anti-Stalking Order Against Freelance Journalist

The councilman was Trayon "Rothschilds Control the Weather" White (or, if you prefer, Trayon "Nazi Stormtrooper Protectors" White).

|The Volokh Conspiracy |

In my recent posts about D.C. City Councilman Trayon White, I forgot that late last year I stumbled across a case involving that very personage, and in the press of business neglected to blog about It. I thought I'd make up for that now, by quoting the D.C. Superior Court opinion in the case, White v. Muller (Oct. 6, 2017). First, the court's general summary:

The Petitioner Trayon White, a District of Columbia City Council Member [representing Ward 8], alleges that the Respondent John Muller, [a freelance journalist, focusing on local issues, and a Ward 8 resident], stalked him….

At first glance, this case seems rather straightforward; a pugnacious reporter aggressively pursuing a story. Surely, the First Amendment protects such endeavors no matter the politeness of the journalist. To that end, the District's stalking statute explicitly carves out conduct protected by the First Amendment.

The facts in this case, however, command a more nuanced analysis. Although a journalist, the record demonstrates that Mr. Muller's approach to Mr. White was largely personal in tone and substance. For example, in repeated text messages Mr. Muller implored and taunted Mr. White to "be a man" and repeatedly accused Mr. White of not being from the "street". But as discussed herein, even if these messages failed to constitute protected speech on matters of public concern, standing alone they cannot establish a crime under the Interfamily Offenses Act….

This Court can only issue a CPO [Civil Protective Order] if the Court finds that good cause has been shown that "the respondent has committed or threatened to commit a criminal offense against the petitioner." … Stalking is the only … offense at issue [here, and] … is defined as "purposefully engag[ing] in a course of conduct directed at a specific individual … (1) [w]ith the intent to cause that individual to … (2) [t]hat the person knows would cause that individual reasonably to … or (3) [t]hat the person should have known would cause a reasonable person in the individual's circumstances to … [f]ear for his or her safety or the safety of another person; … [f]eel seriously alarmed, disturbed, or frightened; or … [s]uffer emotional distress." A "course of conduct" means "directly or indirectly … on two or more occasions, to: (A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual."

The stalking statute plainly states that it "does not apply to constitutionally protected activity." Therefore, the Court must also consider whether Mr. Muller's actions are protected by the First Amendment. To determine whether Mr. Muller's actions are protected speech, this Court looks to the thoughtful analysis of Judge Edelman in the recent case Gray v. Sobin, 2013 CPO 3690 (D.C. Sup. Ct. 2013), where the Court was also required to navigate the intersection between the District's stalking statute and the First Amendment…. The crux of Judge Edelman's analysis rested on whether the conduct at issue related to a matter of "public concern" (and hence, whether it falls outside the scope of the District's stalking statute)…. Adopting that analysis …, this Court must answer the following: 1) Is Mr. Muller's conduct, in the instances alleged by Mr. White, protected speech under the First Amendment? 2) If not, did Mr. Muller, on two or more occasions, engage in conduct against Mr. White that is prohibited by the stalking statute? …

Now, the specific incidents of alleged stalking, with the court's analysis of each (with some paragraphs moved to keep the facts together with the analysis).

[1.] In early June 2017, Mr. White gave Mr. Muller a quote to use in a CityPaper article via text message….

In late June 2017, Mr. Muller sent Mr. White texts requesting an interview. Mr. White declined Mr. Muller's request to talk "man to man". Mr. Muller then repeatedly texted and called Mr. White's personal cell phone throughout the evening. By the Court's count, Mr. Muller sent Mr. White at least 47 text messages that night [starting at 7:18 pm]. Many of these text messages contain personal attacks, such as "You are a fraud and the whole city will know"; "you are not a street dude. Just a weak dude"; and "the whole city will know you are a fraud. Ward 8 counsel is too big for you. You are petty and small time. You say nothing that means anything. You are not a leader. Just a wannabe. All you ever will be." …

[The texts] do not constitute speech protected under the First Amendment. These texts, which Mr. White received incessantly over the course of one evening, do not reference any particular policy or subject matter that Mr. Muller seeks to discuss. Instead, they are personal in nature, belittling, and appear to be Mr. Muller's attempt to intimidate Mr. White. Mr. White and Mr. Muller were the only participants in this conversation. There is no issue of public interest or public concern that can be gleaned from these messages. Accordingly, the Court finds that this conduct does not constitute protected speech.

Further, the Court finds that this instance of conduct forms a basis for stalking. Mr. Muller's conduct satisfies the elements of stalking because Mr. Muller either knew or should have known that both the number and content of these messages would cause Mr. White to fear for his safety, feel alarmed, or suffer emotional distress. However, to find stalking, the Court must find two instances of conduct that satisfy the elements. These texts count as one instance because they were continuing in nature and did not exceed a 24-hour period. ["Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion." D.C. Code § 22-3133 (c).] To find that Mr. Muller stalked Mr. White, the law requires at least one more instance of stalking conduct.

[2.] After these texts, Mr. Muller posted similar messages to a Facebook page called The Great Ward Eight [an active publicly accessible Facebook group of the community members of Ward 8]. These posts contained statements such as "[Mr. White] isn't from the streets." … Mr. White asked Mr. Muller to stop making these posts….

This post was made on a public social media page that is explicitly established as a forum for the community to discuss matters of public interest. As a councilman, Mr. White's background in and relationship to community is an issue of public concern. Accordingly, the Court must find that this instance is protected speech and cannot form a basis for stalking.

[3.] Towards the end of July or early August 2017, Mr. White hosted a public meeting at Excel Academy. Throughout the meeting, Mr. Muller "heckled" Mr. White by trying to ask questions. At the end of the meeting, Mr. Muller tried to walk up to Mr. White. Mr. White told Mr. Muller to leave him alone and the two parted ways….

While Mr. Muller's conduct may well have been impolite or aggressive, it was well within the protections of the First Amendment. This was a community meeting for the precise purpose of discussing issues of public concern. Although Mr. Muller may have approached Mr. White at the meeting, the record indicates that when Mr. White declined to speak with Mr. Muller, Mr. Muller left and the situation did not escalate.

[4.] In mid-July, Mr. Muller went, with other individuals, including Christopher Hawthorne, a witness at trial, to Mr. White's home and took photographs of Mr. White's car, its license plate, and a parking ticket. Mr. Muller and Mr. Hawthorne testified that they were investigating Mr. White's parking tickets due to a parking ticket proposal that Mr. White made to the D.C. Council. Mr. Hawthorne and Mr. Muller testified that they located Mr. White's car in the alleyway behind his house and were able to photograph it from the public street/ walkway. Mr. Muller then posted the images to The Great Ward Eight Facebook page. Mr. White later saw these photographs on Facebook….

While this incident appears, at first glance, to be quite intrusive, the testimony established that the group intended to look into and monitor the status of Mr. White's parking tickets in conjunction with a recent proposal before D.C. Council. Their "investigation" may have been ill-conceived; however, it did pertain to a matter of public concern and was ultimately shared with the larger community through The Great Ward Eight Facebook page. This instance of conduct consists of protected speech and cannot constitute stalking.

[5.] Mr. White testified that after he received the Temporary Protective Order, which prohibited Mr. Muller from contacting Mr. White, Mr. Muller authored a post about the matter to the Great Ward Eight Facebook page. The post stated, in part, that Mr. White "knowingly insinuated, fabricates, and advances lies about me." and "I took Mr. White's potentially libelous and slanderous lies in stride because I know how truly weak his game and knowledge of the city is. Mr. White tries to imitate he is from the streets. He is not." Mr. Muller also texted Mr. White, called Mr. White's office repeatedly over the week, and emailed Mr. White's office at least five times. Mr. Muller's conduct, paired with Mr. White's knowledge of Mr. Muller's similar conduct towards others, made Mr. White feel unsafe, alarmed, and suffer emotional distress….

Mr. Muller made this post after being made aware that Mr. White filed this CPO case. The information that a Councilmember filed for a CPO against a journalist and a constituent would certainly be a matter of public interest and concern. Further, this post was to the community Facebook page which is designed to address issue of public concern. The Court finds that this post consists of protected speech.

The bottom line:

To find stalking, the Court must find two or more instances of stalking conduct. After evaluating each allegation in this case, the Court is only able to identify one [the texts discussed in item 1 above]. Without these multiple instances, the Court cannot conclude that Mr. Muller engaged in a course of conduct against Mr. White. Accordingly, the Court cannot find stalking and Mr. White's request for a CPO is denied.

My thinking:

[A.] The court's analysis as to items 2 to 5 is generally quite right, and Councilman White is rightly faulted for asking for a restraining order against a constituent based on those incidents.

[B.] I don't agree with the court's conclusion that the First Amendment allows "anti-stalking" orders whenever there are two incidents of non-public-concern speech that intentionally, knowingly, or negligently causes emotional distress (even using a reasonable person standard). I will blog about that in a separate post.

[C.] In particular, I think that even speech that is "personal in nature [and] belittling" should be constitutionally protected if it is said about a person (especially if said about an elected official, but even if said about someone else). But I do think speech said to a person, when the speaker and listener "were the only participants in this conversation" could in some instances be more restrictable than other speech.

The test, however, should not be whether speech is "of public concern"; indeed, in some situations listeners should be able to cut off unwanted contact even if someone persistently calls someone to persuade them of an important political message. The key principle is that, once it's clear that the listener isn't interested in hearing the message, the message becomes unlikely to inform or persuade anyone (since the listener is the only listener). As the Court held in Rowan v. U.S. Post Office Dep't (1970), upholding a law that banned people from mailing material to a recipient once the recipient has demanded that the mailings stop, "If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient."

The tough question is how this should play out when the speech is sent to a government official. Here, the status of the recipient should matter: While we generally have a right to say whatever we want about third parties, government officials or not (unless the speech fits within one of the narrow First Amendment exceptions, e.g., for libel or threats), I think our right to keep talking to unwilling third parties might be limited to speech to government officials or perhaps to business or nonprofit organizations. And perhaps even speech to government officials should be restrictable when it's sent to a personal cell phone, at least when the listener has said "stop," and the speaker can convey the same messages to an office phone or address.

But in any event, this about-a-person-vs.-to-a-person inquiry strikes me as much more proper here than the inquiry into whether the speech is "personal" and "belittling" rather than political.

[D.] There is no general right to interrupt speakers; but as courts have recognized, the customs related to permissible interruption vary from context to context. What is allowed at a community meeting might not be allowed in an academic lecture or in a sermon; asking questions out of turn might be allowed in one but not the other. (Continually shouting down a speaker, I think, is generally forbidden in both.)

In any event, though, there's no indication in the facts that Muller's speech was generally seen as outside the norms for the community meeting, or that the meeting's organizers admonished Muller to stop. Given this, I don't think Muller's conduct can be condemned as criminal stalking (or even one of two incidents that leads to a finding of stalking), or can lead to an injunction.

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  1. Stalking is another one of those laws that are blatantly unconstitutional. Following, calling, texting, emailing, and sending items via mail should not be crimes simply because the recipient does not like the attention, especially a public figure.

    Unless there are threats of harm or actual physical injury, these injunctions and “restraining orders” are unconstitutional.

    Same thing with orders taking away someones guns based on some judicial order where a criminal conviction has not been attained by a trier of fact.

    Judges have too much power and use excuses to get back logged with criminal and civil cases on their dockets.

    1. Following, calling, texting, emailing, and sending items via mail should not be crimes simply because the recipient does not like the attention, especially a public figure.

      Yet these create a burden on the receiver. If you call, test, email, or mail me items, I have to deal with the results and spend effort to rid myself of them. Further, several of them can result in the denial of me being able to use a service I am paying for. At some point, it goes beyond freedom of speech even for a public figure. The only question I see is where that point is. I’m reminded of this case from many years ago.

      1. Same impression here. Having a phone entails a certain amount of wasted time from wrong numbers, at least. Then there are intentional cold calls, ranging from survey takers to telemarketers, which are unasked for but not all of which are annoying.

        When someone has said to stop calling, any further contact is harmful in some small way, such as time taken to deal with it, interrupting some task like reading a book or work documentation, washing dishes, taking a shower, working in your wood shop, or actual work. Too much of that, even if only one call every ten minutes, makes it practically impossible to get anything done.

        Physically following someone around can also be perceived as a threat, not necessarily physical; is the stalker going to start pestering you with questions, are they waiting for some slight transgression like crossing a sidewalk after the sign has started flashing, are they trying to track your movements to plan a kidnapping, or they tracking what stores you visit and who you visit and what you buy, with the intention of publishing so much petty gossip that you feel hounded all day?

  2. Stalkers make me feel special.

    1. But you are special, MM! Don’t feel like you need ‘validation’ from some stalker.

  3. When a right-wing professor blogs about something involving Muller these days — and it’s about a John Muller, and it’s something from last year — that is as telling as when the Republican president spends a chunk of every morning a-twitting to explain just how much of a non-story the Mueller investigation is.

    The chance to get in a “Trayon” reference is, of course, is a bonus for all of the Conspiracy’s movement conservative fans, the gun nuts in particular.

    Carry on, clingers.

    1. When will the rev start going on about precious bodily fluids?

      1. PBF is a “backwards right-wing” thing. He’ll more likely just call everyone rayciss.

        1. I’m still trying to understand how RAK and others are so confused, calling so many people Ray’s sis(ter).

      2. Having said that, I’m beginning to wonder if it’s NOT a test of a semi-autonomous AI bot; meant to simultaneously drum up liberal support and deflate conservative morale.

        Obviously they didn’t get their money’s worth from the programmers.

      3. When will the rev start going on about precious bodily fluids?

        That was the wingnut’s move. Get an education.

        1. Wingnuts can come from either the right wing or the left wing.

          1. Naw, wingnuts are from the right; barking moonbats, of which Kirkland is a prime example, come from the left.

  4. For part C, what if one person’s speech about another results in multiple 3rds directing unwanted speech to the original individual, perhaps on an intermittent yet ongoing basis?

    Also, wouldn’t “m?ller” purvey more street cred? /sarc

    1. Wouldn’t that depend where the street is?

      1. No, there is universal appeal. “It’s like a pair of eyes. You’re looking at the umlaut, and it’s looking at you.”

        1. Cracking up, but Muller and M?ller are distinct in German, the latter of which being alternatively spelled Mueller.

          Case in point, Munster is a region of Ireland, while M?nster is a region of Germany.

          1. I thought it was a cheese.

      2. I thought there were two of you? You need to find your brother and bring him back.

        1. I believe his brother is on another street!

  5. “The key principle is that, once it’s clear that the listener isn’t interested in hearing the message, the message becomes unlikely to inform or persuade anyone (since the listener is the only listener).”

    Would it then be possible to get a restraining order against the door to door evangelist?

    1. Restraining order statutes generally aren’t written in a way that would allow that. But other statutes can easily forbid it — Martin v. City of Struthers (1943) made clear that a jurisdiction may “make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed.” And indeed some cities have ordinances that ban door-to-door soliciting (including political or religious soliciting) when the householder has posted a “No Soliciting sign.”

  6. First, the cost of blocking text messages from someone is fairly trivial — every phone comes with such a feature built-in. The blocked person does not even know they are blocked, they can just continue to shout into a black hole. Not that I disagree that this is unprotected, but I just have less respect for a plaintiff that’s not willing to take even the most trivial of self-help steps.

    By contrast, there was one ‘harassment’ case that EV blogged about where someone on Twitter would continuously create new accounts as each one got blocked by the target. That seems to me a more respectable position for the plaintiff — since the harasser is now willfully/aware of the intent of the target.

    And of course, boilerplate speech-about versus speech-to.

  7. “What is allowed at a community meeting might not be allowed in an academic lecture or in a sermon; asking questions out of turn might be allowed in one but not the other. (Continually shouting down a speaker, I think, is generally forbidden in both.)”

    Please inform the people who run our nation’s universities – they couldn’t disagree more.

  8. “Interfamily Offenses Act” – ? A Hatfield/McCoy thing?

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