The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
[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.