Crime in D.C. to Negligently Cause "Significant Mental Suffering" by Saying Two Non-Political Things About Someone

That's what D.C. stalking law, as interpreted by D.C. courts, calls for.


D.C. law defines the crime of "stalking" to include, among other things, "communicat[ing] to or about another individual" "on 2 or more occasions" in a way that intentionally, knowingly, or negligently causes a person to experience "significant mental suffering or distress." The law does provide that it "does not apply to constitutionally protected activity." But two D.C. Superior Court decisions in recent years, Gray v. Sobin (2014) and White v. Muller (2017), have read this exception as limited to speech on matters of "public concern"—speech on purely private matters, they have held, is not "constitutionally protected" for purposes of this law.

Say then that a woman in D.C. finds that her boyfriend is cheating on her and tells two mutual friends about it (on two separate days). If she should have known that a reasonable person would feel "significant mental … distress" as a result of being revealed as a cheater (not unlikely, I would think), she's committing a crime.

Or say that her boyfriend had given her an STD, and she tells two mutual friends about that. She too is committing a crime, if she should have known that a reasonable person would feel significant mental distress as a result of some friends learning this. Saying such things actually isn't a tort: Though "disclosure of private facts" can be tortious, that tort, for all its flaws, recognizes that friends have to be free to speak candidly to each other, and doesn't punish disclosures to only a small circle of friends. But D.C. stalking law would make the speech criminal.

And of course this would even clearer as to other speech that is less justifiable but still generally protected. If a woman badmouths another woman twice—say, reveals that the other woman has had many sexual partners, in a social circle where that is still seen as shameful—that too can be a crime. Same if a woman tells two friends that she left her boyfriend because he was impotent, or just a bad lover, or too poor for her, and she should know that learning about such statements would cause him to feel "significant mental … distress."

Now I don't know if there have been any criminal prosecutions on this theory. Instead, the cases that I've seen involve people seeking "civil protective orders" against the people who were saying distressing things about them; under such orders, the speaker could be ordered not to go to certain places, not to possess firearms, and of course not to continue the speech that the court found to be "stalking." But to get such an order, the plaintiff must show that the defendant had committed a crime against the plaintiff; so the cases I cite expressly considered what constitutes criminal stalking, and held that repeated private-concern speech that negligently, knowingly, or intentionally causes significant mental distress is a crime in D.C.

And of course the presence of such a law can deter speech even if there's no criminal prosecution. The protective orders, once issued, are backed by the threat of criminal punishment. But even without a protective order proceeding, a police officer or a prosecutor can often get results just by threatening prosecution. Perhaps the police will use the statute only in narrow circumstances; but, as the Court said in U.S. v. Stevens (2010), "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

If you think that there should be a "private concern speech" exception to the First Amendment, applicable even in criminal cases, then you might support this statute. And Snyder v. Phelps (2011) did suggest that civil liability for private concern speech should sometimes be allowed, though there it was focusing only on speech that was "outrageous," that inflicted "severe" emotional distress, and that did so purposefully or recklessly, not just negligently—elements absent in the D.C. statute.

But I think the better view (especially for criminal cases, where the speech restrictions can't be defined as vaguely as they sometimes are in civil tort liability) is the one expressed in Stevens: "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value"'(let alone serious value), but it is still sheltered from government regulation." Criminal punishment for any two incidents of speech about a person can't be permissible, even if the speaker should know that a reasonable person would find the speech to be significantly distressing.

NEXT: Court Allows Suspicionless "Information Seeking" Stop of a Car Leaving a Home

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  1. The Conspiracy’s energetic avoidance of Trump-related content suggests that refraining from botching a chance for a judicial nomination from Trump is the highest publication standard this blog currently follows.

    If this indicates that right-wingers recognize that Trump might be their last shot for a good long while, that would be simultaneously perspicacious and promising.

    1. Which latest twist in the Deep State soap opera has you so worked up?

      I like the one where Trump paid $130k for an NDA on an alleged consensual sexual encounter, and this is a top headline for months . . . . but meanwhile, it was quietly revealed that we, the taxpayers, have paid $17 million to settle sexual harassment claims on behalf of Congressmen . . . . and we don’t even know who the parties are!!

      1. Worked up? Far from it.

        I am largely content to enable Mr. Mueller (and perhaps others) to investigate, file charges, and prosecute at a reasonable pace. I do not expect or desire Pres. Trump to be removed from office (on currently available evidence, or anything like it) before (1) his term ends or (2) he quits. Impeachment by the House wouldn’t bother me, because it would add shackles, but I do not strongly wish for it. I also would oppose, in current or reasonably foreseeable circumstances, any vote by any Democratic senator to convict Pres. Trump.

        I enjoy the spectacle (the lies, the changing accounts and tactics, the revolving cast of characters, the clownish huffing and puffing, the bizarre revelations), the slow march of justice against a bunch of people who seem to deserve to be held to account, and the degree to which this matter reduces the volume of harm the Trump administration is able to inflict on our society.

        The folks who seem to be obsessing about this subject include the Conspirators, who are straining to avoid any comment about prominent legal issues of the day and in particular are strenuously avoiding criticism of Pres. Trump.

      2. The fact that Congress is full, and is protecting, awful men doesn’t absolve Trump of the same.

        The latest tweet that has the legal world all aflutter is the one about hearby directing the DoJ to investigate the FBI’s investigation of him. That would a pretty bad conflicted intrusion into the independence of the DoJ, but it doesn’t look like he’s going to do the EO he said he would so it’s the usual bluster.

        1. “independence of the DoJ”

          DOJ is not independent of the Chief Executive.

          Rodenstein serves at the pleasure of the president. Its right there in the Constitution. Asleep that day in law school?

        2. You are so incredibly naive it is hilarious. The whole purpose of the special prosecutors office, or IG in this case, is to investigate agencies that can’t be trusted to investigate themselves. FISA abuses, pen registers, foreign contacts in a counterintelligence investigation of an opposing party. This is literally where SPs and IGs need to step in. If you don’t believe there is a political impetus to the investigation you are dumber than you’ve ever revealed yourself to be. The stories from the NYT and WaPo now put the initial contacts with the Trump campaign all the way back to June, 4 months before the DoJ admitted to opening an investigation due to the story of Papdopolous speaking to Australian diplomats. On top of that, the discussion in question that was supposed to Papodopolous by the DoJ contact was expressing contacts that had access to Hillary’s server. So the whole boast by Papodopolous was due to a planted story from the DoJ. And you think there is no problem with this?!?

          My god are you are a partisan idiot.

          There is no thing as an independent DoJ. it is a function of the Executive. There are abuses of the DoJ, full stop. We know this because many abuses have been noted in the past. This includes spying on MLK, discovery warrants on journalists, etc. You’re belief that the DoJ can never be abusive or need to be investigated is idiotic. Full stop.

        3. Imagine if during Obama’s presidency the federal government was investigating for years his fake birth certificate and secret Muslim allegiance and whether he colluded with Hamas to hack the election, all to create fake headlines and undermine his presidency. That’s how dumb this whole thing is, and that’s before getting into the Watergate-like spying on the political opposition.

          1. I guess that would depend on whether there was substantial evidence that Obama had a fake birth certificate and secret Muslim allegiance and colluded with Hamas, the way that there’s substantial evidence that Trump colluded with Russia. (Though one would hardly call his allegiance to Putin “secret.”)

            1. There’s not substantial evidence of any of the above, IMO. I think this is just typical conspiracy mongering, and people are imagining that they see what they so badly want to be true. Obama’s campaign did have contact with Hamas pre-inauguration, just like Flynn spoke with Russia, and Obama fired the person in question over the seedy connection (only to hire him back a few years later).

              I guess, we all know Trump said publicly on the campaign “hey, those hackers should release her emails!” long after the server was offline and the FBI declined to even look at it and Clinton declined to provide it and then destroyed it. So if that’s collusion, then sure, but that’s not what the investigation is about.

              And we know Jr. took a fake meeting, to try to get dirt on Clinton, with a Russian lawyer who, lo and behold, was actually working with Fusion GPS. Can’t see anything criminal about that, it’s just like we also know that Clinton colluded with Russian government officials and a Brit and maybe an Australian to get dirt on Trump. The difference is it appears the latter collusion actually bore fruit, the fruit being none other than starting this phony investigation in the first place and spying on political opponents throughout the campaign.

          2. Even if they were investigating Obama’s birth certificate for years, it wouldn’t be front page news every day and everyone would forget about it for months at a time, because Obama wouldn’t have tweeted about it every day.

          3. >the federal government was investigating for years

            I’d go so far as to say, every single president (regardless of party) should have a special investigator appointed his first day in office to investigate everything he does for his full term. And while it would never happen, I’d prefer for this to be independent of the DoJ.

        4. “The fact that Congress is full, and is protecting, awful men doesn’t absolve Trump of the same.”

          Well, of course not. But it does go far to establish that Trump is not unusually awful for a politician.

  2. “Your Honor, the defendant didn’t mention robbing a bank, so obviously he robbed a bank.”

  3. The purose of speech is to have an effect on others — their thoughts, and, ultimately, their behaviors.

    Beware these psychological, and ultimately, medical (brain scan blood flow, changes to brain) reasons to supress speech.

    It is no different from, say, the old government of Egypt censoring CNN, saying they needed to protect the sensibilities of The People.

    It can and will be abused by those in power to remain in power.

    I can’t wait for the nightmare of detailed memory reading in 50 or 100 years, or dissecting an uploaded brain, by cops here, and dictators worldwide.

    “Don’t worry, the original isn’t harmed at all!”

    1. I won’t live to see it, but ironically, my dead neural pattern might.

  4. Home rule for DC was a mistake.

    1. Not as bad a mistake as enabling the southern states to resume statehood after the Civil War.

      Had patriotic and decent Americans operating in the immediate wake of the Civil War recognize what a political, economic, educational, moral, and cultural stain and drain on our nation those southern states would constitute into the twenty-first century, I believe they would have rejected statehood for the losers.

      Imagine an America with no senator from Alabama, no representative from South Carolina, no electoral vote from Mississippi. Instead, a string of unincorporated territories (the Puerto Rico model) along our southern border.

      I can’t fault the folks who readmitted the southern states too much, though. They beat the bigots when it counted.

      1. Why is Kirkland taking the confederate position that the southern states had the right to secede?

        (Hint: the position of the U.S. is that no such right existed, and the states never lawfully seceded. Therefore, they could not “resume” statehood or “readmit” states since their statehood never ended.)

  5. ISTM a court can easily sever the unconstitutional “or about” modifier and leave a perfectly functional and constitutional statute.

  6. So… you can break up with someone once, but the second time, you have to “ghost” them.

  7. If were charged with a crime and you complained that the prosecutor was railroading you, could the prosecutor then charge you with this additional crime for causing him mental distress?

  8. My child custody case which has dragged on for going-on five years is all about infringement on my fundamental liberties. It really is pathetic that I am retaliated against for speaking out against court – ordered Child abuse. Everybody in court seems so concerned about my daughter’s dad’s feelings and they ignore his perjury and abusive misuse of the legal system and the psychological hard he is inflicting on my little girl with the power of unlawful court orders. No 8 year old should be thinking of suicide and express such profound sadness and despair by repeatedly telling various people that she wants to die. Bizarrely, despite all the testimony and evidence to show that her emotional distress is caused by my absence and not my actions. I have only had supervised contact (ordered contrary to statute) and it all adds up to less than five 24-hour days since June 15, 2015. They hate that I expose the truth by posting petitions, motions, and videos of court hearings online. It makes my daughter’s dad upset. I keep hoping Eugene Volokh will take notice and help us somehow. I can’t believe how they flip things around and call me a slanderer and a perpetrator of psychological harm. Nashville, TN.

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