The Volokh Conspiracy
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From Mashaud v. Boone, decided today by the D.C. Court of Appeals—the District's equivalent of a state supreme court, though one that generally sits in 3-judge panels—in an opinion by Judge John Fisher, joined by Judge Phyllis Thompson:
The trial court entered a civil protection order (CPO) against appellant Lauren Mashaud based on a finding that he stalked appellee Christopher Boone by sending emails and Facebook messages to Mr. Boone's coworkers, family, and friends informing them that Mr. Boone had engaged in an extramarital affair with Mr. Mashaud's wife….
Mr. Mashaud's wife (Ms. W) was working as an intern at a consulting firm when she began an affair with Mr. Boone, a vice president of the firm…. Two months [after leaning of the affair], Mr. Mashaud sent an email to three senior employees of the consulting firm, "cc'ing" Mr. Boone at his personal and work email addresses. This email stated its intent "to bring a matter to your attention that may be a violation of [the firm's] Code of Conduct and/or other policies, procedures, business ethics, and character or standard"— namely, that Mr. Boone and Ms. W had been "involved in an extramarital affair that took place, primarily, in the workplace." The message went on to state that "[a]side from the potential sexual harassment claims this situation presents, it also involves the inappropriate use of company resources and assets" as the two "have used company time and company resources to further their affair." Mr. Mashaud's email concluded:
"Christopher Boone was previously sent a no contact email from my wife on May 11, 2013 (as attached), but he continues to ignore our request and fails to respect our boundaries to allow my wife and I to heal and to regain the integrity of our marriage …. I will anticipate a response from you once you have investigated these concerns and taken appropriate corrective action."
Attached to Mr. Mashaud's email were copies of several email exchanges between Ms. W and Mr. Boone. Mr. Boone testified that upon receiving this email he felt violated, threatened, and embarrassed. The evidence showed that Mr. Boone replied to the email, stating his willingness to meet and talk the matter through, but that Mr. Mashaud did not respond.
About three months later, Mr. Mashaud informed some of Mr. Boone's friends and family members of the affair through Facebook. As Mr. Mashaud explained in his testimony, Mr. Boone's cover photo and the list of people who had "liked" it were publicly available on Facebook, and for the price of one dollar Facebook allowed users to send messages to any other user, even if the two had no connection. Mr. Mashaud paid this fee and sent messages to at least fifteen users who had liked Mr. Boone's photo.
These messages included much of the same information as the email to the consulting firm, stating that each recipient "should know the kind of person Christopher Boone really is," that Mr. Boone had "had a sexual affair with [Mr. Mashaud's] wife," and that Mr. Boone showed he lacked "integrity and respect for himself" by "fail[ing] to respect the boundaries of a married woman." Attached to these Facebook messages was a photo of Mr. Boone and Ms. W with another firm employee. Mr. Boone testified that when he learned about the messages he again felt violated and threatened, confused as to how Mr. Mashaud had learned his friends' and family members' contact information, and worried for their personal safety.
The evidence at the hearing also showed that Mr. Mashaud created a blog—called "The Power of Light and Truth"—in which he addressed issues relating to the aftermath of affairs. The publicly accessible blog mentioned Mr. Boone by name and included links to his social media accounts and his firm biography. When Mr. Boone saw the blog, he filed a police report. He also initiated the CPO action at issue in this case, alleging that Mr. Mashaud was harassing and stalking him….
The District of Columbia's stalking statute states that a person may not "purposefully engage in a course of conduct directed at a specific individual" intending, knowing, or having reason to know that his or her course of conduct would cause the individual to "[f]ear for his or her safety or the safety of another person;" to "[f]eel seriously alarmed, disturbed, or frightened;" or to "[s]uffer emotional distress." By its express language, however, the statute "does not apply to constitutionally protected activity." D.C. Code § 22-3133(b). (Note the phrasing: "constitutionally protected activity" instead of "constitutionally protected speech"). Thus, if Mr. Mashaud's activity in this case—repeatedly sending emails and messages to third parties with, as the trial court found, a "vindictive motive" and "the intent to cause [Mr. Boone] to feel seriously alarmed, disturbed, or frightened or suffer emotional distress"—was "constitutionally protected," the statute would not encompass his conduct.
We have not delineated the contours of the statutory exception for "constitutionally protected activity," and the text of D.C. Code § 22-3133(b) does not provide an unambiguous answer. One view is that the government may not criminalize any speech except for that which falls into "existing, well-established First Amendment exceptions" such as libel, threats, or obscenity. The exception might, on the other hand, be read as a safety valve which states a truism—that the stalking statute "doesn't mean to cover that speech or action that it isn't allowed to cover." We need not decide today where the line between constitutionally protected and unprotected conduct falls because we encounter at the outset an analytical misstep which requires a remand.
The majority concluded that the trial court erred in assuming that the speech was constitutionally unprotected because it was merely about "matters of private concern":
The Supreme Court has differentiated between matters of public and private concern to explain why speech involving matters of public concern warrants heightened protection. But the Court has rejected the proposition that speech must relate to a matter of public interest to merit First Amendment protection. See, e.g., Engquist v. Oregon Dep't of Agric. (2008) (stating that the government "could not generally prohibit or punish, in its capacity as sovereign, speech on the ground that it does not touch upon matters of public concern"); Connick v. Myers (1983) ("We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.").
In sum, a communication does not lose First Amendment protection merely because it discusses matters of private rather than public concern. We therefore remand for the trial court to consider in the first instance whether the evidence proved stalking given that speech about matters of private concern may enjoy constitutional protection.
But the majority also flagged some other matters that it expected the trial court to consider on remand. First, it seemed to suggest that speech about highly personal topics might be less protected, even if speech on broadly "private" matters—in the sense of daily life matters that aren't connected to broader debates—is generally protected:
While the trial court did make the analytical misstep we have described, it is not clear to us whether the misstep ultimately affected the court's conclusion about stalking. The court repeatedly focused on Mr. Mashaud's course of conduct intended to cause serious alarm to Mr. Boone by taking steps to contact his co-workers, friends, and family, in a manner designed to come to Mr. Boone's attention, about "very personal matters" involving Mr. Boone. The court repeatedly used the phrase "personal matters such as," suggesting that it was not the particular content of the Mr. Mashaud's messages, but instead the very personal nature (potential sexual harassment, an extramarital affair) of what Mr. Mashaud chose to expose to people who were in Mr. Boone's circle but with whom Mr. Mashaud did not have relationships, that drew the trial court's focus. It appears to us that the trial court might have reached the same conclusion even if it had understood that communications about particular matters of private concern enjoy a measure of constitutional protection.
The court also suggested that the trial court should consider "whether … the course of conduct here 'served no legitimate purpose other than to harass and intimidate.'" And it flagged the question whether Mashaud's speech could be seen as fitting within an exception for "speech integral to criminal conduct" (a subject I discuss in detail in this article):
"[S]peech integral to criminal conduct" [is a First Amendment] exception that generally applies to speech used to induce or procure the commission of a crime, such as conspiracy and solicitation. See Giboney v. Empire Storage & Ice Co. (1949) (upholding injunction barring labor union from picketing in an effort to pressure a company to violate state trade laws); United States v. Williams (2008) (holding that offers to provide or requests to obtain child pornography are unprotected under this exception). In Mr. Boone's view, Mr. Mashaud's speech was "integral to criminal conduct, the criminal conduct in this case being that of 'stalking' as statutorily proscribed."
Some courts have rejected such reasoning as circular, see, e.g., Matter of Welfare of A.J.B. (Minn. 2019) (concluding that "the communication itself" criminalized by a stalking statute did not fall into speech integral to criminal conduct exception), and have held that the "speech integral to criminal conduct" exception applies only where the speech is integral to conduct forbidden by a separate criminal prohibition. See United States v. Hobgood (8th Cir. 2017) (affirming appellant's conviction under interstate stalking statute because the speech that formed the basis of the stalking charge was integral to the separate crime of extortion); Burroughs v. Corey (M.D. Fla. 2015) ("[S]peech is unprotected where it is integral to criminal conduct forbidden under another statute …." (emphasis added)), aff'd (11th Cir. 2016).
That view is not unanimous, however, as various cases applying the interstate stalking statute, 18 U.S.C. § 2261A, illustrate. Although the facts of United States v. Gonzalez (3rd Cir. 2018), are different from those presented here, the court's analysis is instructive. The defendants had been convicted of interstate stalking and conspiracy to commit that offense based on a concerted effort to gain custody of three children to whom they were related. Their conduct included sending correspondence to Belford (the mother) and her children, contacting third parties, and posting derogatory information on the internet. The Third Circuit rejected arguments that the convictions violated the First Amendment. The conduct of Gonzalez was defamatory (an exception not invoked here), but "[e]ven if it were not defamatory," the court held, "this speech is still unprotected as it falls squarely into the 'speech integral to criminal conduct' exception. The defendants' speech served no legitimate purpose other than to harass and intimidate Belford, conduct that is illegal under [18 U.S.C.] § 2261A." The speech was part of a course of conduct, and the criminal conduct was the stalking itself. "[I]t is the intent with which the defendants engaged in this conduct, and the effect this conduct had upon the victims, that makes what the defendants did a criminal violation."
Other courts have reached similar conclusions, emphasizing that the interstate stalking statute does not criminalize speech itself, but a course of conduct. See, e.g., United States v. Ackell (1st Cir. 2018) ("By its own terms, § 2261A(2)(B) regulates not speech, but conduct—or, to be precise, 'course[s] of conduct.'"; because the statute does not target speech, it cannot be "an impermissible content- or viewpoint-based restriction on speech"); United States v. Osinger (9th Cir. 2014) ("Any expressive aspects of Osinger's speech were not protected under the First Amendment because they were ''integral to criminal conduct'' in intentionally harassing, intimidating or causing substantial emotional distress to V.B."); United States v. Petrovic (8th Cir. 2012) ("the interstate stalking statute is viewpoint neutral"; it is directed toward courses of conduct, not speech); see also Giboney ("[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.")….
Judge Corinne Beckwith dissented:
On the merits, the most sensible reading of § 22-3133(b)'s statement that the stalking statute "does not apply to constitutionally protected activity" is that it applies only to constitutionally unprotected activities—specifically, activities that fall within the categories of speech the Supreme Court has recognized as unprotected by the First Amendment…. This interpretation of the statute is both more plausible and less prone to constitutional challenge than any suggestion that § 22-3133(b) exempts only speech that the government cannot constitutionally restrict (because, for example, it would fail a strict-scrutiny test)…. [I]n addition to being superfluous, [such a] "broader interpretation"—that § 22-3133(b) refers only to "activity that the statute can't constitutionally restrict"—"poses serious constitutional problems" ….
And she rejected the speech-integral-to-criminal-conduct argument:
As my colleagues in the majority point out, a number of courts have rejected such reasoning as circular, concluding that "speech cannot be unprotected only because it is criminal in the challenged statute." This view makes sense…. "It is not enough that the speech itself be labeled illegal conduct …. Rather, it must help cause or threaten other illegal conduct …."
Reading Giboney so expansively to deny constitutional protection to any speech that has been criminalized would also be in tension with the fundamental rule prohibiting content-based restrictions on speech. The Giboney exception is best understood as a rationale for our "long established criminal proscriptions" on speech "intended to induce or commence illegal activities."
She would therefore have reversed the injunction outright, without need to remand to the trial court.