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Free Speech

Law Banning Distressing Speech "About" a Person Must Be Limited to Speech Within First Amendment Exceptions

So holds the D.C. Court of Appeals, D.C.'s equivalent of a state supreme court.


From the 6-judge majority opinion in Mashaud v. Boone:

[T]he District's stalking statute … makes it a criminal offense to engage in a course of conduct—including two or more "communicat[ions] to or about another individual"—that one knows or should know would reasonably cause another to suffer emotional distress. D.C. Code §§ 22-3132(8)(A), -3133. By its terms, it restricts all manner of speech, without regard to its truth or falsity, and without regard to whether it is of public or purely private concern. The constitutional problems with the statute are glaring. See Forsyth County, Ga. v. Nationalist Movement (1992) ("Listeners' reaction to speech is not a content- neutral basis for regulation."); R.A.V. v. City of St. Paul (1992) ("Content-based regulations are presumptively invalid."); Garrison v. Louisiana (1964) ("Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.").

People are generally allowed to say things that they know or should know will cause others emotional distress. Such speech is frequently socially valuable or, at the very least, accepted. Doctors tell patients that they likely have only months to live, or more distressing yet, that their children do. Spouses may knowingly inflict emotional distress by revealing a longstanding paramour and demanding a divorce. Police officers bring news of loved ones having been killed. Judges pronounce death sentences. All of those messages undoubtedly trigger extraordinary distress, and as a result, they are prohibited by the stalking statute's plain terms (at least if the messages need repeating). The statute is unconstitutional if read in that straightforward fashion, as "[s]peech may not be banned on the ground that it expresses ideas that offend."

But the stalking statute has a savings clause, and we granted en banc review in this case to resolve its meaning. The stalking statute provides that "[t]his section does not apply to constitutionally protected activity." D.C. Code § 22-3133(b). To save the District's stalking statute from unconstitutionality, we interpret this clause to mean that, when speech is at issue, the statute covers only speech that fits within the "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."

That includes threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Outside of those narrow categories, speech is constitutionally protected activity that the statute does not apply to.

In this case, the Superior Court found that there was good cause to believe that Lauren Mashaud, a married man, stalked Christopher Boone when he truthfully revealed to Boone's family, friends, and colleagues that Boone had an affair with Mashaud's wife. Mashaud now appeals. Because Mashaud's speech was constitutionally protected activity—i.e., it does not fit within any of the categories outside of the First Amendment's protections—we conclude that he did not stalk Boone. We therefore reverse….

Quite right, I think. (Note that Schaerr | Jaffe's Gene Schaerr, Erik Jaffe, and Joshua Prince and I filed an amicus brief in the case, on behalf of Protect the 1st Foundation and myself, advocating for this result. Many thanks to UCLA First Amendment Amicus Brief Clinic law students Max Hyams, So-Young Kim, and Jason Lundry, who drafted the brief under my supervision; and to Scott & Cyan Banister, whose generosity makes the Clinic possible.)

A few excerpts from the very long opinion:

What's more, the statute's broad scope applies not only to speech concerning purely private matters, but also to communications on matters of public concern: speech that "occupies the highest rung of the hierarchy of First Amendment values." The desire to elicit an extreme emotional reaction is "not an uncommon purpose, nor one held only by a few evil people." Consider the abortion rights opponent who tells clinic staff that they are murderers, or the animal rights activist whose messaging includes graphic images of slaughtered, mangled, and deformed infant livestock. Both speak on issues of public concern and are therefore entitled to the strongest First Amendment protections. But both invariably intend to evoke deep emotional distress with the hope of making their targets feel "socially ostracized … and emotionally racked with guilt, regret, and a perception of social condemnation." Yet both would be in violation of the plain text of the District's stalking statute, which includes no special carve-out for speech on matters of public concern.

It is a foundational principle of the First Amendment that "speech cannot be restricted simply because it is upsetting or arouses contempt." "The First Amendment protects lots of speech that is substantially emotionally distressing." "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

The District's stalking statute runs headlong into that bedrock prohibition. Absent some narrowing construction, the District's statute would criminalize speech at the heart of many touchstone First Amendment cases. Protesters carrying signs reading "Thank God for IEDs" and "Thank God for Dead Soldiers" outside a deceased service member's funeral would likely be stalkers in the District, at least if their protests were repeated. The same is true for individuals who display burning crosses, swastikas, and other hateful symbols despite knowing that this expressive conduct will arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." A repeat neo-Nazi march through a neighborhood that is home to numerous Holocaust survivors, would likewise be considered stalking. And when a national publication satirized an interview with Minister Jerry Falwell, indicating that his first time having sex was "a drunken incestuous rendezvous with his mother in an outhouse," that too would seem sufficiently distressing to be prohibited by the District's stalking statute….

We do not doubt that there is a compelling interest in prohibiting stalking, and that a narrowly tailored statute might prohibit at least some of the communications at issue here (probably not the email, though). As written, however, the statute is unconstitutionally overbroad and would need to be struck down unless some narrowing construction can save it from wholesale invalidation….

Because we may strike down a constitutionally overbroad statute only "as a last resort," we are obliged to determine if the stalking statute is "'readily susceptible' to a narrowing construction that would make it constitutional."

The stalking statute gives us a natural entry point for that inquiry. It provides that it "does not apply to constitutionally protected activity." Amici argue that we should read the savings clause as a categorical limitation on the statute's scope, as Judge Beckwith advocated in her dissent from the division's opinion. When it comes to communications to or about another person, they assert, the clause limits the definition of stalking to just those discrete, well-defined categories of speech that lack First Amendment protections: threats, defamation, and the like. The District counters that the savings clause states no more than a truism, leaving us to scrutinize on a case-by-case basis which of its particular applications run afoul of the Constitution.

For the reasons that follow, we conclude that the first approach is not only the superior of the two, but the only one that would save the statute from invalidation….

Amici argue that we should read the savings clause as exempting entire categories of constitutionally protected speech from the stalking statute's reach.

Under this reading, when the savings clause says it does not apply to "constitutionally protected" speech, it exempts all speech except that which fits within the "narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." That would leave threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct [and] {"fighting words," "child pornography," and "speech presenting some grave and imminent threat"} within the stalking statute's reach, while leaving the balance of speech beyond it.

There are substantial advantages to this interpretation of the statute. Most importantly, it would eliminate the statute's unconstitutional overbreadth. The statute would proscribe only that speech that lacks First Amendment protections. It would likewise avoid any vagueness problems—which the District's interpretation suffers from, as discussed below—as a would-be perpetrator would not need to perform a full constitutional analysis to determine if their conduct falls within the statute's scope…. [I]f interpreted in this way, "the statute would be a combination of a criminal libel statute, a threat statute, a fighting words statute, and the like" ….

The District counters that the savings clause should be read to state a truism: that like all legislative enactments, the stalking statute only applies to "conduct or expression," which we take to include expressive conduct, "that the Constitution does not shield after conducting the relevant constitutional analysis."

If read in this way, then it is technically true (as the District contends) that the statute would no longer be overbroad; by its literal terms, it would forbid nothing that the Constitution protects. But that walks right into a different and equally devastating constitutional problem: it substitutes vagueness for overbreadth, thereby leaving the statute on no firmer constitutional footing. "The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited."

First, it makes little sense to say (as the District asserts) that the stalking statute applies to all speech except that which the "Council could not permissibly prohibit under the Constitution." Whether speech has been permissibly regulated depends on how narrowly tailored the regulation is to a compelling interest. The Council cannot get around the narrow tailoring requirement by simply declaring that it is prohibiting all distressing speech that, through a narrowly tailored statute, it otherwise might. It must actually do the tailoring. A statute that simply directs judges to determine if speech of a particular type could be constitutionally proscribed lacks the requisite tailoring and is constitutionally infirm on its face. The stalking statute is not narrowly tailored to a compelling state interest if we read the savings clause to state a truism, regardless of whether a variety of the speech it covers might be proscribed through a more targeted statute.

The District thus fundamentally misunderstands what strict scrutiny is when it counters that "[m]ost applications of the stalking law would survive even strict scrutiny" if the savings clause were interpreted as a mere truism. Strict scrutiny takes stock of the statute as a whole and asks whether it is narrowly tailored to achieve a compelling state interest, and a statute will fail that test if a "narrower regulation would suffice" to satisfy the state's interest. It is a category error to say a statute would survive strict scrutiny in "most applications"; "'overinclusive' statutes also fail strict judicial scrutiny."

Second, a statute with terms requiring "application of the appropriate constitutional test" would leave the line between innocent and prohibited conduct a matter of guesswork for most of the District's residents. As one treatise describes the problem, such a statute would be "patently vague":

[T]he Constitution does not, in and of itself, provide a bright enough line to guide primary conduct, and [] a law whose reach into the protected sphere is limited only by the background assurance that unconstitutional applications will eventually be set aside is a law that will deter too much that is in fact protected.

Laurence H. Tribe, American Constitutional Law 1031 (2d ed. 1988) (discussing the risk of vagueness in "judicial reconstruction" of unconstitutionally broad statutes). Even for trained attorneys, a statute requiring ex ante constitutional analysis to determine its scope fails to give adequate notice of its requirements. And particularly when that statute imposes criminal liability, the result of this vagueness is inevitably the impermissible chilling of protected speech….

The only question remaining is whether Mashaud's speech fits within a narrow category of speech that lacks First Amendment protection. That is a pretty open and shut case: it does not. Mashaud did not defame Boone; it is undisputed that his statements were true. He did not threaten him. His speech did not incite criminal activity, and it was neither obscene nor fraudulent.

Boone counters that Mashaud's speech fits within one recognized exception to the First Amendment's protections, because it was integral to a criminal act— namely, stalking. This argument is fatally circular. While it is true that the First Amendment does not protect speech integral to criminal conduct, "the speech must be integral to conduct that constitutes another offense that does not involve protected speech." The exception is typified by crimes like solicitation or conspiracy, which encourage others to participate in and thereby advance a non-speech offense.

It makes no sense as an exception if the speech both constitutes the crime itself and thereby avoids First Amendment protections by being integral to its own commission. By Boone's reasoning, the government could prohibit any disfavored speech by first defining it as a crime and then claiming that the First Amendment no longer applies because that speech is now integral to that same offense. An exception like that would swallow the First Amendment whole and bears no resemblance to what this narrowly drawn exception actually is.

Because the course of conduct identified by the trial court consisted solely of "communications to or about another individual," and those communications did not fall within one of the categories of speech that lack First Amendment protections, the court erred by finding that Mashaud committed the crime of stalking…

Judge McLeese, joined by Judge Alikhan, dissented from the court's analysis (though they agreed that the order should be reversed); they would have instead read the statute as limited to behavior that "involve[s] a severe intrusion on the victim's personal privacy and autonomy."