256 A.3d 235
D.C.2021Background
- Mashaud discovered his wife’s extramarital affair with Boone and obtained email exchanges between them. He emailed three senior employees at Boone’s firm, cc’ed Boone, and attached the communications, alleging workplace misconduct.
- Months later Mashaud used Facebook messaging (via a paid feature) to contact at least 15 people in Boone’s social circle and created a public blog naming Boone and linking to his profiles. Boone felt violated and sought a civil protection order (CPO).
- The Superior Court found Mashaud committed stalking, ruled the email and Facebook messages were not constitutionally protected (the blog was protected), and entered a CPO with broad prohibitions including online speech restrictions and monetary relief.
- This court previously reversed for use of an outdated statute; on remand the trial court again issued a CPO applying the correct statute.
- The D.C. Court of Appeals majority vacated the revised CPO and remanded, concluding the trial court erred by treating speech about private matters as per se unprotected; the court declined to resolve other First Amendment questions and left factual assessment to the trial court. The dissent would have resolved the statutory/First Amendment meaning and reversed the CPO.
Issues
| Issue | Plaintiff's Argument (Boone) | Defendant's Argument (Mashaud) | Held |
|---|---|---|---|
| Whether communications about private matters lose First Amendment protection under D.C. stalking statute | Private-matter disclosures here are not protected; trial court correctly excluded protection for email/Facebook messages | Speech about private matters still receives First Amendment protection; private-subject status does not make speech per se unprotected | Majority: Speech about private matters can be protected; trial court misapplied law and must reevaluate stalking finding on remand |
| What does §22-3133(b) (“does not apply to constitutionally protected activity”) mean — limited to historically unprotected categories or broader? | Implicitly treats speech integral to stalking as unprotected | Statutory exception should track established categories of unprotected speech; cannot be read circularly | Majority: Declined to decide; remanded. Dissent: would read exception as limited to established unprotected categories |
| Whether “speech integral to criminal conduct” doctrine renders these communications unprotected | Communications were integral to stalking and thus fall outside First Amendment protection | Applying the doctrine here would be circular because stalking statute itself criminalizes the conduct; no separate criminal inducement alleged | Majority: Declined to decide; remanded for fact-bound assessment. Dissent: would reject speech-integral argument and reverse CPO |
| Sufficiency of evidence to support CPO/stalking finding | Evidence of repeated, vindictive course of conduct intended to alarm supports CPO | Either insufficient or precluded by First Amendment protection for the communications | Majority: Vacated CPO and remanded for reconsideration under correct First Amendment analysis; did not finally decide sufficiency |
Key Cases Cited
- Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (speech on private matters is not categorically outside First Amendment protection)
- Connick v. Myers, 461 U.S. 138 (private-matter speech still may be protected; public-concern distinction noted)
- Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (protections for private-matter speech are less stringent but still exist)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (content-based speech restrictions presumptively invalid)
- United States v. Stevens, 559 U.S. 460 (only well-defined, narrowly limited categories of speech are unprotected)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (speech integral to criminal conduct historically unprotected)
- United States v. Williams, 553 U.S. 285 (offers/requests to obtain child pornography unprotected as integral to criminal conduct)
- United States v. Gonzalez, 905 F.3d 165 (3d Cir.) (speech as part of course of conduct that served only to harass was held unprotected in interstate‑stalking context)
- United States v. Ackell, 907 F.3d 67 (1st Cir.) (interstate stalking statute targets conduct/courses of conduct, not speech per se)
- United States v. Osinger, 753 F.3d 939 (9th Cir.) (expressive aspects unprotected when integral to intentional harassment causing distress)
- United States v. Petrovic, 701 F.3d 849 (8th Cir.) (interstate stalking statute is viewpoint neutral and regulates courses of conduct)
- United States v. Smith, 685 A.2d 380 (D.C. 1996) (D.C. court upheld earlier stalking provision where repeated conduct combined with requisite intent lost protection)