295 A.3d 1139
D.C.2023Background
- Christopher Boone filed for a civil protection order (CPO) alleging Lauren (Dr.) Mashaud stalked him by (1) emailing Boone’s employer alleging an extramarital affair, (2) paying to message at least 15 of Boone’s Facebook contacts revealing the affair and attaching a photo, and (3) creating a public blog naming Boone and linking to his work profile.
- The Superior Court found Mashaud’s email and Facebook messages (and earlier findings about the blog) showed a course of conduct intended to or that should have caused significant emotional distress and issued a CPO and therapy reimbursement.
- On appeal, the D.C. Court of Appeals granted en banc review to resolve whether the D.C. stalking statute’s savings clause—“This section does not apply to constitutionally protected activity” (D.C. Code § 22-3133(b))—saves the statute from First Amendment overbreadth.
- The en banc majority held the stalking statute, as written, is substantially overbroad because it criminalizes communications that would reasonably cause emotional distress regardless of truth, public concern, or social value, but that the savings clause can be read to limit the statute to historically unprotected categories of speech (e.g., threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct).
- Applying that limiting construction, the court concluded Mashaud’s communications were constitutionally protected speech (truthful disclosures about a private affair, not threats, defamation, incitement, obscenity, or fraud) and therefore not within the narrowed scope of the stalking statute; it reversed and vacated the CPO.
Issues
| Issue | Plaintiff's Argument (Boone) | Defendant's Argument (Mashaud/District) | Held |
|---|---|---|---|
| Whether evidence sufficed to support stalking finding | Mashaud’s email, Facebook messages, and blog formed a course of conduct that intended or should have caused significant emotional distress | Mashaud argued his speech was protected; District contested sufficiency (esp. that email was innocuous) | Court: Evidence supported intent and that a reasonable person would suffer emotional distress (blogposts, messages, email), but sufficiency becomes moot after constitutional holding reversing CPO |
| Whether the stalking statute is overbroad under the First Amendment | N/A (Boone sought relief under statute) | Mashaud/Amici argued statute criminalizes large amounts of protected speech and is substantially overbroad absent a narrowing construction | Court: Statute is substantially overbroad absent narrowing because it is content-based and would prohibit much protected yet distressing speech |
| Proper construction of savings clause (§ 22-3133(b)) | Boone/Trial Court treated some speech as unprotected if private; some urged limiting only in case-by-case manner | District: clause is a truism—statute applies until a court concludes particular application violates the Constitution; dissent favored a ‘‘severe intrusion’’ standard tied to statutory intent | Court: Savings clause must be read to exempt constitutionally protected activity by limiting the statute’s speech-based reach to historically unprotected categories of speech; rejected the District’s vagueness-prone truism and the dissent’s vague righteousness/intrusiveness test |
| Whether Mashaud’s communications fit into an unprotected category (thus not exempt) | Boone argued the speech was integral to criminal conduct (stalking) or otherwise actionable | Mashaud argued speech was truthful, not a threat, not defamatory, not incitement, not obscene, not fraud — thus protected | Court: Communications did not fall within recognized unprotected categories; they are constitutionally protected and therefore outside narrowed statute; CPO reversed |
Key Cases Cited
- Snyder v. Phelps, 562 U.S. 443 (2011) (First Amendment protects highly offensive public protest speech)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (government may not regulate speech based on listeners’ reaction)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based and viewpoint-based speech regulations are presumptively invalid)
- Garrison v. Louisiana, 379 U.S. 64 (1964) (truthful discussion of public affairs may not be criminally punished)
- United States v. Stevens, 559 U.S. 460 (2010) (statute substantially overbroad as applied to depictions of animal cruelty; courts may limit statutes to historically unprotected speech categories)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (identifies historically unprotected speech categories such as fighting words)
- Matal v. Tam, 582 U.S. 218 (2017) (speech cannot be banned because it is offensive)
- Coleman v. United States, 202 A.3d 1127 (D.C. 2019) (interpreting stalking statute; emotional distress must be significant; requires mental state on each occasion)