LAUREN MASHAUD, APPELLANT, v. CHRISTOPHER BOONE, APPELLEE.
No. 16-FM-383
DISTRICT OF COLUMBIA COURT OF APPEALS
August 12, 2021
Appeal from the Superior Court of the District of Columbia (CPO-739-14) (Hon. Fern Flanagan Saddler, Trial Judge) (Argued March 29, 2017 Decided August 12, 2021)
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Matthew B. Kaplan for appellant.
Governor E. Jackson III, for appellee.
Before THOMPSON and BECKWITH, Associate Judges, and FISHER,* Senior Judge.
Opinion for the court by Senior Judge FISHER.
Dissenting opinion by Associate Judge BECKWITH at page 17.
I.
The trial testimony in this case established the following facts, most of which are undisputed. 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. The affair began in May 2013 after Ms. W and Mr. Boone attended a company happy hour. Mr. Boone testified that at the time, he believed Ms. W was unmarried, though she had mentioned being in a “rocky relationship” with a boyfriend. According to Mr. Boone, when Ms. W disclosed the following week that she was married, he was “in a complete state of shock and disbelief,” told her that he could not knowingly engage in an extramarital affair, and ended the relationship. The next day, Ms. W told Mr. Boone that Mr. Mashaud had found out about the affair and informed Mr. Boone of her plans to send him a “no contact” letter via email. Mr. Boone testified that although Ms. W told her husband the affair was over, he and Ms. W continued to email each other through July 2013.
Two months later, 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.
At a bench trial on the CPO matter, Mr. Mashaud defended against the accusations of stalking by arguing that the evidence was insufficient to satisfy the elements of stalking and that the communications at issue — the email to the firm, the Facebook messages, and the blog posts — were constitutionally protected and therefore fell outside the scope of the stalking statute. The trial court concluded that none of the communications was constitutionally protected, found good cause to believe Mr. Mashaud had committed the offense of stalking, and issued a CPO against Mr. Mashaud. See
Mr. Mashaud appealed, and we reversed the entry of the CPO on the ground that the trial court had relied on an outdated version of the stalking statute. Mashaud v. Boone, No. 14-FM-894, Mem. Op. & J. (D.C. Feb. 29, 2016). On remand, the trial court reaffirmed its ruling that the email and the Facebook messages were not constitutionally protected because they related to matters of purely private concern, but it reached the opposite conclusion with respect to the blog posts, ruling that the blog was protected. Applying the correct version of the statute to the email and the Facebook messages, the court once again found good cause to believe Mr. Mashaud had committed the offense of stalking and reissued the CPO.1 It concluded that appellant acted with a “vindictive motive” and “engaged in this behavior repeatedly . . . with the intent to cause [Mr. Boone] to feel seriously alarmed, disturbed, or frightened or suffer emotional distress.”
II.
Mr. Mashaud devotes much of his brief to his contention that D.C.‘s stalking statute, both facially and as applied in this case, unconstitutionally infringed upon his freedom of speech. He also argues that the evidence in the record was insufficient to establish that he committed the crime of stalking, and thus insufficient to support the court‘s issuance of a CPO on that ground.
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.”
We have not delineated the contours of the statutory exception for “constitutionally protected activity,” and the text of
A. Protection for Speech About Matters of Private Concern
The trial court ruled that neither the email to the firm nor the Facebook messages were protected communications for purposes of
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., 553 U.S. 591, 600 (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, 461 U.S. 138, 147 (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.“).2
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. 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.
Although we deem it premature to address in depth the additional questions discussed in Judge Beckwith‘s dissenting opinion, we would not remand for further
Without expressing an ultimate view on that question, we mention some issues the trial court should consider. What follows should not be construed in any way as a comprehensive summary of the First Amendment issues that are raised. It is intended, rather, to refer to several points that should be considered in addition to those discussed by Judge Beckwith.
B. Settled Exceptions to First Amendment Protection of Speech
United States v. Stevens, 559 U.S. 460 (2010), discussed categories of speech that are not entitled to protection under the First Amendment. In that case, Congress had criminalized the creation, sale, or possession of certain depictions of animal cruelty: only the portrayal of animal cruelty (as opposed to the underlying conduct itself) was criminal under this statute. Id. at 464-65. The Court held that the statute was unconstitutionally overbroad, stating that the government may only proscribe speech that falls into certain “well-defined and narrowly limited classes of speech,” such as obscenity, fraud, defamation, or speech integral to criminal conduct — all categories of speech that historically had not merited First Amendment protection. See id. at 468-69. In the Court‘s words, “[t]he First Amendment‘s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.” Id. at 470. The Court rejected the government‘s argument that depictions of animal cruelty should be added to the list. See id. at 469; see also, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (stating that content-based restrictions on speech are “presumptively invalid“).
Mr. Boone focuses his argument on “speech integral to criminal conduct,” an 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., 336 U.S. 490, 498 (1949) (upholding injunction barring labor union from picketing in an effort to pressure a company to violate state trade laws); United States v. Williams, 553 U.S. 285, 297-98 (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.”3
Some courts have rejected such reasoning as circular, see, e.g., Matter of Welfare of A.J.B., 929 N.W.2d 840, 852 (Minn. 2019) (concluding that “the communication
That view is not unanimous, however, as various cases applying the interstate stalking statute,
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, 907 F.3d 67, 73, 78 (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, 753 F.3d 939, 947 (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, 701 F.3d 849, 855-56 (8th Cir. 2012) (“the interstate stalking statute is viewpoint neutral“; it is directed toward courses of conduct, not speech); see also Giboney, 336 U.S. at 502 (“[I]t has never been deemed an abridgement of freedom of speech or press to
IV.
The revised civil protection order entered on April 12, 2016, is hereby vacated, and this case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
BECKWITH, Associate Judge, dissenting: The trial court in this case found that Lauren Mashaud committed the offense of stalking when he sent an email message and a Facebook message to Christopher Boone‘s friends, family, and coworkers commenting on Mr. Boone‘s romantic relationship with Mr. Mashaud‘s wife. Having rejected Mr. Mashaud‘s contention that his messages were constitutionally protected and thus outside the reach of the stalking statute, the court entered a civil protection order against Mr. Mashaud (ordering him, among other things, to pay for Mr. Boone‘s therapy and to stop talking about Mr. Boone on social media). My colleagues in the majority now hold that the trial court erred in determining that because Mr. Mashaud‘s messages involved “matters of purely private rather than public concern,” they were not constitutionally protected. In concluding that the trial court‘s “analytic misstep” “requires a remand,” the majority forgoes deciding the central and squarely presented question in this case—what it actually means to be constitutionally protected under the statute.
This court should decide now what D.C.‘s stalking law means when it states that it “does not apply to constitutionally protected activity.”1
On the merits, the most sensible reading of
Idiot‘s Registry.” Superior Court Judge Todd Edelman described the statute this way: “[T]he ultimate question before the Court was not whether the stalking statute is unconstitutional, or whether applying the statute to [the respondent there] would violate his constitutional rights.” Id. at *2. The question was whether “the conduct engaged in by [the respondent] qualified as ‘constitutionally protected activity.‘” Id. If it did, then the respondent “simply did not commit the offense of stalking under District law.” Id. The court in Gray characterized “constitutionally protected activity” as speech that “did not fall into any of [the] unprotected categories” singled out by the Supreme Court. Id. at *6 (referring to Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.“)). It accordingly denied the CPO after determining that the respondent‘s conduct did not fall within one of the “few categories of speech” that “are not afforded any First Amendment protection.” Id.4
This interpretation of the statute is both more plausible and less prone to constitutional challenge than any suggestion that
Sobin, while both parties here address the constitutional validity of the stalking statute as applied to Mr. Mashaud‘s conduct, we have no reason to analyze the statute‘s constitutionality if the messages sent by Mr. Mashaud qualify as constitutionally protected speech.
Mr. Boone argues, among other things, that the trial court was correct in concluding that Mr. Mashaud‘s email and Facebook messages were not constitutionally protected speech because they involved matters of private concern. As the majority makes clear, however, the trial court “misapprehend[ed] the extent of protection provided by the First Amendment for communications about matters of purely private concern.” Ante at 9. Although speech involving matters of public interest “occupies the ‘highest rung of the hierarchy of First Amendment values,‘” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)), speech regarding private matters is still constitutionally protected, though “its protections are less stringent.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760 (1985); see also Connick, 461 U.S. at 147.6
Mr. Boone argues, in the alternative, that Mr. Mashaud‘s messages to Mr.
Mr. Boone suggests that Mr. Mashaud‘s speech was integral to criminal conduct because it was statutorily proscribed by the District‘s stalking statute. As my colleagues in the majority point out, see ante at 13–14, 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.” Burroughs v. Corey, 92 F. Supp. 3d 1201, 1209 n.16 (M.D. Fla. 2015) (agreeing with the appellant‘s assertion that an argument that certain speech constituted speech integral to criminal conduct was circular “because the speech is only integral to criminal conduct because this statute criminalizes the conduct“), aff‘d, 647 F. App‘x 967 (11th Cir. 2016); see also, e.g., United States v. Matusiewicz, 84 F. Supp. 3d 363, 369 (D. Del. 2015) (“Under the broadest interpretation [of Giboney], if the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense.“). This view makes sense. See Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981, 1035–43 (2016); see also id. at 1011 (“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. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). The Giboney exception is best understood as a rationale for our “long established criminal proscriptions” on speech “intended to induce or commence illegal activities.” Williams, 553 U.S. at 298; see also United States v. Hobgood, 868 F.3d 744, 747 (8th Cir. 2017); Burroughs, 92 F. Supp. 3d at 1209 n.16.
Here, Mr. Mashaud‘s communications were found to be criminal conduct because they fell within the statutory definition of stalking. As there is no suggestion that Mr. Mashaud‘s messages reflected an intent to induce or commence any other crime, this speech did not lack constitutional protection on the ground that it was integral to criminal conduct. See United States v. Cassidy, 814 F. Supp. 2d 574, 582–87 (D. Md. 2011) (finding defendant‘s disparaging and vulgar Twitter and blog posts about another person were not speech integral to criminal conduct and
Although the majority reviews some of the case law relevant to Mr. Boone‘s speech-integral-to-criminal-conduct argument, in the end it declines to decide the question and invites the trial court to address it on remand. Ante at 12–16. But this is a legal question, fully briefed and conducive to resolution by this court on appeal. See Ifill v. District of Columbia, 665 A.2d 185, 190 n.7 (D.C. 1995) (“The inquiry into the protected status of speech is one of law, not fact.” (quoting Connick v. Myers, 461 U.S. 138, 148 n.7 (1983))).7
Rather than leave the trial court with the confusing task of determining for a third time, in the absence of this court‘s interpretation of “constitutionally protected activity,” whether Mr. Mashaud‘s communications were exempted from the stalking statute on that ground, we should hold that: (1)