Narrowing the scope of DC's stalking statute

Lauren Mashaud’s wife had an affair with a vice president at a consulting firm where she was an intern. This led to a sequence of events that resulted in the D.C. Court of Appeals recent en banc decision in Mashaud v. Boone, 295 A.3d. 1139 (D.C. 2023).

The decision narrows the scope of D.C.’s stalking statute.

***

Devastated upon finding out about his wife’s affair with Christopher Boone, Mashaud sent an email to three employees at Boone’s firm, including a member of the human resources department. The purpose of the email, Mashaud wrote, was to alert them to a violation of the firm’s code of conduct. Boone later testified that the email left him feeling violated, threatened and embarrassed.

Three months later, Mashaud followed up on the email by sending private messages on Facebook to many of Boone’s family and friends. The purpose of the messages was to alert them to Boone’s affair so that they could “know the kind of person Christopher Boone” really is.

The messages left Boone feeling “violated” and “threatened.” He also expressed his “growing concern” about his personal safety.”

Finally, Mashaud created a blog called “The Power of Light and Truth” in which he discussed the affair and its aftermath while citing Boone by name.

Boone testified later that he was “taken aback” by the blog. Believing that Mashaud meant him physical harm, he also notified his employer and apartment complex, both of which implemented additional security protocols.

Boone filed a criminal complaint. He also filed for a civil protection order (CPO) on the grounds that Mashaud had committed the criminal offense of stalking. Although criminal charges were never filed, D.C. Superior Court Judge Fern Flanagan Saddler granted his request for a CPO.

***

Mashaud’s actions were clearly intended to embarrass Boone. But, as required by the District’s CPO statute, did they constitute stalking as alleged by Boone’s petition?

***

D.C.’s crimes code defines stalking as a “course of conduct directed at a specific individual” with the intent to cause that person to (1) fear for his/her own safety or the safety of another person, (2) feel seriously alarmed, disturbed or frightened, or (3) suffer emotional distress. As for the defendant’s state of mind, it is also sufficient for the government to prove that the defendant knew or should have known that his/her actions would cause such an emotional reaction on the part of the target of the activity.

“Emotional distress” is defined as “significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.”

A “course of conduct” is defined as two or more occasions, with the defendant possessing the requisite mental state on each occasion.

The statute specifically excludes constitutionally protected activity.

***

The en banc decision in this case concluded that a plain language reading of the statute could prohibit all sorts of constitutionally protected speech.

In fact, it could even prohibit socially desirable speech, such as a doctor delivering news of a fatal disease or a police officer delivering news of the death of a loved one. Surely such communications, the court held, “send reasonable people to suffer emotional tailspins of distress.”

The only thing that saves the statute from being ruled unconstitutional for overbreath, the court’s majority opinion held, is its “savings” clause excluding constitutionally protected activity, including free speech, from the ambit of the statute.

As for the type of speech at issue in this case, that would exclude everything but “threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.”

As for the final category, “speech integral to criminal conduct,” you could not argue in this case, as Boone attempted to, that Mashaud’s speech was integral to his stalking: “This argument,” the court held, “is fatally circular.” The speech “must be integral to conduct that constitutes another offense that does not involve protected speech.”

Examples would include such crimes as solicitation or conspiracy, “which encourage others to participate in and thereby advance a non-speech offense.”

The court continues: “It makes no sense as an exception of the speech both constitutes the crime itself and thereby avoids First Amendment protections by being integral to its own commission . . . An exception like that would swallow the First Amendment whole . . . “

***

The First Amendment protects all sorts of speech, including speech that is “upsetting or arouses contempt.”

In determining whether or not free speech is implicated, the key question is whether the content of the speech matters. If the content does matter, then it is subject to First Amendment protections.

In this case, the court concluded that Mashaud’s speech did not fall into one of the limited exceptions to the First Amendment.

For example, 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 his speech was neither obscene nor fraudulent.