The D.C. law against stalking (D.C. Code sections 22-3131 to 22-3135) makes it a crime to “purposefully engage in a course of conduct directed at a specific individual [w]ith the intent to cause that individual to [f]ear for his or her safety or the safety of another person; or [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress.” To “engage in a course of conduct” is defined to include “communicat[ing] to or about another individual.” A victim of stalking can also get an “Anti-Stalking Order,” ordering the stalker to stop his conduct, stay away from the victim, etc.
Apparently recognizing that a law making “communicat[ion]” a crime risks the prosecution of speech protected by the First Amendment, the law provides that “[t]his section does not apply to constitutionally protected activity.” § 22-3133(b). But the D.C. Court of Appeals has never explained what that means.
In this case, Dr. Mashaud’s wife had a brief affair with Mr. Boone. She was an intern at the company where he was a vice president. Dr. Mashaud disclosed the affair to the Human Relations Department at Mr. Boone’s company and to some of Mr. Boone’s Facebook friends. Mr. Boone then sued Dr. Mashaud and obtained an Anti-Stalking Order against him. The Superior Court judge ruled that Dr. Mashaud’s communications were not constitutionally protected activity because they were matters of private rather than public concern.
In August 2021, the D.C. Court of Appeals reversed that decision, explaining that the First Amendment’s protection is not limited to matters of public concern. But the court did not rule that Dr. Mashaud’s communications were constitutionally protected activity, and sent the case back to the Superior Court without any guidance on the meaning of that phrase, other than a suggestion that it was relevant whether Dr. Mashaud’s conduct “served no legitimate purpose.”
Mr. Boone petitioned the Court of Appeals to rehear the case en banc to provide such guidance. In October 2021 we filed an amicus brief in support of that petition, noting that there will be approximately 900 requests for anti-stalking orders filed in Superior Court this year, and that Superior Court judges need to know what the law means. We also noted that First Amendment protection is not limited to speech that has a “legitimate purpose,” and that much of the #MeToo movement involves “naming and shaming” powerful men who have sexual relations with subordinate women.
In December 2021 the court granted rehearing en banc (meaning by the full court). We filed an amicus brief arguing that the statutory exemption for “constitutionally protected activity” must be construed to exempt speech unless the speech falls into one of the categories traditionally recognized as not protected, such as true threats, obscenity, or speech integral to other criminal activity. The case was argued in October 2022, and in June 2023 the court, by a vote of 6 to 2, agreed with us about the meaning of the exemption and ordered Mr. Boone’s lawsuit to be dismissed.