Mashaud v. Boone ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-FM-0383
LAUREN MASHAUD, APPELLANT,
V.
CHRISTOPHER BOONE, APPELLEE,
AND
DISTRICT OF COLUMBIA, INTERVENOR.
Appeal from the Superior Court
of the District of Columbia
(2014-CPO-000739)
(Hon. Fern Flanagan Saddler, Trial Judge)
(Argued En Banc October 18, 2022 Decided June 8, 2023)
Matthew B. Kaplan for appellant.
Governor E. Jackson, III for appellee.
Ashwin P. Phatak, Principal Deputy Solicitor General, with whom Karl A.
Racine, Attorney General for the District of Columbia at the time, Caroline S. Van
Zile, Solicitor General, Graham E. Phillips, Deputy Solicitor General, and Jeremy
R. Girton, Assistant Attorney General, were on the brief, for intervenor.
Eugene Volokh, of the bar of the State of California, pro hac vice, by special
leave of court, with whom Gene C. Schaerr, Erik S. Jaffe, and Joshua J. Prince were
on the brief, for Professor Eugene Volokh and Protect the First Foundation as amicus
curiae in support of appellant.
2
Arthur B. Spitzer and Scott Michelman were on the brief for American Civil
Liberties Union of the District of Columbia as amicus curiae in support of appellant.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH, EASTERLY,
MCLEESE, DEAHL, HOWARD, ALIKHAN, and SHANKER, ∗ Associate Judges.
Opinion for the court by Associate Judge DEAHL, with whom Chief Judge
BLACKBURNE-RIGSBY and Associate Judges BECKWITH, EASTERLY, and SHANKER
join in full, and Associate Judge HOWARD joins as to all but Part III.C.
Opinion by Associate Judge MCLEESE, with whom Associate Judge ALIKHAN
joins, dissenting in part and concurring in the judgment, at page 71.
DEAHL, Associate Judge: The First Amendment restricts the government’s
ability to prohibit and punish speech. Its protections extend to speech that is
offensive, outrageous, and emotionally distressing. As just one example, the
Supreme Court has recognized that the First Amendment protects the right of
protesters at military funerals to proclaim “Thank God for IEDs,” “Thank God for
9/11,” “Thank God for Dead Soldiers,” and “You’re Going to Hell.” Snyder v.
Phelps, 562 U.S. 443, 448 (2011). When it comes to expression, the First
Amendment precludes the government from policing the bounds of polite society.
∗
Senior Judge Glickman was a member of the en banc court at the time of
argument. On December 21, 2022, he began his service as a Senior Judge and was
replaced as a member of the en banc court by Associate Judge Shanker. See D.C.
Code § 11-705(d); D.C. App. I.O.P. XI(C).
3
This appeal requires us to consider whether the District’s stalking statute can
be reconciled with the First Amendment. That statute makes it a criminal offense to
engage in a course of conduct—including two or more “communicat[ions] to or
about another individual”—that one knows or should know would reasonably cause
another to suffer emotional distress. D.C. Code §§ 22-3132(8)(A), -3133. By its
terms, it restricts all manner of speech, without regard to its truth or falsity, and
without regard to whether it is of public or purely private concern. The constitutional
problems with the statute are glaring. See Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-
neutral basis for regulation.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)
(“Content-based regulations are presumptively invalid.”); Garrison v. Louisiana,
379 U.S. 64, 74 (1964) (“Truth may not be the subject of either civil or criminal
sanctions where discussion of public affairs is concerned.”).
People are generally allowed to say things that they know or should know will
cause others emotional distress. Such speech is frequently socially valuable or, at
the very least, accepted. Doctors tell patients that they likely have only months to
live, or more distressing yet, that their children do. Spouses may knowingly inflict
emotional distress by revealing a longstanding paramour and demanding a divorce.
Police officers bring news of loved ones having been killed. Judges pronounce death
4
sentences. All of those messages undoubtedly trigger extraordinary distress, and as
a result, they are prohibited by the stalking statute’s plain terms (at least if the
messages need repeating). The statute is unconstitutional if read in that
straightforward fashion, as “[s]peech may not be banned on the ground that it
expresses ideas that offend.” Matal v. Tam, 582 U.S. 218, 223 (2017).
But the stalking statute has a savings clause, and we granted en banc review
in this case to resolve its meaning. The stalking statute provides that “[t]his section
does not apply to constitutionally protected activity.” D.C. Code § 22-3133(b). To
save the District’s stalking statute from unconstitutionality, we interpret this clause
to mean that, when speech is at issue, the statute covers only speech that fits within
the “well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem.”
United States v. Stevens, 559 U.S. 460, 468-69 (2010) (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942)). That includes threats, obscenity,
defamation, fraud, incitement, and speech integral to criminal conduct. Id. at 468.
Outside of those narrow categories, speech is constitutionally protected activity that
the statute does not apply to.
5
In this case, the Superior Court found that there was good cause to believe that
Lauren Mashaud, a married man, stalked Christopher Boone when he truthfully
revealed to Boone’s family, friends, and colleagues that Boone had an affair with
Mashaud’s wife. Mashaud now appeals. Because Mashaud’s speech was
constitutionally protected activity—i.e., it does not fit within any of the categories
outside of the First Amendment’s protections—we conclude that he did not stalk
Boone. We therefore reverse.
I.
Boone’s Affair and Mashaud’s Exposure of It
This case stems from an extramarital affair between Boone and Mashaud’s
wife, Kimberly Weatherspoon. 1 They met while working together at a consulting
firm, where Weatherspoon was an intern and Boone was a vice president. After
attending a company happy hour together, the two struck up a months-long affair.
Boone testified that when the affair started, he believed Weatherspoon was in a
“rocky relationship” with a boyfriend. According to Boone, when Weatherspoon
1
The facts are largely undisputed, though we rely on the trial court’s factual
findings to resolve any inconsistencies in the evidence.
6
finally disclosed that she was in fact married, he was “in a complete state of shock
and disbelief” and told her that he could not knowingly engage in an extramarital
affair. The next day, Weatherspoon told Boone that her husband, Mashaud, had
found out about the affair. Mashaud was so upset that “he did not sleep for 48
continuous hours.” While Weatherspoon told Mashaud that the affair was over, it
in fact continued for about two more months.
A couple of months after Mashaud first learned of the affair, and around the
same time it in fact came to an end, Mashaud sent an email to three employees of
Boone’s firm. At least one of those employees was a member of the firm’s human
resources department, the others were described only as “select directors” of the
firm, and Boone was cc’d on the email as well. The email’s subject line was,
“Christopher Boone – No Contact/Harassment,” and its stated purpose was “to bring
a matter to [their] attention that may be a violation of [the firm’s] Code of Conduct
and/or other policies, procedures, business ethics, and character or standard of the
Company.” The email went on to state that:
Christopher Boone and my wife, Kimberly Weatherspoon,
are involved in an extramarital affair that took place,
primarily, in the workplace. Aside from the potential
sexual harassment claims the situation presents, it also
involves the inappropriate use of company resources and
assets. Christopher Boone and Kimberly Weatherspoon
have used company time and company resources to further
7
their affair. . . . I will anticipate a response from you once
you have investigated these concerns and taken
appropriate corrective action.
Boone testified that the email left him feeling violated, threatened, and embarrassed.
Boone replied via email, telling Mashaud that he “would prefer that you leave me
and my personal/business relationships out of a situation that is clearly between you
and your wife.” Boone added an apparent invitation to fisticuffs: “If you are a man
. . . I am more than happy to talk, meet, or whatever any time you’re ready.”
Mashaud did not respond.
About three months later, Mashaud tracked down some of Boone’s family and
friends on Facebook and messaged them about the affair. As Mashaud explained,
the privacy settings of Boone’s Facebook account were configured so that anybody
could see a list of people who had “liked” his photographs. And at the time,
Facebook allowed users to pay to send messages to any other user, even if the two
had no connection. Using this feature, Mashaud individually sent messages to at
least fifteen people who had liked Boone’s photos. Each message began by telling
the recipient that they “should know the kind of person Christopher Boone really is.”
It went on to explain that Boone “had a sexual affair with [Mashaud’s] wife” and
that Boone showed he lacked “integrity and respect for himself” by “fail[ing] to
respect the boundaries of a married woman.” Mashaud attached a photo of Boone
8
with Weatherspoon to his messages, which he closed with a Bible verse: “There is
nothing covered that won’t be uncovered, nothing hidden that won’t be made
known,” citing Luke 12:2-3. Several recipients alerted Boone to these messages,
and he testified that they again left him feeling “violated [and] threatened.” He
further testified to his confusion as to how Mashaud had obtained his friends’ and
family members’ contact information, and he described his growing concern about
his personal safety.
Mashaud also created a blog called “The Power of Light and Truth” discussing
the affair and its aftermath. The publicly accessible blog repeatedly mentioned
Boone by name, included at least five photographs of him, and identified his
employer. Mashaud also “tagged” Boone by name in his posts so that internet
searches for Boone’s name would return hits to the blog detailing Boone’s affair
with Weatherspoon. For example, one post—titled “His name is Christopher
Boone”—purported to “put a name and a face” to Boone and included links to his
social media accounts and work profile. When Boone saw the blog, several months
after he learned of the Facebook messages, “he was taken aback.” Believing that
Mashaud meant him physical harm, he notified his employer and apartment
complex, both of which implemented additional security protocols. He also filed a
police report and “started to see a mental health therapist for fairly aggressive
9
treatment . . . in a 12-week treatment program.” Finally, Boone filed a petition in
D.C. Superior Court for a civil protection order, or CPO.
Superior Court and Appellate Proceedings
Boone sought a CPO on the basis that Mashaud had committed a criminal
offense against him, namely, stalking. The trial court could issue a CPO so long as
it concluded by a preponderance of the evidence that Mashaud had “committed or
threatened to commit a criminal offense against” Boone. D.C. Code § 16-1005(c).
Boone, Mashaud, and Weatherspoon all testified at a bench trial. Mashaud
did not deny sending the various messages or authoring the blogposts, but instead
argued (1) that his communications to and about Boone were protected by the First
Amendment, and (2) that even if they were not protected, the messages would not
have caused a reasonable person in Boone’s shoes to fear for their safety, feel
seriously alarmed, or suffer emotional distress. See D.C. Code § 22-3133.
The trial court disagreed as to both points. It reasoned that Mashaud’s
communications were not constitutionally protected because they were not
10
“regarding matters of public concern” but “of a purely private nature.” 2 The court
then found by a preponderance of evidence that Mashaud had stalked Boone,
concluding that a reasonable person in Boone’s shoes would be “seriously alarmed,
annoyed, frightened, or tormented” by Mashaud’s email message, Facebook
messages, and blogposts. The court therefore issued a CPO. The CPO ordered both
Mashaud and Weatherspoon to stay away from Boone’s person, home, workplace,
and vehicle; not to contact Boone in any manner; and not to “communicate about
[Boone] by name or by implication on the internet or social media.” The court
further ordered Mashaud to enroll in a domestic violence intervention program and
to pay Boone $1,800 as reimbursement for his therapy.
Mashaud appealed, arguing (1) that his statements were protected by the First
Amendment and (2) that the trial court had erroneously applied a repealed version
of the stalking statute, which had since been amended to omit conduct that merely
“annoys” or “torments” another. We agreed with Mashaud on the second ground
while reserving judgment as to Mashaud’s First Amendment challenge. We reversed
the CPO and remanded for the trial court to make findings tethered to the revised
2
The court opined that some of Mashaud’s blogposts concerned topics of
public concern, but reasoned that the posts that reference Boone by name “or include
other personal information or details about [Boone], those ones are not
constitutionally protected speech.”
11
statute. Mashaud v. Boone, No. 14-FM-894, Mem. Op. & J. at 2 n.2, 4-5 (Feb. 29,
2016).
On remand, the trial court again rejected Mashaud’s constitutional challenge.
The court drew a bright line between speech regarding matters of public concern and
matters of private concern, describing the former as “usually deemed
constitutionally protected” and the latter as “less protected, if protected at all.”
Relying on this distinction, the court found—contrary to its earlier ruling—that all
of the blogposts were constitutionally protected speech because they touched on
matters of public concern (i.e., marriage and extramarital affairs). Conversely, it
determined that neither the email nor the Facebook messages were constitutionally
protected speech, as they involved matters of purely private concern. It then applied
the current version of the stalking statute to the email and Facebook messages and
once again found that Mashaud had stalked Boone. Describing Mashaud’s conduct
as “clearly demonstrat[ing] a vindictive motive,” the court concluded that he had
“engaged in this behavior repeatedly . . . with the intent to cause [Boone] to feel
seriously alarmed, disturbed, or frightened or suffer emotional distress.” It also
found that “any reasonable person” in Boone’s shoes “would feel seriously alarmed,
disturbed, or frightened,” or would “suffer[] emotional distress” in response to
Mashaud’s conduct. The court thus reissued the CPO.
12
Mashaud appealed for a second time, once again arguing that the District’s
stalking statute infringed upon his First Amendment rights. A division of this court
again did not reach that question, instead ruling that the trial court had
“misapprehend[ed] the extent of protection provided by the First Amendment” when
it suggested that speech of purely private concern was not constitutionally protected.
Mashaud v. Boone, 256 A.3d 235, 239 (D.C. 2021). After correcting that misstep,
the division opted to remand back to 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.” Id. Judge Beckwith dissented,
arguing that Mashaud’s constitutional arguments were “fully briefed and conducive
to resolution by this court on appeal,” so it did not make sense to “leave the trial
court with the confusing task of determining for a third time” whether Mashaud’s
speech was covered by the stalking statute. Id. at 246. Judge Beckwith concluded
that the most sensible reading of the stalking statute was that it applies only to those
“categories of speech the Supreme Court has recognized as unprotected by the First
Amendment.” Id. at 243.
Boone petitioned for en banc review and Mashaud joined his request, as did
the American Civil Liberties Union of D.C. as amicus. In framing the issue that they
agreed merited this court’s en banc review, they asked us to determine how best to
13
interpret the stalking statute’s savings clause: “This section does not apply to
constitutionally protected activity.” D.C. Code § 22-3133(b). We granted en banc
rehearing and vacated the division’s opinion. Mashaud v. Boone, 269 A.3d 1022(D.C. 2021) (order).
II.
Before considering what the stalking statute’s savings clause means when it
exempts constitutionally protected activity, we first consider whether the evidence
was sufficient to find that Mashaud stalked Boone independent of that clause. While
Mashaud raises this argument, it is the District, as intervenor, that most forcefully
presses the view that the evidence was insufficient to find that Mashaud had stalked
Boone. No member of the division endorsed that view, though if it were correct, it
would obviate the need to interpret the savings clause. 3
3
When the parties jointly pressed this court to grant en banc review, neither
suggested this sufficiency claim was among the issues we should consider and
Mashaud did not even allude to any sufficiency argument when pressing us to grant
en banc review. We might exercise our discretion to bypass this question entirely
on that ground alone, and treat Mashaud’s failure to press his sufficiency argument
at the petition stage as a waiver of the claim. See Yarbrough v. Decatur Hous. Auth.,
931 F.3d 1322, 1327 (11th Cir. 2019) (bypassing a question “[g]iven the narrow
question presented for en banc review”); cf. Granite Rock Co. v. Int’l Bhd. of
Teamsters, 561 U.S. 287, 306 (2010) (“argument is properly ‘deemed waived’”
where no party raised it at the certiorari stage). Because our dissenting colleagues
14
The District’s sufficiency challenge falters on two independent grounds.
First, we have no basis to reject the trial court’s findings that Mashaud intended both
his initial email and various Facebook posts to cause Boone emotional distress, D.C.
Code § 22-3133(a)(1), a finding we owe considerable deference to. Second, the
evidence was sufficient to support the trial court’s conclusion that a reasonable
person in Boone’s shoes would have been emotionally distressed by the email, the
Facebook messages, and Mashaud’s blogposts. Id. § 22-3133(a)(3). We discuss
those points, respectively, in Parts II.A and II.B below. But first, we lay some legal
groundwork.
The District’s stalking statute makes it a criminal offense to “engage in a
course of conduct directed at a specific individual” with the intent to cause them to
“(A) Fear for his or her safety or the safety of another person; (B) Feel seriously
alarmed, disturbed, or frightened; or (C) Suffer emotional distress.” D.C. Code
§ 22-3133(a)(1). For concision’s sake, we refer to those emotional states
collectively as “emotional distress,” the broadest of the three categories. Even where
a defendant lacks the intent to inflict emotional distress, they will violate the stalking
statute if they engage in a course of conduct that they know or “should have known
endorse a version of the sufficiency argument advanced by Mashaud and the District,
we exercise our discretion to address it.
15
would cause a reasonable person” to suffer emotional distress. Id. § 22-3133(a)(3).
In either case, the statute does not require any showing that the targeted person in
fact suffered emotional distress; it is enough that the defendant intended such distress
or should have known that a reasonable person would suffer it. 4
The statute further defines “emotional distress” as “significant mental
suffering or distress that may, but does not necessarily, require medical or other
professional treatment or counseling.” Id. § 22-3132(4). It specifically covers
“communicat[ions] to or about another individual.” Id. § 22-3132(8)(A). Finally,
to “engage in a course of conduct” requires “2 or more occasions” of distressing
conduct, id., and the defendant must “possess[] the requisite mental state” on each
4
Our colleagues seem to interpret the statute as demanding evidence that
Boone in fact suffered emotional distress, but that is not a statutory requirement. See
Coleman v. United States, 202 A.3d 1127, 1146 n.24 (D.C. 2019). For instance, they
highlight that while the trial court credited Boone’s repeated testimony that Boone
felt threatened by the initial email, he later seemed to contradict himself on that
score. While we doubt it matters, and we attach no significance to that particular
finding, our role on sufficiency review is to draw all reasonable inferences in favor
of the trial court’s ruling, and there was plenty of evidence (even if one
inconsistency) that Boone felt threatened by that initial email. It was for the trial
court to resolve that inconsistency, and for us to defer to it. Medina v. United States,
61 A.3d 637 (D.C. 2013) (“[I]t is the duty of the finder of fact to reconcile such
inconsistencies” in witness testimony.). As we have said, the point is ultimately
immaterial to our sufficiency analysis, though we think there is plenty of evidence
to support the trial court’s finding that Boone in fact suffered emotional distress in
response to the email alone.
16
of those two (or more) occasions of distressing conduct, Coleman v. United States,
202 A.3d 1127, 1140 (D.C. 2019). 5
That last part is critical to how the District frames its argument: (1) it argues
that the trial court’s most recent order found stalking based on the email message
and Facebook messages alone, without regard to the blogposts, so we should follow
suit; (2) it asserts that the Facebook messages should be viewed as a single unitary
act, so that if either the email message or the Facebook messages were not
sufficiently distressing (or intended to be sufficiently distressing), then Mashaud did
not stalk Boone; and (3) it then takes primary aim at the email message as too
innocuous to be emotionally distressing, either in design or in effect. The dissent
accepts that framing of the sufficiency argument, and agrees with the District’s
conclusion (with the aid of an interpretive gloss, discussed in Part III.C). In our
view, the framing is faulty and the conclusion unwarranted. The first premise is
mistaken, the second is dubious, and the conclusion is wrong in any event.
5
It is not obviously true from the statutory language alone that a defendant
must possess the requisite mental state on each of two (or more) occasions, as
opposed to merely engaging in a course of conduct while possessing the requisite
mental state at some point along the way. But in Coleman we held that the defendant
needed the requisite mental state on at least two occasions to constitute stalking, and
no party asks us to revisit that ruling today, so we will not scrutinize it.
17
Contrary to the District’s view, we cannot discount the blogposts as irrelevant
to the sufficiency equation. The trial court found that those blogposts were part of
Mashaud’s criminal course of conduct when it initially granted a CPO against him,
and that the blogposts would cause a reasonable person in Boone’s shoes to suffer
emotional distress. While the court did not again rely on those blogposts after our
initial remand, that was only because it found they were of “public concern” and
thus fell outside of the stalking statute’s reach entirely. But nobody—not Mashaud,
the District, Boone, the amici, or our dissenting colleagues—defends that reasoning.
As explained by the division (unanimous on this point), the trial court was operating
on the faulty premise that there is a public/private dichotomy as to speech, with the
former enjoying absolute protection, and the latter receiving none. See Mashaud,
256 A.3d at 239. Disabused of that fallacy, there is no reason to ignore the blogposts
when evaluating the sufficiency of the evidence.
Our colleagues assert that Boone did not challenge the trial court’s decision
to discount the blogposts. We disagree. In his en banc brief, Boone highlights the
blogposts as the third activity in Mashaud’s course of conduct that amounted to
stalking, noting that Mashaud acted with the “intent of trying to permanently sully
the personal and professional reputation of Mr. Boone” by “includ[ing] tags in the
blog posts so that the blog was easily discoverable upon a Google search.” He then
18
made a more pointed attack on the trial court’s decision to discount the blogposts,
noting that the stalking statute’s plain terms “encompass communications
irrespective of the means—including a ‘blog’” in which Mashaud “was not generally
espousing his views on extramarital affairs in an informational manner. Rather, he
was intentionally using the Internet as his weapon of choice.” Our colleagues have
also rejected the trial court’s reasoning that statements of public concern are not
covered by the stalking statute—their interpretation contains no such carve-out—so
their refusal to apply their own test to those blogposts is puzzling.
It is also far from clear that we should treat the fifteen or more Facebook
messages sent separately to distinct users as one collective act, rather than as separate
acts, a critical component of our colleagues’ rationale that they never justify. The
District’s only basis for urging us to treat them as a single act is its assertion, without
citation, that “Boone has always characterized Mashaud’s Facebook messages as a
single act.” That’s wrong. Boone says exactly the opposite: that Mashaud “did not
pay to have one Facebook message sent, but paid in separate, distinct, multiple
transactions to have messages sent . . . thereby furthering the legitimacy of the trial
court’s finding that there was an engagement in a ‘course of conduct.’” The District
points to nothing in the trial court record where Boone conceded they should be
treated as a unitary act, and we do not detect such a concession ourselves.
19
Nonetheless, because the evidence is sufficient even if we treat the Facebook
messages as a single act in Mashaud’s course of conduct, we will accept for the sake
of argument this premise of the District’s position.
As for the District’s conclusion that Mashaud’s conduct was too innocuous to
be emotionally distressing, either in design or in effect, we now address why that is
mistaken. We first explain why the trial court was not plainly wrong to find that
Mashaud intended both his email message and Facebook messages to be emotionally
distressing. We then explain why it did not err in concluding that the email message,
Facebook messages, and blogposts would cause a reasonable person in Boone’s
shoes to suffer emotional distress.
A. The Record Supports the Findings that Mashaud
Intended to Cause Boone Emotional Distress.
“In reviewing the sufficiency of evidence in a bench trial, this court will not
reverse unless an appellant has established that the trial court’s factual findings are
plainly wrong or without evidence to support them.” Holmon v. District of
Columbia, 202 A.3d 512, 521 (D.C. 2019) (citing Jones v. United States, 67 A.3d
547, 549 (D.C. 2013)). The trial court’s first basis for granting a CPO was that
Mashaud’s email and Facebook messages each “demonstrated a vindictive motive”
and that he sent them “with the intent to cause [Boone] to feel seriously alarmed,
20
disturbed, or frightened or suffer emotional distress.” See D.C. Code § 22-
3133(a)(1). That finding alone establishes a stalking charge under the terms of § 22-
3133(a)(1), no matter whether a reasonable person in Boone’s shoes would in fact
have found those messages emotionally distressing.
Viewing the evidence “in the light most favorable” to the trial court’s ruling,
as we must on sufficiency review, we cannot say that no reasonable factfinder could
have concluded that Mashaud intended to cause Boone emotional distress when he
sent the email and Facebook messages. Johnson v. United States, 40 A.3d 1, 14
(D.C. 2012). We owe the trial court’s findings about Mashaud’s intent considerable
deference, particularly where Mashaud testified and questions of subjective intent
turn largely on credibility assessments. See Crawford-El v. Britton, 523 U.S. 574,
599 (1998) (disputes about intent “frequently turn on credibility assessments”);
Gaulden v. United States, 239 A.3d 592, 597 (D.C. 2020) (“We defer to a judge’s
reasonable ‘credibility determinations’ because such determinations are ‘the
appropriate function of the fact finder.’”).
1. The email message
Mashaud’s initial email to Boone’s colleagues, including at least one member
of his firm’s HR team, appears designed to get Boone fired. It begins by highlighting
21
that the matter at issue, an affair between a vice president and an intern, “may be a
violation of [the] Company’s Code of Conduct and/or other policies, procedures,
business ethics and character or standard of the Company.” It then details how the
affair “took place, primarily, in the workplace,” and notes “the potential sexual
harassment claims this situation presents.” It closes by demanding a response “once
you have investigated these concerns and taken appropriate corrective action.” It
raises a clear threat to Boone’s livelihood, an implied threat of sexual harassment
claims, and under the circumstances—where Boone does not dispute the truth of the
email’s contents—those threats stood a reasonable chance of bearing out. While the
statute defines emotional distress as “significant mental suffering or distress that
may” (but need not) require counseling, a substantiated threat to one’s livelihood,
financial wellbeing, and professional relationships clears that threshold. We see no
basis for concluding that the trial court was plainly wrong in finding that Mashaud
intended to cause Boone emotional distress. It is more than plausible—Mashaud
had a clear motive to want Boone to suffer—and has abundant support in the record,
most notably the email’s contents. The District offers three counterpoints.
First, it asserts that the trial court, in support of its initial CPO that we vacated
years ago, credited Mashaud’s claim that he “did not mean to cause anyone any
harm,” and the District asserts that this factual finding cannot be reconciled with the
22
trial court’s subsequent finding that Mashaud sent his email with an intent to cause
emotional distress. That’s wrong. For starters, while the trial court noted in its
findings that Mashaud “testified that he did not mean to cause anyone any harm,” it
never purported to credit that testimony. The trial court consistently noted the
aspects of Mashaud’s testimony that it found to be credible, and this claim was not
among them. Also, this snippet of the trial court’s recounting of Mashaud’s
uncredited testimony came in the context of discussing his blogposts, not his email
to Boone’s colleagues.
Second, the District claims that the record contained no “direct or indirect
evidence” of Mashaud’s mental state when sending the email to Boone’s employer.
We disagree. “Intent . . . must ordinarily be proved circumstantially,” Abdulshakur
v. District of Columbia, 589 A.2d 1258, 1263 (D.C. 1991), as people tend not to
admit to culpable states of mind. And here, there is no shortage of evidence that
Mashaud intended to cause Boone emotional distress. Start with the fact that Boone
had carried on a months-long affair with Mashaud’s wife, which is a strong reason
for Mashaud to want him to suffer. Then consider the contents of the email, leading
with “Christopher Boone – No Contact/Harassment” in the subject line, then
alluding to “sexual harassment claims” and demanding a response once “appropriate
corrective action” had been taken. Add in the fact that, having alerted Boone’s
23
colleagues to the affair, Mashaud did not stop there, but instead went on to message
dozens of Boone’s Facebook friends and then create a blog littered with Boone’s
personal information. 6 The trial court’s conclusion that Mashaud had “a vindictive
motive” for sending his email is not only plausible; it is nearly inescapable.
Third, the District asserts that the stalking statute “is not designed to
discourage truthful reporting of potential misconduct.” One would hope that is true,
but the plain terms of the stalking statute in fact capture such speech, and the District
offers no narrowing construction that would keep it from doing so. The narrowing
construction that we adopt in Part III would take truthful reports of potential
misconduct outside of the stalking statute’s reach as constitutionally protected
speech. Conversely, the District proposes no narrowing construction at all, but
instead would simply have us counterfactually declare that truthful reports of
misconduct will never cause, and can never be intended to cause, significant distress
in another. That view is remarkably unrealistic. There are few things more
emotionally distressing than one’s darkest misdeeds coming to light, and no reason
6
While we are here concerned only with Mashaud’s intent when sending the
email, his later acts can of course shed light on what that intent was.
24
to think that the rightly implicated suffer less distress than the falsely accused; 7 the
falsely accused can at least take some solace in the truth potentially absolving them.
While we doubt anybody intended the stalking statute to prohibit accurate reports of
misconduct, we cannot get around the statute’s plain text by simply pretending that
people do not in fact suffer distress from such reports. 8 Absent some narrowing
construction, the statute and the District are saddled with that absurdity.
2. The Facebook messages
The Facebook messages, sent about three months after that initial email,
present an even easier case. Recall that Mashaud had tracked down at least fifteen
of Boone’s Facebook friends—all strangers to Mashaud—and directly messaged
7
Consider the Madoff family, where Bernie and his wife Ruth attempted
suicide shortly after Bernie’s fraud was exposed. Madoff’s Wife Says Couple
Attempted Suicide: Report, Reuters, Oct. 26, 2011, https://www.reuters.com/
article/us-madoff-idUSTRE79P7NE20111026; https://perma.cc/T24V-6L2Q. Or
take Jeffrey Epstein and Aaron Hernandez as more recent high-profile examples of
suicides after heavily substantiated reports of criminal misconduct. While these are
extreme examples, with the distress undoubtedly amplified by arrests and
incarcerations, they illustrate the fallacy in the District’s position that truthful reports
of serious misconduct cannot cause extreme emotional distress.
8
The dissent also acknowledges that it would be absurd for the stalking statute
to proscribe truthful reports of misconduct, but their approach to avoiding that
absurdity is to say the statute does not apply to speech that is sufficiently righteous,
which is not a plausible reading of the statute (and would not cure its constitutional
overbreadth in any event). See infra Part III.C.
25
them to reveal “the kind of person Christopher Boone really is” and “the dark reality
of the[] affair.” He revealed to them the details of the affair and Boone’s “morally
reprehensible behavior,” including that it lasted for three months. The messages
explained that Boone’s friends and family should “know of his behavior” and
Boone’s “lack of integrity and respect for himself,” before attaching a picture of
Boone with Weatherspoon and closing with a Bible verse suggesting Boone could
not keep the affair hidden. The trial court was not plainly wrong to conclude that
Mashaud intended to cause Boone emotional distress through those numerous
Facebook messages. He had strong reason to want to hurt Boone—the man had
carried on an affair with his wife—and no other apparent reason for alerting so many
of Boone’s friends and family members to the affair.
The District makes a more halfhearted attack on this finding of intentionality,
describing it as “a closer call.” It makes two pointed attacks on it, each relegated to
a single sentence. First, it contends that the trial court’s finding of intentionality
“cannot be reconciled with” its earlier conclusion that Mashaud did not harbor such
an intent, an argument we have already rejected because the trial court never made
that asserted finding. Second, it stresses that Mashaud testified that “exposing the
affair to others was part of the process of healing his marriage.” But even if the trial
26
court credited that testimony, 9 the statute does not require that a stalker be motivated
solely by a desire to cause another emotional harm, so the point does not help the
District. Revenge and personal betterment are not mutually exclusive motivations.
For some, getting revenge on those who have wronged them is part and parcel of the
healing process. See generally Jeffrie Murphy, Getting Even: Forgiveness and Its
Limits (1st ed. 2003).
After detailing the evidence in the record, the trial court found that Mashaud
“intended, and I emphasize intended, to cause [Boone] to feel seriously alarmed,
disturbed, or frightened or to suffer emotional distress by sending Facebook
messages directly to [Boone’s] family and friends discussing personal matters.” The
record contains plenty of evidence supporting that conclusion.
B. The Record Supports that Mashaud Should Have Known He Would Cause
a Reasonable Person in Boone’s Shoes Emotional Distress.
Putting Mashaud’s intentions aside, the record was also sufficient to support
the trial court’s findings that Mashaud should have known his actions would cause
a reasonable person in Boone’s shoes to suffer emotional distress. The District again
9
It appears to have credited only the blogposts as being part of Mashaud’s
healing process, not the Facebook messages.
27
challenges the evidentiary basis for this finding, but its arguments are similarly
unpersuasive.
1. The email message
As we have already explained, Mashaud’s email message to Boone’s
colleagues, including an HR representative and “select directors” of the firm, was a
potent threat to Boone’s livelihood. A reasonable person in Boone’s shoes, having
been outed for carrying out an affair “primarily, in the workplace,” with a married
subordinate and intern, might reasonably suffer serious distress about the
consequences. They might reasonably suffer distress not only about losing their
immediate job, but also about their long-term professional prospects, particularly
given Mashaud’s reference to “sexual harassment claims” that are capable of sinking
careers.
The District disagrees, and asserts that having one’s extramarital affair
involuntarily exposed “would not cause a reasonable person to experience fear,
serious alarm, or emotional distress.” It seems implausible on its face to say that
such a revelation would not cause a reasonable person emotional distress. But even
if it were true, that grossly understates what Mashaud’s email exposed. He did not
merely reveal Boone’s affair; he plainly implied that Boone had sexually harassed
28
an intern under his supervision, that he did so using company time and resources,
that he would not leave her alone despite Weatherspoon’s requests, and that he
should face professional consequences for his misconduct. As the trial court found,
“a reasonable person would feel alarmed, disturbed, or frightened or suffer
emotional distress if an email was sent to their place of employment suggesting that
the person may have engaged in sexual harassment of a coworker.” We agree with
that assessment.
2. The Facebook messages
The same is true of the Facebook messages. The trial court made a finding
that Mashaud “knew or should have known that . . . sending Facebook messages
directly to [Boone’s] family and friends discussing personal matters . . . would cause
a reasonable person in [Boone’s] circumstances to feel seriously alarmed, disturbed,
or frightened or to suffer emotional distress.” That finding is well-supported by the
evidence.
The District counters that no reasonable person would have suffered
emotional distress as that term is properly understood, highlighting cases in which
we have described emotional distress as requiring “something markedly greater than
the level of uneasiness, nervousness, unhappiness or the like which is commonly
29
experienced in day to day living.” Coleman, 202 A.3d at 1145 (quoting Wallace v.
Van Pelt, 969 S.W.2d 380, 386 (Mo. Ct. App. 1998)). But who could doubt that a
reasonable person in Boone’s shoes would suffer distress markedly greater than day-
to-day worries? Having one’s family and friends alerted to an extramarital
workplace affair via Facebook message from a stranger, complete with pictorial
evidence of the “dark reality of their affair” and accusations of refusing to abide by
a no-contact request, is hardly just your ordinary day’s hardship.
3. The blogposts
Finally, the District does not question that Mashaud’s blogposts would cause
a reasonable person in Boone’s shoes to suffer emotional distress. And for good
reason. As the District acknowledges, publicizing another’s private information is
a quintessential example of how some stalkers “use indirect means to threaten or
monitor victims.” The Nat’l Ctr. for Victims of Crime, Model Stalking Code
Revisited 31 (2007). Mashaud’s blog, “The Power of Light and Truth,” repeatedly
identified Boone by name, included at least five photographs of him, and specifically
identified his employer. Boone’s discovery of the blogposts prompted him to file a
police report—thinking Mashaud meant him physical harm—and to notify his
employer so that it could implement additional security measures. Also, in tandem
30
with the email and Facebook messages, it caused Boone to start seeing “a mental
health therapist for [a] fairly aggressive . . . 12-week treatment program.” We do
not think that reaction was unreasonable, and it constitutes “significant mental
suffering . . . that may,” and in this case apparently did, “require medical or other
professional treatment or counseling.” D.C. Code § 22-3132(4).
Rather than disputing that the blogposts would cause a reasonable person
emotional distress, the District instead tries to take them out of the equation on the
ground that the trial court did not rely on them in its most recent CPO ruling. As we
explained above, unless the trial court’s purely legal basis for discounting the
blogposts was correct—and neither the District nor our dissenting colleagues opine
that it was—that is a mistake. The trial court never renounced or contradicted its
earlier findings that the blogposts would cause a reasonable person emotional
distress. 10 Those public blogposts, viewed by some “25 to 30 thousand people” in
10
To be sure, the trial court’s 2014 ruling was applying a superseded version
of the statute, but that fact would at most counsel in favor of a remand for it to apply
the correct statutory terms to the blogposts. Here, however, a remand is unwarranted
as (1) nobody asks for a remand, (2) we do not need further factual findings to make
our own assessment of whether the blogposts would cause a reasonable person in
Boone’s shoes to suffer emotional distress, see Coleman, 202 A.3d at 1137(reviewing de novo sufficiency claim under the stalking statute), and (3) presumably
the trial court would continue to find the blogposts sufficiently distressing if it
applied the proper statute, as they are at least as distressing as the email and
31
the first two months of the blog’s existence, were at least as distressing as the email
and Facebook posts. For all the same reasons the email and Facebook messages
were emotionally distressing, the blogposts were as well.
III.
That brings us to Mashaud’s primary argument: that by criminalizing
“communicat[ions] to or about another individual” that would reasonably inflict
emotional distress, the District has impermissibly restricted free speech, absent some
narrowing construction of the statute. He is correct about that. Amici in support of
Mashaud (the ACLU of D.C., Professor Eugene Volokh, and the Protect the First
Foundation) further argue that the statute is unconstitutionally overbroad and would
need to be struck down if it is not susceptible to a narrowing construction. Again,
we agree. The stalking statute’s plain terms prohibit a vast amount of speech—
regardless of its truth, social value, or relation to public debate—based on its content.
See Forsyth, 505 U.S. at 134 (“Listeners’ reaction to speech is not a content-neutral
basis for regulation.”). It is substantially overbroad and plainly contravenes the First
Amendment because it is not narrowly tailored to advance a compelling state
Facebook messages, both of which the court found would cause a reasonable person
to suffer emotional distress.
32
interest. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (“Content-
based laws—those that target speech based on its communicative content—are
presumptively unconstitutional and may be justified only if the government proves
that they are narrowly tailored to serve compelling state interests.”).
Yet we will not strike down a statute as substantially overbroad if it is “readily
susceptible to a narrowing construction that would make it constitutional,” Virginia
v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988), and that is where the
savings clause comes in. It exempts “constitutionally protected activity” from the
stalking statute’s reach. D.C. Code § 22-3133(b). For the reasons that follow, we
interpret this provision as narrowing the stalking statute’s scope, in relation to
communications to or about another person, to just those discrete categories of
speech that fall outside the scope of the First Amendment’s protections.
A. The Stalking Statute Is Substantially Overbroad
We begin by explaining why the stalking statute is substantially overbroad in
the absence of some narrowing construction. As a court we are unanimous that
serious concerns about the statute’s constitutionality require us to interpret the
statute narrowly. Unlike the dissent, we conclude that substantial overbreadth is not
just a serious concern, but a certainty, absent some narrowing construction.
33
To begin, the stalking statute is a content-based restriction on speech. If a law
requires “‘enforcement authorities’ to ‘examine the content of the message that is
conveyed to determine whether’ a violation has occurred,” it is a content-based
restriction. McCullen v. Coakley, 573 U.S. 464, 479 (2014). And here, to determine
whether a given communication would reasonably cause its target to suffer
emotional distress requires an examination of the content of the communication
itself. In short, the statute “draws distinctions based on the message a speaker
conveys.” Reed, 576 U.S. at 163. Communications that could reasonably cause
emotional distress are prohibited, whereas more innocuous statements are permitted.
Only Boone disputes this point, arguing that the stalking statute is merely a
content-neutral regulation of how “speech is used by an alleged stalker.” He
misunderstands what it means for something to be a content-based regulation of
speech. The statute applies to speech based on its content regardless of the manner
in which the speech is conveyed. Presumably, Boone would not have sought a CPO
had Mashaud emailed the consulting firm to praise him as a wonderful mentor to
Weatherspoon or messaged his Facebook friends with similar praise without the
affair in the background, and there is no reason to think that such messages would
have caused a reasonable person emotional distress. Whether the statute prohibits
34
Mashaud’s speech requires some examination of the content of his speech, and it is
therefore a content-based regulation. McCullen, 573 U.S. at 479.
To be sure, not all content-based regulations are unconstitutional. For
instance, the First Amendment “permits a State to ban a ‘true threat,’” see Virginia
v. Black, 538 U.S. 343, 359 (2003), and to determine whether something is a true
threat requires an examination of a statement’s content. But the stalking statute is
far broader than that, as it prohibits any speech that one should know would cause
another to feel “seriously alarmed, disturbed, or frightened” or suffer “emotional
distress.” D.C. Code § 22-3133(a). That does not merely creep over the line into
constitutionally protected areas; it sets up camp there.
Consider the perfectly ordinary and socially valuable speech that may put
others in serious emotional distress, but that the stalking statute’s plain terms
nonetheless prohibit (if repeated). Doctors deliver life-shattering prognoses that
surely send reasonable people to suffer emotional tailspins of distress. Spouses
knowingly inflict emotional distress by revealing longstanding paramours and
demanding divorces. Police officers deliver news of loved ones having been killed.
Judges pronounce death sentences. Employers tell staff that they are fired. They all
know, or should know, the extraordinary distress their messages bring, and so fall
35
within the statute’s prohibitions. 11 Distressing speech is an important and often
valuable part of life. A statute that prohibits speech indiscriminately based solely
on its propensity for causing such distress is a constitutional nonstarter.
What’s more, the statute’s broad scope applies not only to speech concerning
purely private matters, but also to communications on matters of public concern:
speech that “occupies the highest rung of the hierarchy of First Amendment values.”
Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). The
desire to elicit an extreme emotional reaction is “not an uncommon purpose, nor one
held only by a few evil people.” Eugene Volokh, One-to-One Speech vs. One-to-
Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U.L. Rev.
731, 773 (2013). Consider the abortion rights opponent who tells clinic staff that
they are murderers, or the animal rights activist whose messaging includes graphic
images of slaughtered, mangled, and deformed infant livestock. Both speak on
issues of public concern and are therefore entitled to the strongest First Amendment
protections. But both invariably intend to evoke deep emotional distress with the
hope of making their targets feel “socially ostracized . . . and emotionally racked
11
It is hard to imagine that any of this speech would be prosecuted, of course,
but that rejoinder is of little comfort to those with unpopular views to express. Those
with popular views seldom need the First Amendment’s protections; those with
unpopular views are its principal beneficiaries.
36
with guilt, regret, and a perception of social condemnation.” Id. at 773. Yet both
would be in violation of the plain text of the District’s stalking statute, which
includes no special carve-out for speech on matters of public concern.
It is a foundational principle of the First Amendment that “speech cannot be
restricted simply because it is upsetting or arouses contempt.” Snyder, 562 U.S. at
458. “The First Amendment protects lots of speech that is substantially emotionally
distressing.” United States v. Yung, 37 F.4th 70, 77 (3d Cir. 2022); see also United
States v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022) (“The Free Speech Clause
protects a variety of speech that is intended to . . . make another timid or fearful.”).
“If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414
(1989).
The District’s stalking statute runs headlong into that bedrock prohibition.
Absent some narrowing construction, the District’s statute would criminalize speech
at the heart of many touchstone First Amendment cases. Protesters carrying signs
reading “Thank God for IEDs” and “Thank God for Dead Soldiers” outside a
deceased service member’s funeral, Snyder, 562 U.S. at 460, would likely be stalkers
37
in the District, at least if their protests were repeated. The same is true for individuals
who display burning crosses, swastikas, and other hateful symbols despite knowing
that this expressive conduct will arouse “anger, alarm or resentment in others on the
basis of race, color, creed, religion or gender.” R.A.V., 505 U.S. at 380. A repeat
neo-Nazi march through a neighborhood that is home to numerous Holocaust
survivors, Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 44 (1977),
would likewise be considered stalking. And when a national publication satirized
an interview with Minister Jerry Falwell, indicating that his first time having sex was
“a drunken incestuous rendezvous with his mother in an outhouse,” that too would
seem sufficiently distressing to be prohibited by the District’s stalking statute.
Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 50-52 (1988). 12
As the Supreme Court has long recognized, “the First Amendment needs
breathing space.” Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). We are
12
The District claims that our statute “mirror[s] much of the federal stalking
statute,” which is superficially true only if one ignores the federal statute’s malicious
intent requirement. 18 U.S.C. § 2261A. That is no small difference. The “malicious
intent requirement figures prominently in federal courts’ decisions finding that the
federal stalking statute is not overbroad.” In re A.J.B., 929 N.W.2d 840, 855-56
(Minn. 2019) (citing cases and contrasting federal statute with a state statute more
akin to the District’s, which the court held to be substantially overbroad). And even
with this critical element of the federal stalking statute, federal courts still narrowly
construe it in order to avoid First Amendment infirmities. See, e.g., Yung, 37 F.4th
at 77-81; Sryniawski, 48 F.4th at 587-88.
38
particularly vigilant when the law at issue imposes criminal penalties, which create
an especially high risk that an overbroad law “may deter or ‘chill’ constitutionally
protected speech.” Virginia v. Hicks, 539 U.S. 113, 119 (2003). Accordingly, even
a statute with many permissible applications must nonetheless be struck down when
“a substantial number of its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.” Stevens, 559 U.S. at 473 (quoting Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). If its
scope were not somehow limited, the District’s stalking statute would clearly be
substantially overbroad. 13
The District offers several arguments in response, but they are not persuasive.
First, citing to Coleman, it argues that speech must go beyond “mere distress or
13
The D.C. Council itself approved a proposed revision to the stalking statute
that would ameliorate some of the current statute’s overbreadth. See Revised
Criminal Code Act of 2022, D.C. Act 24-789. As drafted, the revised statute would
no longer have covered communications “about another individual,” D.C. Code
22-3132(8)(A), but only repeatedly “[c]ontacting the complainant” when one should
know the contact is “without the complainant’s effective consent.” D.C. Act 24-
789, proposed § 22A-2801(a)(1)(C), (a)(2). The proposed revisions also included
certain “[e]xclusions from liability,” exempting some speech where “the actor is
expressing an opinion on a political or public matter,” unlike the current statute. Id.
§ 22A-2801(b)(1). While those proposed revisions did not take effect because the
Revised Criminal Code did not become law, see H.J. Res. 26, 118th Cong. (2023)
(enacted), they demonstrate just how sweeping the current statute is, and what a
narrower legislative tailoring looks like.
39
annoyance” to constitute stalking under the statute. That is undisputed, but that fact
does not bring the statute into alignment with the First Amendment. Even very
distressing speech is constitutionally protected, as Snyder, R.A.V., Skokie, and
Hustler make vividly clear.
Second, the District faults Mashaud for not demonstrating “from actual fact”
that a substantial number of instances exist in which the law cannot be
constitutionally applied. See N.Y. State Club Ass’n, Inc. v. City of New York, 487
U.S. 1, 14 (1988). That is not a requirement of an overbreadth challenge, and the
case the District cites to suggest otherwise is inapposite. New York State Club was
a case brought by a plaintiff who could not identify a single, non-hypothetical entity
whose free speech would be impacted by the challenged statute. Id. at 13-14. Not
surprisingly, the Supreme Court declined to presume the existence of such an entity
when none was before it. Here, in contrast, Mashaud has identified at least one case
in which the law has been unconstitutionally applied: his own. And we have already
catalogued a swath of everyday speech that the stalking statute would similarly
prohibit if its plain terms are read without narrowing, including truthful disclosures
of serious misconduct or other crimes (where the outed party would reasonably feel
distress as a result).
40
Finally, the District argues that even if there are some potential scenarios
where the stalking statute’s prohibitions apply to constitutionally protected conduct,
the law’s “legitimate reach dwarfs its arguably impermissible applications.” See
New York v. Ferber, 458 U.S. 747, 773 (1982). Again, the authority it relies on for
this proposition is inapposite. Ferber was a challenge to New York’s ban on the
production and distribution of child pornography—material the Supreme Court held
was entitled to no First Amendment protection. Id. at 765. While the court agreed
that New York’s statute could conceivably apply to instances of protected expression
(e.g., “pictorials in the National Geographic”), it voiced serious doubt that these
cases “amount to more than a tiny fraction of the materials within the statute’s
reach.” Id. at 773.
Here, we face the opposite scenario. By its plain language, the District’s
stalking statute criminalizes any “communicat[ions] to or about an individual” that
would reasonably cause emotional distress. A substantial amount of upsetting,
disturbing, and alarming speech is protected by the First Amendment, not a merely
conceivable iota of it. The better analogy is to Stevens, a case involving a federal
statute that prohibited the creation, sale, or possession of a “depiction of animal
cruelty.” 559 U.S. at 464. While Congress’s intent was evidently to prohibit so-
called “crush videos”—videos “depict[ing] women slowly crushing animals to
41
death,” catering to those with “a very specific sexual fetish,” id. at 465-66—the
defendant himself was charged with distributing videos of illegal dog fights, id. at
466. The Supreme Court struck down the statute after determining that its plain
meaning could extend to depictions of conduct as innocuous as hunting (and it did
not require empirical evidence that the statute had been so applied, contrary to the
District’s argument above). Id. at 476-77. Such a sweeping prohibition, the court
held, was “substantially overbroad, and therefore invalid under the First
Amendment,” even if a more narrowly tailored statute could rightly ban crush
videos. Id. at 482.
The same reasoning applies here. We do not doubt that there is a compelling
interest in prohibiting stalking, and that a narrowly tailored statute might prohibit at
least some of the communications at issue here (probably not the email, though). As
written, however, the statute is unconstitutionally overbroad and would need to be
struck down unless some narrowing construction can save it from wholesale
invalidation. Am. Booksellers, 484 U.S. at 397.
B. The Stalking Statute Can Be Saved by Limiting Its Application to
Speech that is Beyond the First Amendment’s Protections.
Because we may strike down a constitutionally overbroad statute only “as a
last resort,” Broadrick, 413 U.S. at 613, we are obliged to determine if the stalking
42
statute is “‘readily susceptible’ to a narrowing construction that would make it
constitutional,” Am. Booksellers, 484 U.S. at 397.
The stalking statute gives us a natural entry point for that inquiry. It provides
that it “does not apply to constitutionally protected activity.” D.C. Code
§ 22-3133(b). Amici argue that we should read the savings clause as a categorical
limitation on the statute’s scope, as Judge Beckwith advocated in her dissent from
the division’s opinion. When it comes to communications to or about another
person, they assert, the clause limits the definition of stalking to just those discrete,
well-defined categories of speech that lack First Amendment protections: threats,
defamation, and the like. The District counters that the savings clause states no more
than a truism, leaving us to scrutinize on a case-by-case basis which of its particular
applications run afoul of the Constitution.
For the reasons that follow, we conclude that the first approach is not only the
superior of the two, but the only one that would save the statute from invalidation.
1. The savings clause limits the statute’s scope so that it applies only to
speech that is beyond the First Amendment’s protections.
Amici argue that we should read the savings clause as exempting entire
categories of constitutionally protected speech from the stalking statute’s reach.
43
Under this reading, when the savings clause says it does not apply to
“constitutionally protected” speech, it exempts all speech except that which fits
within the “narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem.” Stevens, 559
U.S. at 468-69. That would leave threats, obscenity, defamation, fraud, incitement,
and speech integral to criminal conduct within the stalking statute’s reach, 14 id. at
468, while leaving the balance of speech beyond it.
There are substantial advantages to this interpretation of the statute. Most
importantly, it would eliminate the statute’s unconstitutional overbreadth. The
statute would proscribe only that speech that lacks First Amendment protections. It
would likewise avoid any vagueness problems—which the District’s interpretation
suffers from, as discussed below—as a would-be perpetrator would not need to
perform a full constitutional analysis to determine if their conduct falls within the
statute’s scope. See Volokh, supra, at 764 (noting that, if interpreted in this way,
“the statute would be a combination of a criminal libel statute, a threat statute, a
fighting words statute, and the like”).
14
This list is at least arguably not exhaustive. One might add “fighting
words,” “child pornography,” and “speech presenting some grave and imminent
threat” to it. United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion).
44
Giving meaning to the statute’s savings clause would also be consistent with
our normal approach to interpreting statutes. Reading the savings clause in the
District’s preferred way would render it pointless, creating a surplusage problem.
One could write it out of the statute entirely without affecting its meaning, because
it goes without saying that the statute cannot apply to constitutionally protected
activity. See Animal Legal Def. Fund v. Hormel Foods Corp., 258 A.3d 174, 183
(D.C. 2021) (describing the “basic principle of statutory interpretation that each
provision of the statute should be construed so as to give effect to all of its provisions,
not rendering any provision superfluous” (cleaned up)); United States v. Menasche,
348 U.S. 528, 538-39 (1955) (“It is our duty to give effect, if possible, to every clause
and word of a statute rather than to emasculate an entire section, as the Government’s
interpretation requires.” (citation omitted)).
The District argues that our reading of the savings clause is inconsistent with
the Council’s intent, and that this construction “could immunize dangerous behavior
that the Council has a compelling interest in prohibiting.” Assuming the Council
has a compelling interest in prohibiting speech that alarms, frightens, disturbs, or
causes emotional distress, it must do so through legislation that is narrowly tailored
to achieve that interest. Reed, 576 U.S. at 171. To say, as the District does, that the
Council intended to pass a statute that would criminalize all dangerous speech that
45
it might otherwise prohibit through a more narrowly tailored statute is just to say the
Council intended to pass an unconstitutional statute. If that were truly the only
permissible reading of the statute, we would have to invalidate it wholesale. The
District’s concerns are also overstated. It highlights cases involving “harassing but
non-threatening and non-obscene phone calls” that it worries would fall outside the
stalking statute’s reach under our reading, citing to Atkinson v. United States, 121
A.3d 780 (D.C. 2015), and Whylie v. United States, 98 A.3d 156 (D.C. 2014). But
its worries are unfounded, as neither case depended on the sort of content-based
speech restriction that would be excluded from the stalking statute’s scope under the
construction we adopt.
In Atkinson, for example, if we entirely ignore the content of the defendant’s
communications there is still no doubt that he committed stalking. In fact, by and
large, we did ignore the content of his communications in that case. In Atkinson, the
defendant’s course of conduct included “multiple [phone calls] throughout the
evening, often ‘back-to-back,’” and “into the early morning hours,” despite being
told that he “needed to stop calling” and “I don’t want you calling this house
anymore.” 121 A.3d at 782-83. When the complainant unplugged her phone, the
defendant then called each of her parents and he was again told not to call. Id. A
few days later, he showed up at the complainant’s apartment building and “stood
46
outside for a couple of minutes,” until he was directed to leave by security. Id. Then
he returned the following day again, and “security informed him that he was not
permitted in the building.” Id. Several months later, he again placed “nonstop calls”
to the complainant from 1:30 a.m. to 3:00 a.m., and during that time he again showed
up to the complainant’s apartment and tried calling her from the apartment’s call
box. Id. at 783-84. He then tried sneaking into the apartment building to get to the
complainant, but was again thwarted. Id. at 784.
Notice that we have not said one word about the content of the defendant’s
speech in Atkinson, because it was immaterial to his stalking conviction. He could
have been trying to sell his victim a vacuum cleaner and the above actions would
still have amounted to stalking. Our narrowed reading of the statute thus would have
no impact on a course of conduct like that; it is only when a stalking charge depends
on the content of one’s speech that our narrow interpretation of the statute’s
application to speech comes into play. In Atkinson, the words spoken, and messages
conveyed, were entirely beside the point (unlike here).
As for Whylie, not only did the course of conduct involve “more than a
thousand calls” to the victim’s workplace—so that one could ignore the content of
those calls too—many of those calls included explicit and detailed threats against
47
the victim’s safety, which fall outside the First Amendment’s protections. 98 A.3d
at 160 & n.3. Our construction of the savings clause would not affect the statute’s
application to such constitutionally unprotected true threats. Atkinson and Whylie
are the two lead examples the District offers to illustrate its practical concerns with
our interpretation of the statute. Far from justifying the concerns, those cases
demonstrate why they are unfounded.
A further caution comes from Mashaud, who warns that a broad reading of
the savings clause in this case could have implications for District’s law
criminalizing the distribution of non-consensual pornography (often called “revenge
porn”). Specifically, he notes that the revenge porn statute contains an identical
exception for “constitutionally protected activity,” which he suggests would be
impacted by amici’s proposed construction of the savings clause in this case. See
D.C. Code § 22-3055(a)(1). But we see no risk of upsetting that statutory scheme.
As explained, a narrow construction of the stalking statute is necessary only because
the most natural reading of its prohibitions would be overbroad. While we have
never considered the constitutionality of the District’s revenge porn statute, similar
prohibitions enacted by other jurisdictions have been consistently upheld as
narrowly tailored to serve a compelling government interest. See, e.g., Indiana v.
Katz, 179 N.E.3d 431, 456 (Ind. 2022); Minnesota v. Casillas, 952 N.W.2d 629, 643
48
(Minn. 2020); Vermont v. VanBuren, 214 A.3d 791, 814 (Vt. 2019); see generally
Danielle Keats Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake
Forest L. Rev. 345 (2014). Assuming our revenge porn statute is similarly narrowly
tailored to achieve a compelling state interest—and it seems to be at first blush—
there would simply be no need to read the savings clause in a way that would narrow
that statute’s scope.
2. The savings clause does not simply state a truism.
The District counters that the savings clause should be read to state a truism:
that like all legislative enactments, the stalking statute only applies to “conduct or
expression,” which we take to include expressive conduct, “that the Constitution
does not shield after conducting the relevant constitutional analysis.”
If read in this way, then it is technically true (as the District contends) that the
statute would no longer be overbroad; by its literal terms, it would forbid nothing
that the Constitution protects. But that walks right into a different and equally
devastating constitutional problem: it substitutes vagueness for overbreadth, thereby
leaving the statute on no firmer constitutional footing. “The void-for-vagueness
doctrine requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited.”
49
United States v. Smith, 685 A.2d 380, 384 (D.C. 1996) (quoting Kolender v. Lawson,
461 U.S. 352, 357 (1983)). The doctrine serves two important functions. The first
function is that vague laws “undermine the Construction’s separation of powers” by
placing judges, rather than legislators, in the position of deciding when to “make an
act a crime.” United States v. Davis, 139 S. Ct. 2319, 2325 (2019). The second
function is that vague laws “contravene the first essential of due process of law” by
failing to give people “fair notice of what the law demands of them.” Id.; see also
Sessions v. Dimaya, 138 S. Ct. 1204, 1232 (2018) (Gorsuch, J., concurring) (“It
leaves the people to guess about what the law demands—and leaves judges to make
it up.”). The stalking statute’s savings clause, if interpreted as a truism in the manner
proposed by the District, would typify both of these pitfalls.
First, it makes little sense to say (as the District asserts) that the stalking statute
applies to all speech except that which the “Council could not permissibly prohibit
under the Constitution.” Whether speech has been permissibly regulated depends
on how narrowly tailored the regulation is to a compelling interest. The Council
cannot get around the narrow tailoring requirement by simply declaring that it is
prohibiting all distressing speech that, through a narrowly tailored statute, it
otherwise might. It must actually do the tailoring. A statute that simply directs
judges to determine if speech of a particular type could be constitutionally proscribed
lacks the requisite tailoring and is constitutionally infirm on its face. See Stevens,
50
559 U.S. at 482 (“We therefore need not and do not decide whether a statute limited
to crush videos or other depictions of extreme animal cruelty would be
constitutional. We hold only that [this statute] is not so limited but is instead
substantially overbroad.”). The stalking statute is not narrowly tailored to a
compelling state interest if we read the savings clause to state a truism, regardless of
whether a variety of the speech it covers might be proscribed through a more targeted
statute.
The District thus fundamentally misunderstands what strict scrutiny is when
it counters that “[m]ost applications of the stalking law would survive even strict
scrutiny” if the savings clause were interpreted as a mere truism. Strict scrutiny
takes stock of the statute as a whole and asks whether it is narrowly tailored to
achieve a compelling state interest, and a statute will fail that test if a “narrower
regulation would suffice” to satisfy the state’s interest. See Richard H. Fallon, Jr.,
Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1328 (2007). It is a category error
to say a statute would survive strict scrutiny in “most applications”; “‘overinclusive’
statutes also fail strict judicial scrutiny.” Id.Second, a statute with terms requiring “application of the appropriate
constitutional test” would leave the line between innocent and prohibited conduct a
51
matter of guesswork for most of the District’s residents. As one treatise describes
the problem, such a statute would be “patently vague”:
[T]he Constitution does not, in and of itself, provide a
bright enough line to guide primary conduct, and [] a law
whose reach into the protected sphere is limited only by
the background assurance that unconstitutional
applications will eventually be set aside is a law that will
deter too much that is in fact protected.
Laurence H. Tribe, American Constitutional Law 1031 (2d ed. 1988) (emphasis
omitted) (discussing the risk of vagueness in “judicial reconstruction” of
unconstitutionally broad statutes). Even for trained attorneys, a statute requiring ex
ante constitutional analysis to determine its scope fails to give adequate notice of its
requirements. And particularly when that statute imposes criminal liability, the
result of this vagueness is inevitably the impermissible chilling of protected speech.
See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (“[W]here a vague statute
abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit
the exercise of those freedoms.” (cleaned up)).
“The prohibition of vagueness in criminal statutes . . . guards against arbitrary
or discriminatory law enforcement by insisting that a statute provide standards to
govern the actions of police officers, prosecutors, juries, and judges.” Dimaya, 138
S. Ct. at 1212 (plurality opinion). It requires that the legislature “define what
52
conduct is sanctionable and what is not.” Id. “Where the legislature fails to provide
such minimal guidelines, a criminal statute may permit ‘a standardless sweep that
allows policemen, prosecutors, and juries to pursue their personal predilections.’”
Kolender, 461 U.S. at 358. The legislature is not permitted to “set a net large enough
to catch all possible offenders, and leave it to the courts to step inside and say who
could be rightfully detained, and who should be set at large . . . , substitut[ing] the
judicial [and executive] for the legislative department of government.” Id. at 358
n.7 (quoting United States v. Reese, 92 U.S. 214, 221 (1875)). Adopting the
District’s interpretation would mean the Council did exactly that. It would
countenance an overbroad statute with the promise that courts would, on a case-by-
case basis, pare it back as needed to conform to constitutional requirements, leaving
the public to guess as to what the statute actually prohibits and the courts to define
the statute’s true scope.
C.
1. The dissent’s test is unclear, unworkable, and unconstitutional.
Our dissenting colleagues endorse an alternative narrowing construction of
the statute in which they effectively say the stalking statute’s plain terms do not
53
apply to conduct that we adjudge to be sufficiently worthy. 15 That proposed reading
of the stalking statute is atextual and unworkable, and it does not solve the stalking
statute’s constitutional infirmities.
As best we can discern, our colleagues’ test would carve out righteous speech
(or conduct) from the stalking statute’s ambit. They object to that characterization
of their test, but the shoe fits, and their unwillingness to put a point on their test does
not preclude us from doing so. In their own words, the stalking statute does not
prohibit speech that is “justifiable” or is “not otherwise wrongful,” i.e., that is
righteous. Under that reading, justifiable speech simply does not trigger the kind of
distress that counts under the stalking statute no matter how severe that distress
might reasonably be, despite the statute’s plain terms. The stalking statute’s
application thus turns on the relative worth that prosecutors and judges attach to the
speech at issue. There is no textual hook for that interpretation in § 22-3133, which
speaks purely in terms of the course of conduct’s intended or reasonably anticipated
effects on the target, without any concern for the righteousness of the conduct
independent of those effects. Our colleagues instead rely on a vague phrase in
§ 22-3131, a statutory preface setting forth the “legislative intent” behind the
One might read the dissent as merely ratcheting up the statute’s anticipated
15
harm requirement, but it disavows that view, so we set it aside.
54
stalking statute, which does not purport to define the offense of stalking at all, a task
the Council undertook in § 22-3133. They import one particular phrase from that
preface—“severe intrusions on the victim’s personal privacy and autonomy”—into
the statutory elements of stalking set forth in § 22-3133. How they landed on that
particular phrase we do not know, but regardless, theirs is not a plausible reading of
the statute and it does not remedy the statute’s constitutional infirmities. 16
Their approach is strikingly similar to the one the Supreme Court unanimously
rejected in Stevens, 559 U.S. 460. Recall that Stevens involved a statute targeted at
so-called “crush videos,” depicting a particular type of animal cruelty that doubles
as a sexual fetish. Id. at 465-66. But the statute was overbroad, as it would have
banned any “depiction of animal cruelty . . . for commercial gain,” including hunting
16
Our colleagues could just as easily (though equally mistakenly) have seized
on § 22-3131’s pronouncement that stalking is “a serious problem,” or that it has “a
long-lasting impact on the victim’s quality of life,” or that it “creates risks to the
security and safety of the victim,” and added any of those phrases as elements to
§ 22-3133’s plain terms. The only explanation our colleagues give for their choice
of controlling phrase is their assertion that Coleman already adopted the “severe
intrusion” test. It did not. In Coleman—which is not binding on us as we now sit
en banc—we contrasted what amounts to a “severe intrusion” with acts that would
trigger “[o]rdinary ‘uneasiness, nervousness, and unhappiness.’” Coleman, 202
A.3d at 1145. With the former phrase, we were merely illustrating how the
emotional distress requirement is a high bar that must amount to “significant
emotional distress,” id., a point that nobody disputes here. We never purported to
introduce some independent assessment of the rectitude of Coleman’s conduct, as
our colleagues do now.
55
videos or videos depicting such cruelty only to raise funds to combat it. Id. at 464-
65. “Not to worry,” the government argued in Stevens, the statute’s prohibitions
should be read to “reach only ‘extreme’ cruelty” that has no “redeeming social
value.” Id. at 478-80. The Supreme Court unanimously—including the lone Justice
who dissented on different grounds—rejected that narrow reading of the statute
because it had no mooring in the relevant provision’s plain terms. The same is true
here. Our colleagues do not offer any kind of test for what constitutes stalking
beyond whether it is offensive enough to their own sensibilities that they would
deem it as such, the very same argument the Supreme Court shot down in Stevens.
In any event, carving out righteous speech does not come close to curing the
statute’s substantial overbreadth. Again, a bedrock principle of the First
Amendment is that it protects even abhorrent speech. Carving out “justifiable”
speech does not meaningfully temper the statute’s substantial overbreadth because
“[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.” Stevens, 559 U.S. at 470. Speech that most people would describe as
completely unjustified and abject remains protected. So while our colleagues claim
that their reading “avoid[s] some of the constitutional difficulties” with the statute,
in truth it leaves the statute’s constitutional problems unabated.
56
Our colleagues’ approach would also introduce intolerable vagueness into the
statute. It is woefully unclear what counts as “a severe intrusion on . . . personal
privacy and autonomy” under their test. They counter that our interpretation has its
own vagueness because some categories of unprotected speech are not so well-
defined, highlighting “speech integral to criminal conduct.” The Supreme Court
seems to differ. Stevens, 559 U.S. at 468-69 (“speech integral to criminal conduct”
is among the “well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been though to raise any Constitutional
problem” (emphasis added)). The speech integral to criminal conduct exception has
roots that are centuries deep. See Frohwerk v. United States, 249 U.S. 204, 206
(1919) (“[N]either Hamilton nor Madison, nor any other competent person then or
later, ever supposed that to make criminal the counselling of a murder . . . would be
an unconstitutional interference with free speech.”). The “severe intrusions on the
victim’s personal privacy and autonomy” test was coined just today, and our
colleagues shed vanishingly little light on what it means in practice. Indeed, they do
not even attempt to apply their test to the Facebook messages or blogposts at issue
in this case, ignoring the latter based on the mistaken view that Mashaud has waived
any reliance on them, and treating the former as a unitary act that was insufficient to
establish a course of conduct.
57
We have no idea whether those communications satisfy our colleagues’ test,
not because they raise close questions—close questions are inevitable even when
statutes are perfectly clear—but because it is not clear what the relevant question is
under their proposed test. Emotional distress is a statutorily defined term used in
regular parlance and backed by hundreds of years of precedents and scholarship
illuminating the phrase in various legal contexts. But “a severe intrusion on the
victim’s personal privacy and autonomy” has no statutory definition, no regular
usage, and it is not a legal concept in any context. And our colleagues do not exactly
flesh it out. All they tell us is that Mashaud’s email is not sufficiently intrusive to
be covered by the stalking statute, but beyond that, we are left to guess. They would
introduce a judicial gut-check into a criminal statute that regulates speech; whether
somebody has stalked another comes down to a prosecutor’s or judge’s sense of
whether their conduct was “otherwise wrongful.” That extraordinary vagueness is
intolerable in a criminal statute that “abuts upon sensitive areas of basic First
Amendment freedoms.” Grayned, 408 U.S. at 109 (cleaned up).
Finally, as a practical matter, reading a righteousness carve-out (or
intrusiveness element) into the stalking statute would weaken the statute’s
protections even when no speech is at issue. Our statutory reading narrows only the
stalking statute’s application to speech, limiting its proscriptions to those
58
expressions that fall outside the First Amendment’s protections. In contrast, our
colleagues’ approach would narrow the stalking statute’s application to all forms of
conduct that might amount to stalking, such as following or monitoring another.
While our own interpretation is that those acts need only be sufficiently emotionally
distressing to constitute stalking, our colleagues would require that they also involve
“severe intrusion[s] on . . . personal privacy and autonomy” to qualify. While we
have confessed our uncertainty as to what that test means, we have serious doubts
about whether many of the stalking convictions that we have previously upheld
would survive that narrowing of the statute.
Consider Beachum v. United States, where we upheld a stalking conviction in
which the perpetrator had: (1) “regularly appeared on [the complainant’s] block”;
(2) rang her “doorbell and bang[ed] on [her] door for about a minute” on one
occasion; (3) left a note in her mailbox that read “It’s not about being your friend,
it’s about being your best friend. Can you? Hi.”; and (4) once “tried to get [her] to
come over and talk to him as he slid his hand down his pants.” 197 A.3d 508, 509
(D.C. 2018). Under our colleagues’ proposal, the government in that case would
need to prove not only that at least two of these acts would reasonably cause
somebody emotional distress, but further that they each amounted to severe
intrusions on personal privacy and autonomy. Assuming the last act clears that bar,
59
which of the others might? Banging on a door for about a minute could hardly be
called a severe intrusion into another’s personal autonomy. Leaving a note like the
one above could not possibly be. And it is hard to see how simply being on the
complainant’s block routinely would qualify either, given the multitude of reasons
Beachum might have had for being there. Id. at 509 (complainant first saw Beachum
when he was “visiting one of [her] neighbors”). Those acts are no more objectively
upsetting than Mashaud’s own conduct in this case, which our colleagues find
insufficient to trigger liability even if the statute applies to all manner of speech.
Our colleagues say they “very much disagree,” and that Beachum did in fact
severely intrude upon his victim’s privacy and autonomy when he banged on her
door for about a minute and left her a note saying that he wanted to be best friends.
It is tough to argue the point because their preferred test seems to turn entirely on
one’s own sensibilities, and there are no authorities or precedents lending meaning
to their test that might permit us to counter. But we suspect that if you took a poll
and asked people what might be fairly described as a severe intrusion on their
privacy—having a stranger expose their extramarital affair to work supervisors, or
having their door banged on for about a minute—few would land on our colleagues’
side of that divide. Far fewer still would say, as our colleagues do, that the trial court
60
was plainly wrong in its own assessment of the evidence here. Theirs is a surprising
view borne of an unpredictable test.
To put a point on it, our colleagues would weaken the statute’s force for the
sake of avoiding a First Amendment problem that they do not actually ameliorate.
2. The dissent’s critiques of our interpretation are unpersuasive.
Our dissenting colleagues voice a host of qualms with our interpretation of
the stalking statute’s savings clause, though they have offered no interpretation of it
themselves. They do not defend the District’s position, that it states a mere truism,
which is an untenable view for the reasons covered in Part III.B.2. Nor do they offer
any other alternative to our interpretation. And the mismatch between their critique
and their proposed remedy is telling.
If the savings clause were truly not susceptible to our narrowing interpretation
of it, then the proper remedy would be to strike down the statute entirely as it is
unconstitutionally overbroad absent our interpretive gloss. See, e.g., Stevens, 559
U.S. at 482. That is just to say that our colleagues’ critiques of our position are no
points in favor of their own, which is untenable for the reasons we have described.
Their critiques simply cast doubt on whether there can be any effective narrowing
61
of the stalking statute that would save it from wholesale invalidation as overbroad.
In any event, while the dissent offers nine critiques of our position, none raises
serious concerns. 17
First, our colleagues decry an imprecision in what we have called
constitutionally “unprotected speech.” They say the phrase elides a nuance in First
Amendment jurisprudence, that no speech is in fact entirely unprotected. That is
true only in a pedantic sense, but in no way that matters here. Both this court and
the Supreme Court routinely refer to categories of unprotected speech in the exact
manner that we have today. See, e.g., Stevens, 559 U.S. at 470 (“[T]his Court has
often described historically unprotected categories of speech.”); Williams-Yulee v.
Fla. Bar, 575 U.S. 433, 446 (2015) (discussing “factors in determining whether to
recognize ‘new categories of unprotected speech’”); Brown v. Ent. Merchs. Assn.,
564 U.S. 786, 791-92 (2011) (First Amendment’s prohibition on content-based
restrictions is “subject to a few limited exceptions for historically unprotected
speech, such as obscenity, incitement, and fighting words”); Ferber, 458 U.S. at 764(“child pornography. . . like obscenity, is unprotected by the First Amendment”);
Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003)
17
The nine critiques are in Part III A-I of the dissenting opinion.
62
(“fraudulent” speech “is unprotected speech”); In re S.W., 45 A.3d 151, 156 (D.C.
2012) (describing “true threats” as “unprotected under the Constitution”);
Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1240 (D.C. 2016) (asking whether
“the speech in question actually falls within the unprotected category” (quoting Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984))). To analogize,
describing the several categories of historically unprotected speech as such is like
saying the sky is blue—readily understood and perfectly accurate for most purposes,
even if one might interject a technical caveat that the sky only appears to be blue
because of the optical phenomenon known as Rayleigh scattering. 18 The caveat is
not wrong, it is just usually omitted and typically unnecessary.
Second, our colleagues discern a “large disconnect” between our view and the
statutory text because we have not surveyed the field of other constitutional
amendments and what activities might qualify as “constitutionally protected” under
them. We have not suggested that the savings clause exempts only activity that is
18
See Lord Rayleigh (John Strutt), On the Transmission of Light Through an
Atmosphere Containing Small Particles in Suspension, and on the Origin of the Blue
Sky, The London, Edinburgh, & Dublin Phil. Mag. & J. of Sci., Vol. 47, Issue 287,
375 (1899). We are not saying that the nuance our colleagues highlight is not an
important principle, we are simply saying it is a routinely omitted wrinkle in First
Amendment discourse and has no impact on how best to interpret the stalking statute.
To the extent our colleagues simply want us to acknowledge the nuance, then it is so
acknowledged.
63
constitutionally protected by the First Amendment. But the only constitutional right
implicated by this case is the right to free speech, and that is clearly the right that the
stalking statute most obviously and palpably inhibits—few other constitutional
rights can be easily “directed at a specific individual,” a requirement of the stalking
statute. And our colleagues, who under the banner of judicial restraint will not say
anything at all about the savings clause’s meaning, are hardly in a position to critique
us for not explaining how the clause operates when other constitutional rights are
implicated. We suspect that if a homeowner causes a soldier emotional distress by
twice denying them shelter, as is their right under the Third Amendment, that too is
exempted from the stalking statute’s reach. The question is simply not implicated
here.
Third, our colleagues allege a lack of clarity in our opinion. We have
illustrated through multiple examples above (such as our discussions of Atkinson and
Whylie) what it means to say that a stalking charge cannot depend on the content of
one’s speech, unless the speech fits within those historically recognized categories
of unprotected speech. To the extent our colleagues have residual confusions, future
cases can address those. In our view, we have gone to far greater lengths than our
colleagues have in explaining how our test works. And while they counter that “both
opinions decline to decide a number of issues,” ours is the only opinion that decides
64
the question we were asked to grant en banc review to resolve—the proper
interpretation of the savings clause. Their own view in no way obviates the need to
answer that question, it simply puts it off for yet another day.
Fourth, they claim our view introduces excessive complexity into the statute,
because it is sometimes tricky to discern whether speech fits into one of the
historically recognized categories of unprotected speech. But that same complexity
exists in every statute regulating threats, fraud, incitement, and the like, so this
particular complexity is nothing new. And the complexity inheres in our colleagues’
view as well, because even if they are of the view that the savings clause states a
truism (they will not say if they are), they would still have to address as-applied
constitutional challenges to the stalking statute, and tackle questions about the
degree to which speech is constitutionally protected. Those questions can
occasionally be difficult, to be sure, but our colleagues will have to answer them
under their own test. And on top of that complexity, they have layered their opaque
“severe intrusion on personal privacy and autonomy” test. If that test lacks
complexity it is solely because it is entirely unmoored from any precedents or other
authoritative guidance, leaving our colleagues to consult only their own sensibilities.
That permits them to avoid the important questions we granted en banc review to
65
resolve, but for the citizen who has to conform their behavior to their new test, and
to the trial judge who would be left to guess what it means, it is hopelessly vague.
Fifth, our colleagues argue that our interpretation of the stalking statute may
need additional narrowing to avoid an absurdity it posits. Perhaps, but the same is
more obviously true of their preferred interpretation, which does not come close to
resolving the stalking statute’s substantial overbreadth (as discussed in the prior
section). They do not even claim that it does. This critique, like the bulk of theirs,
is more forceful when lodged against their own view.
Sixth, they assert that whether speech is a severe intrusion on the victim’s
personal privacy and autonomy under their test is no more vague than, say, whether
speech is integral to criminal conduct or fits within other categories of unprotected
speech. They are deeply mistaken; there is a huge difference between the occasional
difficult legal question and vagueness. The speech integral to criminal conduct
exception is a “well-defined and narrowly limited” category of unprotected speech,
Stevens, 559 U.S. at 468-69, with a historic pedigree going back hundreds of years,
Frohwerk, 249 U.S. at 206, with many Supreme Court cases expounding upon its
contours, see, e.g., id.; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498
(1949), including one set to be decided this term, see United States v. Hansen, No.
66
22-179 (argued March 27, 2023). While it can sometimes be hard to discern whether
a communication is integral to criminal conduct—or a threat, or defamatory, or
obscene—these are questions we and courts across the country have grappled with
in countless cases for decades, and sometimes centuries, to obviate any vagueness
concerns. See, e.g., Carrell v. United States, 165 A.3d 314, 319-25 (D.C. 2017) (en
banc) (“over the years this court has addressed any vagueness concerns” with the
threats statute); Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (defamation);
Ashcroft v. ACLU, 535 U.S. 564, 574 (2002) (obscenity). By contrast, no principles,
precedents, or authorities underlie whether conduct severely intrudes on another’s
privacy and autonomy; our colleagues have invented that test and will tell us only
that Mashaud’s email does not amount to it, that Beachum’s banging on a door does,
and then leave us guessing about what side of the line the universe of other conduct
falls. That is a textbook vagueness problem that is intolerable when First
Amendment rights are implicated.
Seventh, our colleagues say that our reading will “exempt very disturbing
behavior,” positing a defendant who sends repeat letters proclaiming they are “glad
your child is dead” would not have stalked under our test. They take no position on
whether that conduct would be criminally culpable under their own test (so, yet
again, their concern rings hollow). It is true that the above example will not be
67
stalking as we have interpreted the statute, but that is because the D.C. Council has
not narrowly tailored a statute to proscribe that conduct, not because of our efforts
to rescue this statute from its plain overbreadth. The Council could more narrowly
tailor a statute to, for instance, prohibit direct communications to another that are
intentionally designed to cause, and would reasonably cause, extreme distress after
the recipient has clearly stated their objections to the contacts. Maybe such a statute,
with a carve-out for political speech, would pass constitutional muster. But the
District’s stalking statute is a far cry from that, as it instead prohibits all manner of
acceptable (and often socially desirable) speech that we have described above, while
inviting the courts to sort out which speech really merits criminal culpability on a
case-by-case basis. Our colleagues take them up on that invitation when they should
decline it.
Eighth, our colleagues say we have not abided by the general preference for
constitutional avoidance, but that critique is misplaced. As explained, we have
adhered to that very principle by “interpret[ing] ambiguous statutory language to
avoid serious constitutional doubts.” Iancu v. Brunetti, 139 S. Ct. 2294, 2301
(2019). We do not strike down the statute due to its overbreadth, but have given it
a limiting construction to avoid that end. If our colleagues are faulting us for opining
that the statute would be unconstitutionally overbroad absent some narrowing
68
construction—as opposed to merely expressing concerns that it might be, as they
do—that constitutional issue does not call for avoidance because it is not difficult. 19
Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 787 (2000) (“[S]tatutes
should be construed so as to avoid difficult constitutional questions.” (emphasis
added)). The avoidance canon does not constrain us to expressing concerns that a
spade might be a spade rather than simply calling it one. And our colleagues’ own
route of constitutional avoidance is to adopt an implausible and atextual reading of
the stalking statute, in the exact way the Supreme Court unanimously rejected in
Stevens, 559 U.S. at 481 (“This Court may impose a limiting construction on a statute
only if it is readily susceptible to such a construction.” (cleaned up)).
Ninth, our colleagues justify their dismissal of the blogposts on the basis that
Boone did not adequately challenge the trial court’s decision to do so, so they feel
free to disregard them as well. We have already responded to the point: Boone
clearly relies on the blogposts in his en banc brief as a component part of Mashaud’s
stalking. Our colleagues counter that Boone made no legal attack in his en banc
brief on the trial court’s decision to discount the blogposts, but that is no doubt
19
It is also immaterial to our disposition. The stalking statute’s overbreadth
is plain enough that constitutional avoidance does not prevent us from saying so, but
nothing depends on that, as our analysis would be unaffected if we merely expressed
concerns that the statute is constitutionally overbroad.
69
because nobody defended the trial court’s reasoning (which the division
unanimously rejected).
* * *
In sum, while the District’s stalking statute would be unconstitutionally
overbroad absent some narrowing construction, it is susceptible to just one
narrowing construction that actually cures its First Amendment problems. When the
statute says that it does not apply to “constitutionally protected activity,” that must
be understood to mean that it applies only to communications when they fall within
the narrow categories of speech that lack First Amendment protections.
IV.
The only question remaining is whether Mashaud’s speech fits within a
narrow category of speech that lacks First Amendment protection. That is a pretty
open and shut case: it does not. Mashaud did not defame Boone; it is undisputed
that his statements were true. Armstrong v. Thompson, 80 A.3d 177, 183 (D.C.
2013). He did not threaten him. See In re S.W., 45 A.3d 151, 156 & n.15 (D.C.
2012) (threats require “a serious expression of an intent to cause a present or future
70
harm”). His speech did not incite criminal activity, and it was neither obscene nor
fraudulent.
Boone counters that Mashaud’s speech fits within one recognized exception
to the First Amendment’s protections, because it was integral to a criminal act—
namely, stalking. This argument is fatally circular. While it is true that the First
Amendment does not protect speech integral to criminal conduct, see Giboney, 336
U.S. at 498, “the speech must be integral to conduct that constitutes another offense
that does not involve protected speech,” Sryniawski, 48 F.4th at 588. The exception
is typified by crimes like solicitation or conspiracy, which encourage others to
participate in and thereby advance a non-speech offense. It makes no sense as an
exception if the speech both constitutes the crime itself and thereby avoids First
Amendment protections by being integral to its own commission. By Boone’s
reasoning, the government could prohibit any disfavored speech by first defining it
as a crime and then claiming that the First Amendment no longer applies because
that speech is now integral to that same offense. An exception like that would
swallow the First Amendment whole and bears no resemblance to what this narrowly
drawn exception actually is.
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Because the course of conduct identified by the trial court consisted solely of
“communications to or about another individual,” and those communications did not
fall within one of the categories of speech that lack First Amendment protections,
the court erred by finding that Mashaud committed the crime of stalking.
V.
For the foregoing reasons, the judgment of the Superior Court is reversed, and
the case is remanded with instructions to vacate the CPO and dismiss Boone’s
petition.
So ordered.
MCLEESE, Associate Judge, with whom ALIKHAN, Associate Judge, joins,
dissenting in part and concurring in the judgment: I agree that the civil protection
order (CPO) in this case should be reversed. I also agree that the court should
interpret the stalking statute narrowly in light of serious concerns about the statute’s
apparent breadth. I disagree, however, about what narrowing interpretation to adopt
in order to decide this case. This opinion focuses on the interpretation of the phrases
“[f]eel seriously alarmed, disturbed, or frightened” and “[s]uffer emotional distress.”
72
D.C. Code § 22-3133(a)(1)(B)-(C), (2)(B)-(C), (3)(B)-(C). As I explain, this court
has already adopted a narrow interpretation of those phrases. Under that
interpretation, the evidence in my view is insufficient to support a finding that Dr.
Mashaud committed stalking. I therefore dissent in part and concur in the judgment.
I. The Narrowing Interpretation Adopted in Coleman v. United States
Among other things, the stalking statute prohibits communicating to or about
another individual on two or more occasions, if the alleged stalker (1) intends to
cause that individual to feel seriously alarmed, disturbed, or frightened or to suffer
emotional distress; (2) knows that the individual would reasonably feel seriously
alarmed, disturbed, or frightened, or suffer emotional distress; or (3) should have
known that a reasonable person in the individual’s circumstances would feel
seriously alarmed, disturbed, or frightened or would suffer emotional distress. D.C.
Code § 22-3132(3), (8); id. § 22-3133(a)(1)(B)-(C), (2)(B)-(C), (3)(B)-(C).
“Emotional distress” is defined as “significant mental suffering or distress that may,
but does not necessarily, require medical or other professional treatment or
counseling.” Id. § 22-3132(4).
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In Coleman v. United States, 202 A.3d 1127, 1144-45 (D.C. 2019), this court
interpreted the phrases “[f]eel seriously alarmed, disturbed, or frightened” and
“[s]uffer emotional distress.” D.C. Code § 22-3133(a)(1)(B)-(C), (2)(B)-(C),
(3)(B)-(C). We stated generally that the “stalking statute is meant to prohibit
seriously troubling conduct, not mere unpleasant or mildly worrying encounters that
occur on a regular basis in any community.” Coleman, 202 A.3d at 1144. More
specifically, we cited with approval the statement that “emotional distress” should
be interpreted to be a “feeling of mental anguish, something markedly greater than
the level of uneasiness, nervousness, unhappiness or the like which is commonly
experienced in day to day living.” Id. at 1145 (brackets, emphasis, and internal
quotation marks omitted). We explained that the phrase “serious alarm, disturbance,
and fright should be understood as mental harms comparable to fear for one’s safety
or significant emotional distress.” Id. We concluded that “to trigger criminal
liability” under the stalking statute the conduct at issue must “involve a severe
intrusion on the victim’s personal privacy and autonomy.” Id. (brackets and internal
quotation marks omitted).
Our decision in Coleman rested on general considerations of statutory
interpretation, and we did not address the potential significance of First Amendment
concerns. 202 A.3d at 1144-45. In my view, those concerns confirm the prudence
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of the interpretation we adopted in Coleman. As a matter of ordinary language, the
provisions at issue could be understood to give the stalking statute a troubling reach.
For example, consider a case in which a citizen who justifiably believes that a
government employee should be discharged for misconduct writes two letters to the
employee’s supervisor expressing that view. That conduct could certainly cause the
employee to seriously fear being discharged and to be seriously alarmed and
disturbed at that prospect. The citizen could also be inferred to have known that the
employee would reasonably feel that way.
In my view, however, it would be absurd to think that the legislature intended
to criminalize the writing of such letters. See, e.g., Wade v. United States, 173 A.3d
87, 95 (D.C. 2017) (“When interpreting statutes, we assume that the legislature acted
logically and rationally and we avoid interpretations of statutes which lead to
implausible results.”) (internal quotation marks omitted). We also “have a duty to
avoid constitutional difficulties by applying an appropriate narrowing construction
where possible.” Grogan v. United States, 271 A.3d 196, 210 (D.C. 2022) (internal
quotation marks omitted). Interpreting the stalking statute to reach the writing of
such letters would raise obvious constitutional difficulties. See, e.g., United States
v. Yung, 37 F.4th 70, 78 (3d Cir. 2022) (“The First Amendment protects at least some
speech that persistently annoys someone and makes [that person] fearful or timid.”).
75
Our duty to adopt an appropriate narrowing interpretation is heightened under the
stalking statute, because the legislature directed us to interpret the stalking statute so
that it “does not apply to constitutionally protected activity.” D.C. Code
§ 22-3133(b).
The interpretation of the stalking statute that we adopted in Coleman avoids
at least some of the constitutional difficulties that would be posed by a broader
reading of the statute. For example, the hypothetical citizen who justifiably
complained about a government employee’s misconduct is not subject to liability
under the stalking statute as we interpreted that statute in Coleman. A good-faith
complaint about an employee’s performance simply does not constitute “a severe
intrusion on . . . personal privacy and autonomy.” Coleman, 202 A.3d at 1145
(brackets and internal quotation marks omitted). Moreover, an employee’s concerns
about possible job loss as a result of such a complaint cannot plausibly be viewed as
“anguish . . . markedly greater than the level of uneasiness, nervousness,
unhappiness or the like which is commonly experienced in day to day living.” Id.
(brackets, emphasis, and internal quotation marks omitted).
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II. The Insufficiency of the Evidence
In order to obtain a CPO, Mr. Boone bore the burden of proving by a
preponderance of the evidence that Dr. Mashaud committed stalking. E.g., J.O. v.
O.E., 100 A.3d 478, 481 & n.8 (D.C. 2014). This court reviews the trial court’s
finding on that issue deferentially, “giving full play to the right of the judge, as trier
of fact, to determine credibility, weigh the evidence, and draw reasonable
inferences.” In re K.M., 75 A.3d 224, 230 (D.C. 2013) (internal quotation marks
omitted); see also D.C. Code § 17-305(a) (where trial judge acted as finder of fact,
judgment “may not be set aside except for errors of law unless it appears that the
judgment is plainly wrong or without evidence to support it”).
As I have noted, the stalking statute requires conduct on two or more
occasions. D.C. Code § 22-3132(8). In Coleman, we held that the required mental
state of the defendant must separately be shown as to each of at least two occasions.
202 A.3d at 1139-42. In the present case, the trial court rested its finding of stalking
on two occasions: (1) the sending of an email to Mr. Boone and Mr. Boone’s
employer and (2) the sending of Facebook messages to a number of Mr. Boone’s
family members and friends. I turn first to the sending of the email. Because I
77
conclude that the evidence is insufficient as to that occasion, I do not consider the
sending of the Facebook messages.
Dr. Mashaud’s email accurately revealed that Mr. Boone, who was a company
vice president, had had a sexual relationship with Dr. Mashaud’s wife, who was an
intern at the company. The email raised concerns about possible violations of
sexual-harassment policies and inappropriate use of company resources. The trial
court did not find that the email was false in any respect, and Mr. Boone’s brief to
the en banc court did not contend that the email was false in any respect. The email
is temperate in tone and is not insulting, abusive, or graphic.
Mr. Boone’s testimony about the effect of the email on him was that he felt
“violated” and “embarrassed.” Mr. Boone initially testified that he also felt
threatened by the email, but he later clarified that he did not feel threatened until
after subsequent conduct by Dr. Mashaud.
The trial court found that Dr. Mashaud intended the email to cause Mr. Boone
to feel seriously alarmed, disturbed, or frightened, or to suffer emotional distress.
The trial court also found that Dr. Mashaud knew or should have known that the
email would cause a reasonable person in Mr. Boone’s circumstances to feel
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seriously alarmed, disturbed, or frightened, or to suffer emotional distress. In
reaching those conclusions, the trial court did not have the benefit of our ruling in
Coleman, which was not issued until several years after the trial court’s ruling in this
case. In explaining its ruling, the trial court emphasized that the affair was a personal
matter and that the email raised concerns about possible workplace misconduct by
Mr. Boone.
I conclude that the foregoing evidence does not adequately support a finding
that Dr. Mashaud intended, knew, or should have known that the email would cause
Mr. Boone (or a reasonable person in Mr. Boone’s position) to feel “anguish” arising
from “a severe intrusion on [Mr. Boone’s] personal privacy and autonomy.”
Coleman, 202 A.3d at 1145 (brackets, citation, and internal quotation marks
omitted). Dr. Mashaud may have intended, and certainly should have known, that
the email might cause Mr. Boone to feel concern, embarrassment, and unhappiness.
For the reasons I have explained, however, the stalking statute requires a
substantially higher showing. I conclude that Mr. Boone’s brief testimony that he
felt “violated” and “embarrassed” by the email provides inadequate support for a
finding that the email was a “severe intrusion on personal privacy and autonomy”
that foreseeably would cause Mr. Boone (or a reasonable person) to feel that his
personal safety was threatened or to feel “anguish . . . markedly greater than the level
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of uneasiness, nervousness, unhappiness or the like which is commonly experienced
in day to day living.” Id. (brackets, ellipses, emphasis, and internal quotation marks
omitted).
Because the evidence does not support the requisite findings as to the sending
of the email, the CPO must be reversed.
III. Responses to the Opinion for the Court
The opinion for the court adopts a different approach to the troubling apparent
breadth of the stalking statute. D.C. Code § 22-3133(b) provides that the stalking
statute “does not apply to constitutionally protected activity.” The opinion for the
court interprets that language to mean that the stalking statute does not apply to any
speech that falls outside certain “narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem.” Supra at 4 (quoting United States v. Stevens, 559 U.S. 460, 468-69 (2010)
(internal quotation marks omitted)). The opinion for the court appears to indicate
that its approach applies not only to pure speech but also to expressive conduct.
80
Supra at 37, 48. For ease of reference, I hereinafter use “speech” to refer also to
expressive conduct.
In my view, the approach adopted by the court presents many difficulties and
uncertainties. I ultimately conclude that the stalking statute is not “readily
susceptible” to the narrowing interpretation adopted by the court. Stevens, 559 U.S.
at 481 (“This Court may impose a limiting construction on a statute only if it is
readily susceptible to such a construction.”) (brackets and internal quotation marks
omitted).
A. Categories of “Unprotected” Speech
A basic premise of the court’s approach is that there are “categories of speech
that lack First Amendment protections.” Supra at 42. That premise does not appear
to be sound. It is true that the Supreme Court has often referred to certain categories
of speech as “not within the area of constitutionally protected speech.” R.A.V. v.
City of St. Paul, 505 U.S. 377, 383 (1992) (internal quotation marks omitted). The
Court has also explained, however, that such language is a “shorthand” that is not
“literally true” and “must be taken in context.” Id. In R.A.V., for example, the Court
considered an ordinance criminalizing “fighting words” that insulted or provoked
81
violence on the basis of race, color, creed, religion, or gender. Id. at 391. The Court
acknowledged that it had previously referred to “fighting words” as outside the scope
of the First Amendment. Id. at 383-84. Nevertheless, the Court held that the
ordinance was facially invalid under the First Amendment, because the ordinance
impermissibly discriminated among fighting words based on the content of the
fighting words and the viewpoint of the speaker. Id. at 391-96.
Speaking more broadly, the Court explained that the First Amendment does
apply to categories of speech sometimes referred to as unprotected:
Our cases surely do not establish the proposition that the
First Amendment imposes no obstacle whatsoever to
regulation of particular instances of such proscribable
expression, so that the government may regulate them
freely. That would mean that a city council could enact an
ordinance prohibiting only those legally obscene works
that contain criticism of the city government or, indeed,
that do not include endorsement of the city government.
Such a simplistic, all-or-nothing-at-all approach to First
Amendment protection is at odds with common sense and
with our jurisprudence as well.
R.A.V., 505 U.S. at 384 (brackets, citation, and internal quotation marks omitted).
82
In my view, it is quite undesirable to tie the interpretation of § 22-3133(b) to
language that the Supreme Court has acknowledged is not accurate. For example,
consider “true threats.” The opinion for the court clearly intends that the stalking
statute be understood to apply to them. Supra at 47. But the test that the court adopts
would, by its own terms, seemingly exclude true threats from the stalking statute.
“True threats” are not entirely unprotected by the First Amendment, and the
punishment of “true threats” can “raise [a] Constitutional problem.” Stevens, 559
U.S. at 468-69 (internal quotation marks omitted); see, e.g., R.A.V., 505 U.S. at 388
(“[T]he Federal Government may not criminalize only those threats against the
President that mention [the President’s] policy on aid to inner cities.”); State v.
Vawter, 642 A.2d 349, 359 (N.J. 1994) (even if construed as limited to threats of
violence, statute violated First Amendment because statute proscribed only threats
“on the basis of race, color, creed or religion” and therefore impermissibly
discriminated on basis of viewpoint).
The opinion for the court dismisses this problem as a “pedantic” “nuance.”
Supra at 61. As the Supreme Court’s decision in R.A.V. illustrates, however, the
idea that no speech is wholly unprotected by the First Amendment is a quite
important substantive principle of First Amendment law.
83
The opinion for the court also appears to imply that the D.C. Council, in
enacting § 22-3133(b), probably relied on loose language in prior decisions of the
Supreme Court and this court describing certain categories of speech as unprotected.
Supra at 61-62. That is a somewhat puzzling implication, given the court’s apparent
acknowledgment that its reading of § 22-3133(b) “is inconsistent with the Council’s
intent.” Supra at 44. In other words, the opinion for the court does not actually
contend (and in my view could not plausibly contend) that the D.C. Council intended
the words “does not apply to constitutionally protected activity” to mean “is wholly
inapplicable to all speech except a few categories of speech (loosely) referred to as
‘unprotected’ by the First Amendment.” Moreover, as I will now try to explain, the
interpretation of § 22-3133(b) adopted by the opinion for the court in my view
cannot reasonably be reconciled with § 22-3133(b)’s text.
B. Statutory Text
The opinion for the court attempts to address the problem just noted by in
effect interpreting § 22-3133(b) to carve out all speech except for “categories of
speech the Supreme Court has sometimes loosely referred to as unprotected.” Supra
at 62. In my view, that response worsens another serious problem I see with the
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court’s approach: the large disconnect between the court’s interpretation of
§ 22-3133(b) and the actual wording of that provision.
Section 22-3133(b) refers to the Constitution generally, not the First
Amendment, and to “protected activity,” not “protected speech.” In my view, the
court’s opinion does not adequately come to grips with those features of
§ 22-3133(b). I take as a given that § 22-3133(b) must be read, consistent with its
plain language, to implicate not only the First Amendment but also the Constitution
generally, and to apply not only to speech but also more broadly to “activity” other
than speech. I also take as a given that the words “constitutionally protected” must
be given one consistent meaning under § 22-3133(b), rather than one meaning in the
context of the First Amendment and a different meaning in the context of other
constitutional protections, or one meaning when applied to “activity” other than
speech and a different meaning when applied to the form of activity that is speech.
See, e.g., Clark v. Martinez, 543 U.S. 371, 378 (2005) (when interpreting single
statutory phrase that modified three listed categories, Court explains that to give
phrase “a different meaning for each category would be to invent a statute rather
than interpret one”); Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 330 (2000) (“As
we have in the past, we refuse to adopt a construction that would attribute different
85
meanings to the same phrase in the same sentence, depending on which object it is
modifying.”).
The opinion for the court does not shed light on how its interpretation of the
words “constitutionally protected” for purposes of speech considered under the First
Amendment can plausibly function when applied to constitutional protections other
than the First Amendment and to activity other than speech. If the terms of
§ 22-3133(b) are given a consistent meaning, then under the court’s approach the
stalking statute would apply only to those non-speech activities that “fall within the
narrow categories of [activity] that lack [constitutional] protection.” Supra at 69.
That would be absurd, and I assume that the court does not intend for § 22-3133(b)
to be read in that fashion. I note, however, that at oral argument one of the amici
apparently took the position that § 22-3133(b) should be interpreted to preclude a
finding of stalking based even in part on the fact that the defendant was standing
outside the complaining witness’s home displaying a firearm that the defendant
lawfully possessed.
A more plausible textual reading of “constitutionally protected activity” is
available, of course: the phrase could be read to mean “activity that it would be
unconstitutional to consider as the basis of a stalking conviction.” The court does
86
not accept that reading in the context of speech and the First Amendment, however,
so that reading of the phrase is unavailable to the court for purposes of construing
§ 22-3133(b)’s actual language in the context of other forms of conduct and other
constitutional provisions. In my view, this problem by itself demonstrates that the
court’s interpretation of § 22-3133(b) is untenable.
The foregoing problems get worse when one adds the complication that the
categories of speech identified by the court are not actually unprotected under the
First Amendment. Thus, the court presumably must interpret “constitutionally
protected activity” to mean something like “(a) speech that falls outside the
categories of speech that the Supreme Court has sometimes loosely referred to as
unprotected by the First Amendment and (b) other activities that it would violate the
Constitution to consider as the basis of a stalking conviction.” I do not view that as
a plausible reading of the actual words of § 22-3133(b).
The opinion for the court suggests that these issues can properly be left for
another day. Supra at 62-63. I disagree. As the court acknowledges, supra at 68, a
narrowing construction to avoid constitutional issues is not permissible if the
statute’s text is not “susceptible to the narrowing construction.” Grogan v. United
States, 271 A.3d 196, 210 (D.C. 2022) (internal quotation marks omitted). I
87
conclude that the court errs by adopting an interpretation of “constitutionally
protected activity” solely for purposes of speech and the First Amendment that
cannot plausibly be squared with any general understanding of those terms in
§ 22-3133(b).
C. Clarity
The court’s opinion is unclear about the nature of the limitation it would
impose. Although this is not entirely clear (and the court’s opinion is not explicit on
the point), I assume that the court does not intend to suggest that evidence of
“protected” speech is entirely out of bounds in a stalking case. For example, I
assume that, even under the approach adopted by court, evidence that the defendant
in a stalking case told the complaining witness that the defendant was hoping to
make the complaining witness “suffer” would be admissible to prove the defendant’s
mental state. Other questions remain, though. The court’s opinion sometimes seems
to indicate that “protected” speech cannot be one of the actions that form the course
of conduct constituting a stalking offense. Supra at 43 (speech that is not
unprotected is not part of definition of “stalking”). At other times, however, the
court’s opinion seems to indicate that “protected” speech can be part of the course
of conduct constituting a stalking offense as long as the offense does not “depend[]
88
on” on the content of the speech. Supra at 46. Also, it is unclear what the last
formulation means. Does a stalking offense depend on the content of speech only if
the content of speech is necessary to the jury’s finding of guilt? In other words, may
a jury in a stalking case consider the content of speech with no limit other than that
the course of conduct found by the jury must include at least two acts that are not
“protected” speech considered for its content?
D. Complexity
The court’s opinion in my view substantially underestimates the complexity
of the offense that would be created by the narrowing interpretation the court adopts.
The precise details might depend on how the uncertainties noted in the preceding
paragraph were resolved. In any event, a stalking case that involved evidence of
speech might present considerable complexity.
1. Identifying “Unprotected” Speech
First, if the prosecution relied on speech as part of the alleged course of
conduct, the factfinder would have to determine whether the speech was
“unprotected.” See Hasty v. United States, 669 A.2d 127, 133 (D.C. 1995) (“Where
89
a narrowing construction or interpretation has been placed upon a statute that, absent
the narrowing construction, might otherwise be unconstitutional in some respect,
that narrowing construction or interpretation, upon request and where supported by
the evidence, must be the subject of proof at trial and should be submitted to the trier
of fact for its determination.”). Assuming that “unprotected” is understood to refer
to categories of speech that the Supreme Court has sometimes loosely referred to as
unprotected, juries in such cases might have to determine whether given speech was
a true threat, was obscene, was defamatory, was fraudulent, constituted incitement,
was integral to criminal conduct, constituted fighting words, was child pornography,
or presented some grave and imminent threat. Supra at 43 & n.14 (acknowledging
that under its interpretation, stalking statute “would be a combination of a criminal
libel statute, a threat statute, a fighting words statute, and the like”) (internal
quotation marks omitted).
Some of those categories have relatively well-settled contours, but others
decidedly do not. One of the amici, Professor Eugene Volokh, has written a lengthy
law-review article on the exception for speech that is integral to criminal conduct.
The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981(2016). In that article, Professor Volokh describes the exception as “long-dormant”
and “little-defined,” rooted in a Supreme Court decision that is “broadly and
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imprecisely written” and “has often been misinterpreted.” Id. at 983, 1052. The
opinion for the court decides one relatively straightforward issue about the
exception: the exception cannot properly be interpreted to be entirely circular, and a
legislature therefore could not define speech as a crime and then avoid First
Amendment scrutiny on the theory that the speech is integral to that crime. Supra
at 70.
Other questions remain. Professor Volokh expresses the view that the
exception also applies to speech integral to conduct that is merely “tortious” or
“civilly actionable.” 101 Cornell L. Rev. at 983 & n.1, 1012. The opinion for the
court, however, refers only to criminal conduct. E.g., supra at 4, 70. On the former
view, the exception might well be quite substantial in scope. Moreover, relying on
a single decision from a federal appellate court, the opinion for the court concludes
that the exception applies only if the speech at issue is integral to “another offense
that does not involve protected speech.” Supra at 70 (internal quotation marks
omitted). I am not entirely certain what that means and whether the First
Amendment imposes such a limitation. For example, consider a case in which the
defendant is charged with stalking for repeatedly knocking on the complainant’s
door, despite having been asked to stop. I think it quite unclear whether the First
Amendment would prevent consideration of evidence that the defendant was yelling
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racial epithets or sexually explicit insults at the same time, to prove: (a) the
defendant’s mental state; (b) circumstances that tended to support the victim’s claim
of subjective fear and/or the objective reasonableness of the victim’s fear; or (c)
further evidence of the course of conduct constituting stalking, at least as long as the
jury did not rest entirely on the content of “protected” speech in finding the elements
of stalking. That is true, in my view, even if the defendant’s conduct did not itself
constitute a true threat or fit within some other category of speech that the Supreme
Court has sometimes loosely referred to as “unprotected.” More generally, I do not
envy the task of trial judges and juries in grappling with such questions and other
comparable questions that will arise in applying other exceptions acknowledged by
the opinion for the court, such as the exception for speech that poses a “grave and
imminent threat.” Supra at 43 n.14 (internal quotation marks omitted).
2. Identifying “Protected” Speech that May Still Constitute Stalking
Juries might also need to be instructed that even “protected” speech can be
considered as part of the course of conduct constituting a stalking offense, as long
as the offense does not depend on the content of the speech. Supra at 46. Whether
speech is being considered for its content is a question that courts and academics
have found quite challenging. See, e.g., City of Austin v. Reagan Nat’l Advert. of
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Austin, LLC, 142 S. Ct. 1464, 1471-75 (2022) (five Justices holding that regulation
was not content based); id. at 1479-81 (Alito, J., concurring in part and dissenting in
part) (suggesting that regulation was content based); id. at 1481-92 (Thomas,
Gorsuch, & Barrett, JJ., dissenting) (concluding that regulation was content based);
see generally, e.g., Leslie Kendrick, Content Discrimination Revisited, 98 Va. L.
Rev. 231, 232-33, 233 n.3 (2012) (citing articles reflecting belief “that, whatever the
merits of a content-discrimination principle as a conceptual matter, the Supreme
Court’s application of it has been unprincipled, unpredictable, and deeply
incoherent”). The opinion for the court apparently might require, in cases presenting
the issue, that trial judges attempt to craft an instruction defining the concept of
content-based discrimination for juries and that juries then attempt to apply that
concept. Those seem no easy tasks. For example, can the jury consider that the
defendant was yelling angry words, or does that depend on whether the words were
angry in tone, only angry in content, or both?
In my view, such complexities weigh significantly against the narrowing
interpretation the court adopts.
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E. Incompleteness
One of the most obvious problems with the stalking statute is that, read
broadly, the statute could be interpreted to reach entirely innocent conduct. The
narrowing interpretation adopted by the court does not directly address that problem.
For example, consider a case in which an employer justifiably suspends an employee
without pay and then later discharges the employee. When the terms of the stalking
statute are interpreted broadly and out of context, one could reasonably say that the
employer “engaged in a course of conduct directed at” the employee that the
employer “should have known would cause a reasonable person in the [employee’s]
situation to . . . [s]uffer emotional distress.” D.C. Code § 22-3133(a)(3)(C). I think
that it would be absurd to interpret the stalking statute to criminalize the employer’s
conduct in those circumstances. I assume that the court would not take the view that
suspending an employee without pay and then discharging the employee is a form
of “protected” speech being considered for its content. It follows that the court
leaves unremedied a distinct and serious problem with the stalking statute. Thus,
the court seems to guarantee that an additional narrowing interpretation of the
stalking statute will be necessary.
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It is true, as the court notes (supra at 55), that the narrowing interpretation I
prefer will not necessarily solve all issues presented by the stalking statute. My point
is that the opinion for the court certainly will not.
F. Vagueness
The court states that its approach “avoid[s] any vagueness problems . . .
[because] a would-be perpetrator would not need to perform a full constitutional
analysis to determine if . . . conduct falls within the [stalking] statute’s scope.”
Supra at 43. As discussed, I think it doubtful that the approach reflected in the
court’s opinion would simplify the resolution of stalking cases or give clear guidance
to trial judges and primary actors as to the permissible scope of the stalking statute.
Rather, the court’s opinion would in some cases require “would-be perpetrators”
(and juries) to decide whether speech was a true threat, was obscene, was
defamatory, was fraudulent, constituted incitement, was integral to criminal (or
perhaps tortious or civilly actionable) conduct, constituted fighting words, was child
pornography, or presented some grave and imminent threat. Supra at 43 & n.14.
The court indicates that a statute is unconstitutionally vague if the statute “requir[es]
ex ante constitutional analysis to determine its scope.” Supra at 51. That, however,
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seems to be exactly what the stalking statute would require as interpreted by the
court in this case.
G. Magnitude of the Limitation
It is difficult to determine the extent to which the approach reflected in the
court’s opinion would diminish the reach of the stalking statute, because it is not
clear what exact limitation the court contemplates. In any event, however, the
court’s opinion does seem to exempt very disturbing behavior. Consider a case in
which the complaining witness’s young child has recently died, and the defendant
each day for an extended period sends a letter to the complaining witness saying, “I
am glad your child is dead. I hope you suffer every day for the rest of your life.”
Under the court’s opinion, the stalking statute would seemingly not apply to that
course of conduct. Moreover, the court excludes that conduct from the stalking
statute without explicitly determining whether that conduct is “constitutionally
protected activity” in the normal sense of that phrase, i.e., whether the First
Amendment would preclude imposition of a criminal sanction for that conduct.
To be clear, I express no firm view as to whether the First Amendment would
permit or preclude imposition of criminal liability based on such conduct. Although
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my leaning is that criminal liability could lawfully be imposed based on such
conduct, that seems to me to be an unsettled question of First Amendment law that
the court need not answer in this case. My point is that the court’s opinion excludes
such conduct from the stalking statute without even deciding whether the First
Amendment requires that result.
H. The Doctrine of Constitutional Avoidance
This court has said that it “ordinarily will not address constitutional issues
. . . when the case may be resolved on other grounds. The practice of avoiding
constitutional issues if it is reasonably possible to do so is predicated on a
fundamental rule of judicial restraint, which is perhaps more deeply rooted than any
other doctrine of constitutional adjudication.” Gaynor v. United States, 16 A.3d 944,
948 (D.C. 2001) (citation and internal quotation marks omitted). The opinion for
the court resolves numerous constitutional issues, including that the stalking statute
would be substantially overbroad unless given a narrowing construction, supra at
32-41; that the First Amendment would be unconstitutionally vague if used as the
basis for a criminal prohibition, supra at 49-52; and that the exception for speech
that is integral to a criminal act does not apply unless the criminal act “constitutes
another offense that does not involve protected speech,” supra at 70 (internal
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quotation marks omitted). In contrast, I conclude that this case can be resolved
without the need to decide such constitutional issues. The availability of a non-
constitutional basis for resolving this case weighs heavily against the narrowing
interpretation adopted by the court.
I. Blogposts
The court concludes that, in assessing the sufficiency of the evidence, the
court is required to consider the later blogposts Dr. Mashaud sent, even though the
trial court held on remand that the blogposts could not constitutionally be
considered. Supra at 17-18. Mr. Boone, however, has not challenged the trial
court’s ruling on that issue in his briefing before the en banc court. I see no reason
to consider that unchallenged ruling. See generally, e.g., Grimes v. D.C., Bus.
Decisions Info. Inc., 89 A.3d 107, 112 n.2 (D.C. 2014) (declining to address issue
that was not briefed on appeal).
The court contends that Mr. Boone did adequately raise this issue, citing two
passing references to the blogposts in Mr. Boone’s en banc brief. Supra at 17-18.
In my view, those passing references, unaccompanied by any legal analysis, do not
suffice to adequately present a challenge to the trial court’s constitutional ruling.
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See, e.g., Roth v. D.C. Bd. of Zoning Adjustment, 279 A.3d 840, 845 (D.C. 2022)
(declining to consider issue mentioned in passing, because petitioner did not provide
legal argument in support of passing suggestion). In sum, I agree with the District
of Columbia and Dr. Mashaud that Mr. Boone did not adequately present a challenge
to the trial court’s constitutional ruling excluding consideration of the blogposts.
J. The Court’s Critique of the Dissent
The court identifies a number of perceived problems with the narrowing
interpretation I prefer. I do not see any easy solution to the troubling apparent
breadth of the stalking statute, and I agree that the interpretation I favor presents its
own challenges. On balance, however, I am not persuaded that the approach adopted
by the court is preferable. In any event, for reasons I have already explained, I do
not believe that the approach adopted by the court is permissible. Rather, in my
view, the stalking statute is not susceptible to the interpretation that the court adopts.
First, the court expresses uncertainty about the narrowing interpretation I
prefer. Supra at 52-54. To be clear, I do not propose to “ratchet[]” up the degree of
anticipated harm beyond the level already reflected in our prior decisions. Supra at
53 n.15. I do note, however, that our prior decisions, including Coleman, have
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emphasized that the level of anticipated harm under the stalking statute must be
“severe.” 202 A.3d at 1145. Rather, I conclude that—independent of First
Amendment concerns, but also supported by such concerns—the stalking statute
should not be interpreted to reach courses of conduct that are not otherwise wrongful
but that foreseeably might cause severe alarm or emotional distress. As I have
explained, absent such an interpretation, the stalking statute would have an absurd
reach, criminalizing much innocent conduct.
Second, the court describes the narrowing interpretation I prefer as “carv[ing]
out righteous speech.” Supra at 53. I disagree with that characterization. Under the
interpretation adopted by this court in Coleman, the stalking statute requires that the
conduct at issue (including speech) constitute “a severe intrusion on the victim’s
personal privacy and autonomy.” Coleman, 202 A.3d at 1145. The conclusion that
evidence in this case is insufficient is based on the application of that standard, not
based on whether Dr. Mashaud’s conduct could in some sense be viewed as
“righteous.”
Third, the court points out that there is no obvious “textual hook” in § 22-3133
itself for the narrowing interpretation I prefer. Supra at 53. There is, however, such
a textual hook in D.C. Code § 22-3131, which expresses the D.C. Council’s intent
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in making stalking a crime. That provision states that “[s]talking involves severe
intrusions on the victim’s personal privacy and autonomy.” I view that description
of the offense as a natural place to look when adopting a narrowing interpretation of
the offense to avoid absurdity. In fact, our decision in Coleman expressly relied on
the D.C. Council’s statement of intent in concluding that stalking must involve “a
severe intrusion on . . . personal privacy and autonomy.” 202 A.3d at 1145 (brackets
and internal quotation marks omitted). I note, moreover, that the court does not
dispute that it would be absurd to interpret the stalking statute to reach entirely
innocent conduct, does not propose an alternative solution to address the problem,
and does not identify a “textual hook” for such a solution.
In any event, the narrowing interpretation I favor rests on the need to avoid
absurdity. In that setting, it is well settled that “basic principles of statutory
construction require that the actual language of a statute be ignored or revised to
avoid the absurdity that would result if it were read literally.” Young v. U-Haul Co.,
11 A.3d 247, 250-51 (D.C. 2011) (brackets and internal quotation marks omitted).
Relatedly, I do not agree with the court’s suggestion that adopting the
narrowing interpretation I prefer would in any way be inconsistent with the Supreme
Court’s decision in Stevens, 559 U.S. 460. Supra at 54-55. Stevens involved a
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proposed narrowing interpretation to avoid First Amendment problems, not a
narrowing interpretation necessary to avoid absurdity. Stevens, 559 U.S. at 460.
Fourth, the court correctly points out that the words “severe intrusion on
. . . personal privacy and autonomy” are not entirely clear. Supra at 56. The same
is true, however, of terms that the court would require juries to decide but the court
does not attempt to define, such as “integral to criminal (and perhaps tortious or
civilly actionable) conduct,” and “grave and imminent threat.” To the extent that
the court contends that the phrase “severe intrusion on . . . personal privacy and
autonomy” is “intolerabl[y] vague[]” and “woefully unclear,” supra, I disagree. The
court fails to persuasively explain why those terms are unacceptably murkier than
terms such as “integral to criminal (or tortious or civilly actionable) conduct” or
many other terms in criminal law, such as “reasonable” or “adequate provocation,”
see generally, e.g., Parker v. United States, 155 A.3d 835, 845 (D.C. 2022) (amount
of force used in self-defense must be reasonable); Carome v. Carome, 262 A.3d 242,
247 (D.C. 2021) (destruction of property is not malicious if defendant acted based
on “adequate provocation of the kind that would cause an ordinary, reasonable
person to lose . . . self-control”) (internal quotation marks omitted).
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Fifth, and relatedly, the court seems to suggest that the words “severe intrusion
on . . . personal privacy and autonomy” are a complete novelty insusceptible of
reasonable understanding. Supra at 57. To the contrary, however, there are
preexisting torts that involve the concepts of invasion of privacy and intentional
infliction of emotional distress. See, e.g., Doe v. Bernabei & Wachtel, PLLC, 116
A.3d 1262, 1266 (D.C. 2015) (invasion of privacy); Newmyer v. Sidwell Friends
Sch., 128 A.3d 1023, 1037 (D.C. 2015) (intentional infliction of emotional distress).
I do not mean to suggest that the elements of those torts should be imported into the
stalking statute wholesale, but their existence indicates that these concepts are not
contentless or inadministrable.
Sixth, the court states that the narrowing interpretation I prefer would not
solve or even ameliorate the substantial overbreadth of the stalking statute. Supra at
55, 60. It seems clear that the narrowing interpretation that I prefer would at least
ameliorate overbreadth concerns, because that interpretation would preclude
stalking convictions in many of the hypothetical scenarios discussed by the court,
such as when a doctor conveys bad news to a patient. Supra at 3. I express no view
as to whether the narrowing interpretation I prefer would completely solve
overbreadth concerns, because I see no need to decide any constitutional issue in
order to resolve this case. I do note, however, that the First Amendment analysis
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seems to me to be more complicated than is reflected in the court’s opinion. For
example, it appears to be unsettled to what extent the First Amendment prohibits the
imposition of civil or criminal liability based on malicious speech on matters of
private concern. See Snyder v. Phelps, 562 U.S. 443, 452-55 (2011) (acknowledging
that “First Amendment protections are often less rigorous” “where matters of purely
private significance area at issue”). Similarly, the Supreme Court has held that the
First Amendment can in some circumstances permit the criminalization of cross-
burning with bad intent. Virginia v. Black, 538 U.S. 343, 348, 352-363 (2003)
(upholding Virginia statute making it crime to burn cross with intent to intimidate).
As previously noted, the novelty and difficulty of such questions counsel against
unnecessarily reaching First Amendment issues in this case.
Seventh, the court states that the narrowing interpretation I prefer would
“weaken the statute’s protections even when no speech is at issue.” Supra at 57. I
disagree. As I have explained (and as the court’s opinion does not dispute), some
sort of narrowing interpretation is necessary to avoid giving the stalking statute
absurd application to innocent conduct. I do not view the avoidance of absurdity as
“weaken[ing] the statute’s protections.” Moreover, the narrowing interpretation
favored by the court would also, by definition, narrow the scope of the stalking
statute from the scope the statute otherwise would apparently have had. For
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example, as previously noted, the narrowing interpretation preferred by the court
would interpret the stalking statute as inapplicable to malicious speech on matters of
private concern, even though the court does not hold that the First Amendment
precludes imposition of criminal liability based on such speech.
The sole specific example of “weaken[ing]” the opinion for the court provides
is Beachum v. United States, 197 A.3d 508 (D.C. 2018). Supra at 58-59. I do not
view that example as well-chosen. The facts in Beachum were as follows:
(1) beginning in the spring or summer of 2016, Mr. Beachum regularly tried to
engage the complaining witness in conversation; (2) although the complaining
witness rebuffed him each time, he persisted, making her feel uncomfortable; (3) in
July 2016, Mr. Beachum tried to get the complaining witness to come over and talk
to him while he slid his hand down his pants; (4) in the following months, Mr.
Beachum continued to try to talk to the complaining witness, at one point offering
her $50; (5) in January 2017, Mr. Beachum approached the complaining witness as
she was entering her home and said he wanted to speak with her; (6) the complaining
witness tried to ignore him, but he persisted, being “extremely more aggressive” than
in previous encounters, causing the complaining witness to go into her home and
call the police; (7) Mr. Beachum went to his van, wrote something on a piece of
paper, returned to the complaining witness’s house, and started ringing the doorbell
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and banging on the door for about a minute; (8) when the police arrived, the
complaining witness found a note in her mailbox asking the complaining witness to
be Mr. Beachum’s best friend; and (9) the note and Mr. Beachum’s escalating
conduct made the complaining witness afraid. Beachum, 197 A.3d at 509. In my
view, a reasonable factfinder could have found Mr. Beachum guilty of stalking on
those facts under the narrowing interpretation I prefer. A reasonable factfinder could
conclude that Mr. Beachum’s conduct, on two separate occasions, was a severe
intrusion on the complaining witness’s personal privacy and autonomy and that Mr.
Beachum intended, knew, or should have known that his conduct on each occasion
would have put a reasonable person in the complaining witness’s circumstances to
fear for her personal safety. Specifically, when considered in light of the conduct
that had preceded them, the incident described in (3) above and the incident
described in (5)-(9) would each in my view reasonably support such findings.
Although the court expresses the view that Mr. Beachum’s conduct was “no more
objectively upsetting than [Dr.] Mashaud’s,” supra at 59, I very much disagree. That
is particularly true given that, for reasons I have explained, I focus in this case solely
on Dr. Mashaud’s initial email.
Finally, the court repeatedly criticizes this opinion for not reaching out to
decide other issues not necessary in my view to decide this case, while at the same
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time itself declining to resolve numerous issues that the court views as unnecessary
to resolve. E.g., supra at 60, 63, 65. It is certainly true that both opinions decline to
decide a number of issues. My point is not that all issues that can be raised must be
decided. Rather, my point is that an accurate comparison of the two approaches
requires a full understanding of the complexities and issues that each approach
would create. My further point is that one of the issues left unresolved by the court—
whether the phrase “constitutionally protected activity,” understood as a whole and
in the context of § 22-3133(b), is reasonably susceptible to the interpretation favored
by the court—must properly be decided now.
For the foregoing reasons, I respectfully dissent in part and concur only in the
judgment.