I currently represent a client (let’s call him “Client”) in an interesting First Amendment case pending before the District of Columbia Court of Appeals.

Another person (let’s call him “Petitioner”) had a brief sexual affair with my client’s spouse.  My client learned about this affair and sent emails to a small number of persons indicating that Petitioner (who he named) had had such an affair.  He also posted several internet blog posts in which he described his feelings, his views on what an affair can do to a marriage and how best to recover from an affair and provided links to blogs in which others had discussed how they dealt with a spouse having an affair.  Client specifically described his own situation and, in doing so, referred to Petitioner by name.  Everything Client said was true and nothing he saidcould reasonably be interpreted as a threat.

Petitioner was upset that his participation in this affair was disclosed.  He testified at the trial in Superior Court that he was especially concerned that if a person Googled his name that Client’s blog posts would appear in the search results.  This, he said, was bad for his business.  Petitioner could not reasonably hope to prevail on a civil libel claim against Client, in part because truth is an absolute defense to libel and Client’s statements were true.  So Petitioner went to the Domestic Violence Unit of D.C. Superior Court seeking a restraining order against Client on the grounds that Client had violated D.C.’s anti-stalking law.  Petitioner also sought damages,including several thousand dollars he had paid to a “brand repair specialist” to repair his image on the internet.  The Superior Court judge agreed that Client had committed a criminal offense by his public disclosures of the truthful fact that Petitioner had had an affair with a married woman.  The implication of the decision is that anyone in the District of Columbia who tells anyone else that a third person has been involved in a relationship with another person’s spouse commits a crime, at least if they make such a statement more than once, allowing it to be described as a course of conduct.  It is hard to see how such a view is consistent with the guarantee of freedom of speech in the First Amendment to the U.S. Constitution.

D.C.’s anti-stalking law, D.C. Code § 22-3133, has the laudable intent of protecting individuals, especially women, from stalking by persons connected to them by a romantic relationship.  The statute very appropriately prohibits a course of conduct meant to cause a third person to “[f]ear for his or her safety or the safety of another person.”  But a separate prong of the statute, on which the Superior Court in this case relied, provides that it is illegal for someone to engage in a course of conduct directed to another person that the person engaging in the conduct should have known would make the other person “[f]eel seriously alarmed, disturbed, or frightened.”  That may sound reasonable, but much speech, especially political speech, is meant to “disturb” a person.  The Supreme Court has repeatedly held that, while the making of “true threats” can legitimately be criminalized, speech cannot be banned because it makes someone else uncomfortable or upset.  Moreover, earlier this month, in Reed v. Town of Gilbert, the U.S. Supreme Court made it clear that content based speech restrictions—and the speech at issue in this case was supposedly illegal because of its content—are  almost never permissible.

The Superior Court in Client’s case essentially held that the First Amendment did not apply because Client was making statements about a private matter and, according to the court, the First Amendment does not protect speech on private matters that are not issues of public concern.  Setting aside the fact that Client was speaking not merely about a single affair, but about affairs in general and their impact on marriages and society, there is little support for the court’s apparent view that only speech about matters of public concern are protected by the First Amendment.

I will file a brief setting out my client’s First Amendment argument after the Court of Appeals sets a briefing schedule for this case.  Ultimately that court will decide whether the lower court ruled correctly.

Disclaimer:  (i) The results in any case referred to refer only to the specific results in that specific case; (ii) results in any case depend upon a variety of factors unique to each case; and (iii) results in this case do not guarantee or predict a similar result in any future case undertaken by The Kaplan Law Firm or Matthew B. Kaplan.