The District of Columbia Court of Appeals has issued a decision in favor of my client on a case involving important First Amendment issues.
A D.C. Superior Court Judge had ruled that my client had committed the crime of stalking by posting on the internet the fact that a complaining individual had had an affair with my client’s wife. The complainant was upset that this truthful information had hurt his representation. The trial court ruled that my client had violated the law by posting the truth on the internet and issued a restraining order against him, relying on legislation meant to deter domestic violence.
Last week the Court of Appeals reversed this decision. It did not, however, reach the First Amendment issue. Instead it based its decision on a separate argument that I had made on behalf of my client—the trial judge had mistakenly applied an older version of the D.C. stalking law that had been repealed at the time of my client’s conduct. (The current version of the law is codified at D.C. Code § 22–3133.)
The case now goes back to the Superior Court trial judge. If she again upholds her decision applying the correct version of the anti-stalking statute—it is not clear whether she will do so—the case is likely to return to the Court of Appeals, this time for a decision on the merits of my client’s First Amendment arguments. Our First Amendment arguments rely heavily a potentially groundbreaking decision issued last year by the U.S. Supreme Court, Reed v. Town of Gilbert, 576 U.S. ___ (2015). Reed essentially held that language that restricts speech based on the content of that speech is almost always unconstitutional. In this case the trial court judge had found that the speech at issue was criminal because of its content—the statements made upset the complainant. That, in my view, is not a proper basis to restrict speech, especially after the Reed decision.