I represent a client who was found in 2014 to have committed the crime of stalking because he truthfully told others that another person had had an affair with his wife.  Although what my client said may have embarrassed his wife’s affair partner, nothing he said could be construed as doing anything more than causing embarrassment—certainly, nothing he said constituted a threat or anything that could even be remotely interpreted as a threat.  Nevertheless, the individual named by my client was unhappy and sought court intervention to prevent my client from making further truthful but embarrassing statements about what had happened.  According to the District of Columbia Superior Court, the trial court in this case, my client’s statements were not protected by the First Amendment to the Constitution’s guarantee of the freedom of speech because they were not about government, politics or other matters of public interest.  Because my client’s conduct was, according to the trial court, criminal and unprotected by the First Amendment, the trial court issued a Civil Protection Order (“CPO”) against my client and ordered him to pay damages.  We think that the trial court’s actions violated my client’ First Amendment rights and recently appealed this case to the District of Columbia Court of Appeals.

Disclaimer

This is the second appeal in this long-running case.  Initially, as I noted in earlier blog posts, after the trial court’s 2014 decision we had appealed, arguing that the First Amendment simply does not allow the government to make it a crime for a married person to truthfully say that his or her spouse has had an affair with another person.  In other words, the protections of the First Amendment cover speech about private as well as public matters.  We also noted that, in finding that my client had committed the crime of stalking, the Superior Court judge had mistakenly relied on an old version of the anti-stalking law that had actually been repealed by the D.C. City Council.  We won that first appeal because of the trial court’s mistaken reliance on the repealed statute.  Courts generally try and avoid deciding issues of constitutional law if they are able to do so and, in the case of our prior appeal, that’s exactly what the Court of Appeals did—ruling in our favor on the narrow grounds that the trial court had relied on the wrong statute, it sent the case back to the trial court to apply the correct statute.  It did not reach our First Amendment arguments.

On remand from the Court of Appeals the trial court applied the correct statute and, once again, found that my client’s speech constituted the crime of stalking and that most of his statements were not protected by the First Amendment.  We appealed again and again argue in our just-filed brief that the trial court’s narrow view of the First Amendment is wrong.

This case raises important issues of First Amendment Law.  Most United States Supreme Court First Amendment cases understandably focus on speech on matters of public interest—criticism of government policies or officials, for example.  But I think that, if faced with the issue directly, the Supreme Court would agree with our appellate argument—that it is simply inconceivable that the First Amendment allows the government to criminalize truthful speech that does nothing more than embarrass a third person, especially when, as was the case here, the embarrassment is caused by the third person’s own morally questionable conduct.

Our brief, which sets out the factual and legal issues in detail, can be found here.  The Court of Appeals is not likely to decide the case for at least several months.