Matt Kaplan recently argued an important First Amendment case before the full (en banc) District of Columbia Court of Appeals. The central issue in the case is the extent to which the District of Columbia’s anti-stalking statute can constitutionally restrict the making of true statements that are not threatening to others. Mr. Kaplan argued that part of the statute, at least as it had been applied to his client, was unconstitutional because it was inconsistent with the First Amendment.
Mr. Mashaud, the Appellant in the case and Mr. Kaplan’s client, had truthfully told others that Mr. Boone, a senior official at the company where his wife worked, had had an affair with his wife. Mr. Boone was upset and embarrassed that Mr. Mashaud had disclosed this information to others and he went to the Superior Court, asserting that Mr. Mashaud’s truthful statements constituted stalking, and sought a protective order to prevent Mr. Mashaud from making similar statements in the future. A Superior Court judge agreed, ruling that, by making these truthful, non-threatening statements Mr. Mashaud had committed the crime of stalking. According to the judge, Mr. Mashaud’s speech had little or no First Amendment protection because it was not about a matter of public concern. She ordered Mr. Mashaud to pay money to Mr. Boone and to not make any similar statements in the future.
Mr. Mashaud appealed, arguing that his speech was indeed First Amendment-protected. After two prior opinion’s by three-judge panels of the court, both in favor of Mr. Mashaud but on limited grounds, the full court agreed to hear the matter, presumably to decide the constitutional issue. The oral argument before the court’s judges was unusually long–nearly three hours. In addition to the two parties, Mr. Mashaud and Mr. Boone, briefs were also submitted by the D.C. Attorney General, who intervened in the case, and by the American Civil Liberties Union (ACLU) of the District of Columbia and Professor Eugene Volokh, one of the country’s preeminent First Amendment scholars, both of whom appeared as amicus curie (friends of the court) in support of Mr. Mashaud.
The D.C. Court of Appeals is the highest court in the District of Columbia court system and is the equivalent of a state supreme court. The fact that the court heard this matter en banc is unusual, as very few cases are heard by the full court. (By coincidence, Matt Kaplan also represents the Appellant in another en banc case currently pending before the Court of Appeals.) It is likely to be some months before the Court decides this appeal.
This case is Mashaud v. Boone, 16-FM-383 (D.C.). Links to the briefing in the case are provided below. The video of the oral argument is available here.