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Matt Kaplan has won, on behalf of his client, an important First Amendment case decided by the en banc D.C. Court of Appeals.  This decision strengthens First Amendment protections in the District of Columbia and will surely influence courts facing similar issues in other jurisdictions.

The case arose after The Kaplan Law Firm’s client, Dr. Mashaud, learned that, while his wife was an intern at a District of Columbia company, she had had a brief affair with Mr. Boone, a company vice president.  Mashaud was not pleased when he learned of this and he told others, including some of Boone’s friends and colleagues, about the affair, expressing his view that what had happened suggested that Boone was not a person of good character and that his conduct may have violated the expectations that Boone’s employer had for its employees.  This, in turn, made Boone unhappy.  He could not sue for libel because Mashaud’s words were true and truth is an absolute defense to libel.  Instead, he took Mashaud to domestic relations court, where he obtained a protective order silencing Mashaud and ordering him to pay money to Boone.

The domestic relations court judge determined that Mashaud’s truthful and non-threatening statements violated D.C.’s criminal anti-stalking law, D.C. Code § 22–3133, which, among other things, makes it a crime to speak words to another that the speaker knows or should know would cause a person to “[f]eel seriously alarmed, disturbed, or frightened.”  A person who violates the statute is subject to a year of imprisonment or, in certain circumstances, to ten years’ incarceration. 

Mashaud, represented by Matt Kaplan of The Kaplan Law Firm, argued that the First Amendment’s freedom of speech provision does not permit the government to criminalize statements that may disturb or alarm another, but that are truthful and not threatening.  The Court of Appeals agreed.  It pointed out that the Supreme Court has consistently recognized that the First Amendment protects the right of individuals to say things that might upset others.  Indeed, it noted that speech that upsets others is a routine aspect of life.  In the Court’s view, the plain language of the anti-stalking statute is inconsistent with the First Amendment.  To avoid declaring the statute unconstitutional, however, the Court imposed a limiting construction on the statute.  It said that it must be interpreted so that it only criminalizes statements that are of the type that the Supreme Court has determined are generally not protected by the First Amendment.  Speech generally not protected by the First Amendment includes speech that threatens violence, defamation, pornography, and speech integral to the commission of a crime.  The Court held that, because Mashaud’s truthful statements did not fall within one of these unprotected categories of speech, he had not violated the properly interpreted statute.  Consequently, it reversed the lower court’s determination that he had committed a crime.

The complexity and importance of the issues in the case are indicated by the unusual length of Judge Deahl’s opinion for the Court—71 pages.  Judge McLeese wrote a lengthy concurrence in the judgment in which he agreed that Mashaud should prevail, but for different reasons.

This decision largely ends this long-running matter, which has been before the Court of Appeals since 2014 and which had already produced two prior appellate opinions.  It is particularly authoritative because it was issued by all the judges of the Court sitting together—the court sitting “en banc.”  This is unusual because almost all of the Court’s decisions are issued by three-judge panels.  En banc consideration is limited to issues of particular importance.

Courts around the country have wrestled with the central issue in this case—the clash between broadly worded anti-stalking statutes, which often define certain types of speech to be stalking, and the First Amendment.  Some courts have responded by declaring portions of such statutes to be unconstitutional while others, like the D.C. Court of Appeals, have imposed a narrow construction on such laws, limiting the extent to which they criminalize non-threatening speech.

The case is Mashaud v. Boone (D.C. 2023).