Mashaud v. Boone

• Decision Date: 12 August 2021
• Docket Number: No. 16-FM-383,16-FM-383
• Citation: 256 A.3d 235
• Parties: Lauren MASHAUD, Appellant, v. Christopher BOONE, Appellee.
• Court: D.C. Court of Appeals

256 A.3d 235

Lauren MASHAUD, Appellant,

v.Christopher BOONE, Appellee.

No. 16-FM-383

District of Columbia Court of Appeals.

Argued March 29, 2017

Decided August 12, 2021

Matthew B. Kaplan, Arlington, VA, for appellant.

Governor E. Jackson III, Towson, MD, for appellee.

Before Thompson and Beckwith, Associate Judges, and Fisher,^* Senior Judge.

Dissenting opinion by Associate Judge Beckwith at page 242.

Fisher, Senior Judge:

The trial court entered a civil protection order (CPO) against appellant Lauren Mashaud based on a finding that he stalked appellee Christopher Boone by sending emails and Facebook messages to Mr. Boone's coworkers, family, and friends informing them that Mr. Boone had engaged in an extramarital affair with Mr. Mashaud's wife. Appellant contends that there was insufficient evidence to prove that he engaged in stalking and that, in any event, his speech was protected by the First Amendment. We conclude that the trial court erred in its resolution of appellant's First Amendment argument, reverse the entry of the CPO, and remand for further proceedings consistent with this opinion.

I.

The trial testimony in this case established the following facts, most of which are undisputed. Mr. Mashaud's wife (Ms. W) was working as an intern at a consulting firm when she began an affair with Mr. Boone, a vice president of the firm. The affair began in May 2013 after Ms. W and Mr. Boone attended a company happy hour. Mr. Boone testified that at the time, he believed Ms. W was unmarried, though she had mentioned being in a "rocky relationship" with a boyfriend. According to Mr. Boone, when Ms. W disclosed the following week that she was married, he was "in a complete state of shock and disbelief," told her that he could not knowingly engage in an extramarital affair, and ended the relationship. The next day, Ms. W told Mr. Boone that Mr. Mashaud had found out about the affair and informed Mr. Boone of her plans to send him a "no contact" letter via email. Mr. Boone testified that although Ms. W told her husband the affair was over, he and Ms. W continued to email each other through July 2013.

Two months later, Mr. Mashaud sent an email to three senior employees of the consulting firm, "cc'ing" Mr. Boone at his personal and work email addresses. This email stated its intent "to bring a matter to your attention that may be a violation of [the firm's] Code of Conduct and/or other policies, procedures, business ethics, and character or standard"— namely, that Mr. Boone and Ms. W had been "involved in an extramarital affair that took place, primarily, in the workplace." The message went on to state that "[a]side from the potential sexual harassment claims this situation presents, it also involves the inappropriate use of company resources and assets" as the two "have used company time and company resources to further their affair." Mr. Mashaud's email concluded:

Christopher Boone was previously sent a no contact email from my wife on May 11, 2013 (as attached), but he continues to ignore our request and fails to respect our boundaries to allow my wife and I to heal and to regain the integrity of our marriage .... I will anticipate a response from you once you have investigated these concerns and taken appropriate corrective action.

Attached to Mr. Mashaud's email were copies of several email exchanges between Ms. W and Mr. Boone. Mr. Boone testified that upon receiving this email he felt violated, threatened, and embarrassed. The evidence showed that Mr. Boone replied to the email, stating his willingness to meet and talk the matter through, but that Mr. Mashaud did not respond.

About three months later, Mr. Mashaud informed some of Mr. Boone's friends and family members of the affair through Facebook. As Mr. Mashaud explained in his testimony, Mr. Boone's cover photo and the list of people who had "liked" it were publicly available on Facebook, and for the price of one dollar Facebook allowed users to send messages to any other user, even if the two had no connection. Mr. Mashaud paid this fee and sent messages to at least fifteen users who had liked Mr. Boone's photo. These messages included much of the same information as the email to the consulting firm, stating that each recipient "should know the kind of person Christopher Boone really is," that Mr. Boone had "had a sexual affair with [Mr. Mashaud's] wife," and that Mr. Boone showed he lacked "integrity and respect for himself" by "fail[ing] to respect the boundaries of a married woman." Attached to these Facebook messages was a photo of Mr. Boone and Ms. W with another firm employee. Mr. Boone testified that when he learned about the messages he again felt violated and threatened, confused as to how Mr. Mashaud had learned his friends’ and family members’ contact information, and worried for their personal safety.

The evidence at the hearing also showed that Mr. Mashaud created a blog — called "The Power of Light and Truth" — in which he addressed issues relating to the aftermath of affairs. The publicly accessible blog mentioned Mr. Boone by name and included links to his social media accounts and his firm biography. When Mr. Boone saw the blog, he filed a police report. He also initiated the CPO action at issue in this case, alleging that Mr. Mashaud was harassing and stalking him.

At a bench trial on the CPO matter, Mr. Mashaud defended against the accusations of stalking by arguing that the evidence was insufficient to satisfy the elements of stalking and that the communications at issue — the email to the firm, the Facebook messages, and the blog posts — were constitutionally protected and therefore fell outside the scope of the stalking statute. The trial court concluded that none of the communications was constitutionally protected, found good cause to believe Mr. Mashaud had committed the offense of stalking, and issued a CPO against Mr. Mashaud. See D.C. Code § 16-1005(c). In addition to ordering both Mr. Mashaud and his wife not to assault, threaten, harass, or stalk Mr. Boone or destroy his property; to stay away from Mr. Boone's person, home, workplace, and vehicle; and not to contact Mr. Boone in any manner, the CPO also required Mr. Mashaud to enroll in a domestic violence intervention program and ordered him to pay Mr. Boone $1,800 for medical expenses he had incurred. Moreover, the CPO prohibited Mr. Mashaud from "communicat[ing] about [Mr. Boone] by name or by implication on the internet or social media."

Mr. Mashaud appealed, and we reversed the entry of the CPO on the ground that the trial court had relied on an outdated version of the stalking statute.

Mashaud v. Boone , No. 14-FM-894, Mem. Op. & J. (D.C. Feb. 29, 2016). On remand, the trial court reaffirmed its ruling that the email and the Facebook messages were not constitutionally protected because they related to matters of purely private concern, but it reached the opposite conclusion with respect to the blog posts, ruling that the blog was protected. Applying the correct version of the statute to the email and the Facebook messages, the court once again found good cause to believe Mr. Mashaud had committed the offense of stalking and reissued the CPO.¹ It concluded that appellant acted with a "vindictive motive" and "engaged in this behavior repeatedly ... with the intent to cause [Mr. Boone] to feel seriously alarmed, disturbed, or frightened or suffer emotional distress."

II.

Mr. Mashaud devotes much of his brief to his contention that D.C.’s stalking statute, both facially and as applied in this case, unconstitutionally infringed upon his freedom of speech. He also argues that the evidence in the record was insufficient to establish that he committed the crime of stalking, and thus insufficient to support the court's issuance of a CPO on that ground.

The District of Columbia's stalking statute states that a person may not "purposefully engage in a course of conduct directed at a specific individual" intending, knowing, or having reason to know that his or her course of conduct would cause the individual to "[f]ear for his or her safety or the safety of another person;" to "[f]eel seriously alarmed, disturbed, or frightened;" or to "[s]uffer emotional distress." D.C. Code § 22-3133(a)(1)-(3). By its express language, however, the statute "does not apply to constitutionally protected activity." Id. § 22-3133(b). (Note the phrasing: "constitutionally protected activity" instead of "constitutionally protected speech"). Thus, if Mr. Mashaud's activity in this case —repeatedly sending emails and messages to third parties with, as the trial court found, a "vindictive motive" and "the intent to cause [Mr. Boone] to feel seriously alarmed, disturbed, or frightened or suffer emotional distress" — was "constitutionally protected," the statute would not encompass his conduct.

We have not delineated the contours of the statutory exception for "constitutionally protected activity," and the text of D.C. Code § 22-3133(b) does not provide an unambiguous answer. One view is that the government may not criminalize any speech except for that which falls into "existing, well-established First Amendment exceptions" such as libel, threats, or obscenity. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking ," 107 Nw. U. L. Rev. 731, 762–67 (2013). The exception might, on the other hand, be read as a safety valve which states a truism — that the stalking statute "doesn't mean to cover that speech or action that it isn't allowed to cover." Id. at 765. We need not decide today where the line between constitutionally protected and unprotected conduct falls because we encounter at the outset an analytical misstep which requires a remand.

A. Protection for Speech About Matters of Private Concern

The trial court ruled that neither the email to the firm nor the Facebook messages were protected communications for purposes of § 22-3133. In the trial court's view — a view...