White v. Muller

• Decision Date: 06 October 2017
• Docket Number: Case No. 2017 CPO 4220
• Parties: TRAYON WHITE Petitioner, v. JOHN MULLER. Respondent
• Court: D.C. Superior Court

TRAYON WHITE Petitioner, v. JOHN MULLER. Respondent

Case No. 2017 CPO 4220

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA DOMESTIC VIOLENCE DIVISION

October 6, 2017

Judge Steven N. Berk

ORDER

This matter is before the Court on the Petitioner's request for a Civil Protective Order (CPO). The Petitioner Trayon White, a District of Columbia City Council Member, alleges that the Respondent John Muller, a journalist, stalked him. D.C. Code § 22-3133 (a). On September 27, 2017, the Court held a trial on the Petitioner's allegations. The Court reserved ruling and requested that the parties return on October 6, 2017 to receive the Court's order. After thorough consideration of the entire record, the Court finds that the Petitioner failed to prove by a preponderance of the evidence that the Respondent stalked him in violation of D.C. Code § 22-3133 (a), and therefore, the Petitioner's request for a CPO is denied.

INTRODUCTION

At first glance, this case seems rather straightforward; a pugnacious reporter aggressively pursuing a story. Surely, the First Amendment protects such endeavors no matter the politeness of the journalist. To that end, the District's stalking statute explicitly carves out conduct protected by the First Amendment. D.C. Code § 22-3133 (b). The facts in this case, however, command a more nuanced analysis. Although a journalist, the record demonstrates that Mr. Muller's approach to Mr. White was largely personal in tone and substance. For example, in repeated text messages Mr. Muller implored and taunted Mr. White to "be a man" and repeatedly accused Mr. White of not being from the "street". But as discussed herein, even if these messages failed to constitute protected speech on matters of public concern, standing alone they cannot establish a crime under the Interfamily Offenses Act.

LEGAL STANDARD

This Court can only issue a CPO if the Court finds that good cause has been shown that "the respondent has committed or threatened to commit a criminal offense against the petitioner." D.C. Code § 16-1005(c). When deciding on whether to issue a CPO, the Court must consider "the entire mosaic" of the relationship, Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991), and the Intrafamily Offenses Act is to be generously construed. Cruz-Foster at 931. The Petitioner has the burden of showing good cause by a preponderance of the evidence. Cruz-Foster at 930.

Stalking is the only intrafamily offense at issue in this proceeding. Stalking is defined as "purposefully engag[ing] in a course of conduct directed at a specific individual . . . (1) [w]ith the intent to cause that individual to . . . (2) [t]hat the person knows would cause that individual reasonably to . . . or (3) [t]hat the person should have known would cause a reasonable person in the individual's circumstances to . . . [f]ear for his or her safety or the safety of another person; . . . [f]eel seriously alarmed, disturbed, or frightened; or . . . [s]uffer emotional distress." D.C. Code § 22-3133 (a). A "course of conduct" means "directly or indirectly . . . on two or more occasions, to: (A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual." D.C. Code § 22-3132(8) (A). (Emphasis added).

The stalking statute plainly states that it "does not apply to constitutionally protected activity." D.C. Code § 22-3133 (b). Therefore, the Court must also consider whether Mr. Muller's actions are protected by the First Amendment. To determine whether Mr. Muller's actions are protected speech, this Court looks to the thoughtful analysis of Judge Edelman in the recent case Gray v. Sobin, 2013 CPO 3690 (D.C. Sup. Ct. 2013), where the Court was also required to navigate the intersection between the District's stalking statute and the First Amendment. In that case, the Petitioner, an employee of the Court Services and Offender Supervision Agency (CSOSA) previously entered and maintained information about the Respondent on the sex offender registry. In response, the Respondent threw documents with the Petitioner's picture around the CSOSA office and posted pictures of her with derogatory information on his website entitled "The Idiots Registry". The Petitioner sought a CPO, claiming the Respondent's behavior constituted stalking. Judge Edelman was tasked with evaluating whether the Respondent's conduct was constitutionally protected speech or could form a basis for stalking.

Judge Edelman wrote "'[A]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.' Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). Speech on 'public issues should be uninhibited, robust, and wide-open . . . [because such] speech occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.' Snyder v. Phelps, 131 S. Ct. 1207, 1215, 179 L. Ed. 2d 172 (2011) (citing to New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) and Connick v. Myers, 461 U.S.138, 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983)) (internal quotation marks omitted). However, 'not all speech is of equal First Amendment importance[;] . . . where matters of purely private significance are at issue, First Amendment protections are less rigorous.' Snyder, 131 S. Ct. at 1215 (internal quotations and citations omitted). When speech relates to private matters, 'there is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import.' Id. at 1215-16 (quoting Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985))." With this framework, Judge Edelman concluded that the Respondent's conduct, as a criticism of the sex offender registry and CSOSA, was a matter of public concern, and thusly was protected by the First Amendment.

The crux of Judge Edelman's analysis rested on whether the conduct at issue related to a matter of "public concern" (and hence, whether it falls outside the scope of the District's stalking statute). D.C. Code § 22-3133 (a). Adopting that analysis to the instant case, this Court must answer the following: 1) Is Mr. Muller's conduct, in the instances alleged by Mr. White, protected speech under the First Amendment? 2) If not, did Mr. Muller, on two or more occasions, engage in conduct against Mr. White that is prohibited by the stalking statute?

FINDINGS OF FACT

Based on the testimony and evidence presented at trial the Court finds the following facts:

Mr. White is the D.C. Council Member for Ward 8. Mr. Muller is a freelance journalist, focusing on local issues, and a Ward 8 resident. In early June 2017, Mr. White gave Mr. Muller a quote to use in a CityPaper article via text message.

1. In late June 2017, Mr. Muller sent Mr. White texts requesting an interview. Mr. White declined Mr. Muller's request to talk "man to man". Mr. Muller then repeatedly texted and called Mr. White's personal cell phone throughout the evening. By the Court's count, Mr. Muller sent Mr. White at least 47 text messages that night.¹ Many of these text messages contain personal attacks, such as "You are a fraud and the whole city will know"; "you are not a street dude. Just a weak dude"; and "the whole city will know you are a fraud. Ward 8 counsel is too big for you. You are petty and small time. You say nothing that means anything. You are not a leader. Just a wannabe. All you ever will be."

2. After these texts, Mr. Muller posted similar messages to a Facebook page called The Great Ward Eight.² These posts contained statements such as "[Mr. White] isn't from the streets." The Court notes images of these posts were not submitted at trial. Mr. White asked Mr. Muller to stop making these posts.

3. Towards the end of July or early August 2017, Mr. White hosted a public meeting at Excel Academy. Throughout the meeting, Mr. Muller "heckled" Mr. White by trying to ask questions. At the end of the meeting, Mr. Muller tried to walk up to Mr. White. Mr. White told Mr. Muller to leave him alone and the two parted ways.

4. In mid-July, Mr. Muller went, with other individuals, including Christopher Hawthorne, a witness at trial, to Mr. White's home and took photographs of Mr. White's car, its license plate, and a parking ticket. Mr. Muller and Mr. Hawthorne testified thatthey were investigating Mr. White's parking tickets due to a parking ticket proposal that Mr. White made to the D.C. Council. Mr. Hawthorne and Mr. Muller testified that they located Mr. White's car in the alleyway behind his house and were able to photograph it from the public street/ walkway. Mr. Muller then posted the images to The Great Ward Eight Facebook page. Mr. White later saw these photographs on Facebook.

5. Mr. White testified that after he received the Temporary Protective Order, which prohibited Mr. Muller from contacting Mr. White, Mr. Muller authored a post about the matter to the Great Ward Eight Facebook page. The post stated, in part, that Mr. White "knowingly insinuated, fabricates, and...