No Anti-Stalking Order Against Rabbi Based on His Actions Opposing Anti-Israel Protest

This case arises from three incidents that occurred on three separate days in March and May of 2024 during demonstrations in front of the Israeli embassy….

Ms. Rokhvand and Ms. Barmada were engaged in a multi-month demonstration in front of the Israeli Embassy in Washington, D.C. in protest of Israel’s recent military actions in Gaza…. The protesters used a designated area outside the embassy to set up their display of flags, tents, and signs and to engage in “noise demonstrations,” during which they spoke into megaphones, played Palestinian music, or used noise machines. They displayed large signs with messages against Israel’s military actions in Gaza, as well as a sign offering earplugs to passersby, along the sidewalk.

Rabbi Herzfeld is the rabbi of a Washington, D.C. congregation and the founder and leader of a Jewish school. During his tenure in D.C., Rabbi Herzfeld has been involved in the wider community and worked with other local faith leaders and elected officials. Rabbi Herzfeld has close relationships with family and friends in Israel and was “devastat[ed]” by the October 7, 2023, Hamas attack on Israel. Rabbi Herzfeld did not know of Ms. Barmada or Ms. Rokhvand before his interactions with them at the Israeli embassy. Likewise, neither Ms. Barmada nor Ms. Rokhvand had heard of or met Rabbi Herzfeld before their interactions with him during the embassy demonstrations.

The first incident occurred in the middle of the day while Ms. Barmada and a few other protesters, not including Ms. Rokhvand, were at the protest site. According to Ms. Barmada, a group of men including Rabbi Herzfeld approached the protest site and began slowly walking through the demonstration and “intensely … looking around.” Ms. Barmada heard Rabbi Herzfeld call her a “Hamas supporter” and a “terrorist” who supported “raping women” and “beheading babies.” Another man in the group called Ms. Barmada a “Nazi bitch” and said that she should “go to the concentration camp.”

Rabbi Herzfeld began speaking about the protesters, pointing at Ms. Barmada and referring to the protesters as the “wicked people” that “we will defeat.” The group of men again approached the protesters and walked back and forth in front of them, during which time Ms. Barmada and Rabbi Herzfeld exchanged a couple of remarks and Rabbi Herzfeld took something out of his pocket and stood near Ms. Barmada with his group. Ms. Barmada perceived the interaction to be a threat designed to “intimidate” her. She felt “scared” and “harassed” and that the incident was “violating.”

Rabbi Herzfeld testified that the first incident occurred on a Jewish holy day commemorating the biblical story of Esther, a Queen who saved the Jewish people from annihilation. Rabbi Herzfeld went to the embassy to pray for the hostages held by Hamas in Gaza. He and a few others arrived to a “surreal scene” of people “shouting all sorts of terrible things.” As the group was walking through the protest, Ms. Barmada spoke into a megaphone and accused the group of “celebrating terror” and being “proud of terrorizing children.”

Rabbi Herzfeld did not call Ms. Barmada a name and did not ask anyone he was with to do so. Rabbi Herzfeld had to yell in order to speak to the group he was with, because the protesters spoke into megaphones while Rabbi Herzfeld was speaking. He spoke about the protesters being akin to the supporters of the king in the story of Esther, because the protesters did not want Israel to defend itself from attacks by Hamas. Rabbi Herzfeld took out a prayer book but was “not able to concentrate properly” due to the protesters’ noise.

Rabbi Herzfeld filed a lawsuit against Ms. Rokhvand and Ms. Barmada in federal court related to the first incident, claiming that the protesters had assaulted him and caused him a noise injury. He did an interview with Fox News about the lawsuit, during which he characterized the incident as part of a “dangerous trend” of “targeting Jews, attacking Jews.”

The press coverage regarding the lawsuit made Ms. Rokhvand “very terrified.” Ms. Rokhvand was concerned because her full name had been publicly associated with claims that she was “doing things … against Jewish people which weren’t true” on a day that she was not even present at the embassy. Ms. Rokhvand believed that the suit and the resulting press coverage had “put a target on [her] back” as a pro-Palestinian activist.

The second incident took place over a month later, the day after Ms. Barmada and Ms. Rokhvand were served in Rabbi Herzfeld’s federal lawsuit. According to Ms. Barmada, a car approached the protest site, moving very slowly even though no other cars were on the road. Ms. Barmada saw a man in the passenger seat staring “intensely” out the window at her with “a very taunting look.” Ms. Barmada was “alarmed” by the situation and then “felt panicked” once she recognized the man in the car as Rabbi Herzfeld. Ms. Rokhvand also saw these things, which made Ms. Rokhvand “very concerned.”

Rabbi Herzfeld then rolled down the window of the car with an “eerie smile on his face” and said, “How come you support people raping innocent women?” Rabbi Herzfeld then rolled up his window, and the car continued down the street. The interaction made Ms. Barmada feel like she was being “harassed” and “watched and monitored.”

According to Rabbi Herzfeld, he did not know that Ms. Barmada or Ms. Rokhvand were at the protest site when he asked his driver to slow down so that he could read the protesters’ signs. Rabbi Herzfeld never went to the embassy “with the understanding” that either Ms. Barmada or Ms. Rokhvand would be there. Rabbi Herzfeld asked the protesters if they supported raping innocent women because he had recently watched a movie about the “weaponization of sexual assault” on October 7th.

The third incident took place later that week, again during the day at the protest site. According to Ms. Rokhvand and Ms. Barmada, Rabbi Herzfeld and a couple of other men arrived and walked through the demonstration, while Rabbi Herzfeld loudly requested that one of the people with him take pictures of the posters and items at the site, including the container of earplugs. Ms. Rokhvand made a “frantic phone call” to Ms. Barmada, who had stepped away from the demonstration, because she was “scared and worried” about Rabbi Herzfeld’s presence.

Ms. Rokhvand saw Rabbi Herzfeld speaking with his companions while looking and pointing at her, and she began recording the group on her phone. Immediately after, one of the men approached Ms. Rokhvand with his phone raised and got very close to her, stating among other things that it was “very interesting the fear you are showing here” and that it seemed she did not want to show her face. The man put his face right up against Ms. Rokhvand’s phone camera, stating “see I’ll show my face to you” and “I’ll go to take a look and find out who you guys really are.” The man then returned to where Rabbi Herzfeld was standing across the street and gestured back toward Ms. Rokhvand. After the interaction with the man, Ms. Rokhvand called Ms. Barmada and told her that the men made “threatening” comments.

According to Rabbi Herzfeld, he went to the embassy to do a press conference about his federal lawsuit. Rabbi Herzfeld approached the protest to look at the signs, but he did not “go through anyone’s stuff.” Rabbi Herzfeld moved on to the embassy. Rabbi Herzfeld said that he did not encourage, instruct, or prompt the man who approached Ms. Rokhvand. Rabbi Herzfeld “had no interest in any interaction with [Ms. Rokhvand] that day.”

Ms. Barmada implemented security measures after the incidents with Rabbi Herzfeld, including a buddy system for the protesters and additional security cameras at her home. Ms. Rokhvand also installed a security system in her home and taught her children to be alert for Rabbi Herzfeld and the man who had approached her during the third incident….

Barmada and Rokhvand sought anti-stalking orders against Herzfeld, but the court affirmed the denial of their petitions, concluding that Herzfeld’s conduct wasn’t a constitutionally unprotected true threat:

The trial court found that there were no explicit “threat[s] to do bodily harm” made during the incidents, and the record supports that finding. The trial court acknowledged that “there[ were] nasty comments” made in which Rabbi Herzfeld “basically … suggest[ed] [that] people who are at the protest are people who support bad conduct” and said that “these are the wicked people; we will defeat them.”

With regard to the first incident, during which Rabbi Herzfeld referred to the protesters as “wicked people” who would be defeated, the trial court found that Rabbi Herzfeld was not directing his speech specifically at Ms. Barmada (or Ms. Rokhvand, who was not present). Regarding the second incident, in which Rabbi Herzfeld asked why the protesters supported rape, the trial court found that it was “the kind of provocative comment that people make at protests,” even though the question would be upsetting. The above findings are supported by the video record and testimony in the case, and we do not understand Ms. Rokhvand and Ms. Barmada to specifically contest them.

As the trial court concluded, these “nasty comments” in the context of a public protest were not threats and are “exactly the kind of things that are constitutionally protected.” … Even speech that, if taken literally, threatens unlawful violence against another person (which we do not have in this case) may not be a true threat when made in the context of a political demonstration, such that the speech “[could] not reasonably be perceived as a threat.” Within that legal framework, Rabbi Herzfeld’s comments, which were not literally threatening and largely were not specifically directed at Ms. Rokhvand or Ms. Barmada, fall comfortably on the protected-speech side of the line between political hyperbole and true threats….

Ms. Rokhvand and Ms. Barmada argue that it was error for the trial court to fail to adequately consider threats made by “intermediar[ies] or co-conspirator[s]” of Rabbi Herzfeld. We decline to address the question whether others’ conduct could be attributed to Rabbi Herzfeld because, even considering all the conduct by third parties raised at trial, that conduct does not establish two or more instances of true threats.

During the first incident, one of the men with Rabbi Herzfeld called Ms. Barmada a “Nazi bitch” and said that she should “go to the concentration camp,” while Ms. Barmada spoke into a megaphone and accused the group of men of “celebrating terror” and being “proud of terrorizing children.” The man’s comments were, like Rabbi Herzfeld’s comments discussed above, political speech that “an ordinary reasonable recipient who is familiar with the context of the statement” would not interpret as a threat.

That leaves the encounter with another of Rabbi Herzfeld’s companions during the third incident, during which a man who approached the embassy area with Rabbi Herzfeld came very close to Ms. Rokhvand and made a number of comments to her. This encounter was the subject of another anti-stalking petition brought by Ms. Rokhvand against the man in question, which the trial court denied. The trial court concluded, in a decision included by the parties in their appendix in this court, that the encounter did not contribute to a course of conduct of stalking, in part because the man did not threaten Ms. Rokhvand. In any event, this encounter standing alone cannot make up a course of conduct of stalking….

The court also held that the D.C. anti-SLAPP statute applied to anti-stalking order requests as much as to other claims. That statute provides for prompt dismissal of meritless cases brought based on speech on public matters, and provides that a losing plaintiff in such a case has to pay the defendant’s attorney fees; but how that plays out as to the attorney fee request here is left for the trial court (for reasons you can read about in the opinion).