From the extensive opinion in Rokhvand v. Herzfeld, issued by D.C. Court of Appeals Judge Roy McLeese, with Judges Corinne Beckwith and John Howard concurring:
This matter stems from three separate episodes that unfolded on three distinct days in March and May of 2024, during demonstrations outside the Israeli Embassy in Washington, D.C….
Ms. Rokhvand and Ms. Barmada conducted a months-long protest in front of the Israeli Embassy in the nation’s capital to protest Israel’s recent military actions in Gaza…. The demonstrators reserved a designated area along the sidewalk to set up their displays—flags, tents, and signs—and to participate in “noise demonstrations” where they spoke into megaphones, played Palestinian music, or used noise-producing devices. Their signage included large placards criticizing Israel’s actions in Gaza, and there was even a sign offering earplugs to passersby near the curb.
Rabbi Herzfeld serves as the spiritual leader of a Washington, D.C. congregation and is the founder and head of a Jewish school. Throughout his time in D.C., he has been deeply involved with the surrounding community and has collaborated with other local religious leaders and elected officials. He maintains close ties with family and friends in Israel and was “devastated” by Hamas’s October 7, 2023, attack on Israel. Neither Ms. Barmada nor Ms. Rokhvand had prior knowledge of or prior meetings with Rabbi Herzfeld before their interactions with him during the embassy demonstrations, and likewise he did not know them before those encounters.
The first incident occurred in the middle of the day while Ms. Barmada and a small group of protesters were at the site, though Ms. Rokhvand was not present. According to Ms. Barmada, a party of men including Rabbi Herzfeld moved toward the protest and began to walk slowly through the crowd, scanning the scene with intense attention. Ms. Barmada testified that she heard Rabbi Herzfeld refer to her as a Hamas supporter and a terrorist who endorsed raping women and beheading babies. Another man in the same group directed a hostile taunt at her by calling her a Nazi and suggesting she should go to a concentration camp.
Rabbi Herzfeld then started addressing the assembly, pointing at Ms. Barmada and describing the protesters as the “wicked people” whom they would defeat. The men continued to approach the protesters, moving back and forth in front of them while Ms. Barmada and the Rabbi exchanged a few remarks; at one point Herzfeld pulled something from his pocket and stood near her with his companions. Ms. Barmada perceived this exchange as a deliberate attempt to intimidate her. She felt frightened, harassed, and that the episode infringed upon her sense of safety.
Rabbi Herzfeld testified that the first incident took place on a Jewish holy day commemorating the Esther narrative, a queen who saved the Jewish people from annihilation. He went to the embassy to pray for hostages held by Hamas in Gaza and encountered a “surreal” scene in which participants were shouting vile things. As the group moved through the protest, Ms. Barmada spoke into a megaphone accusing the group of “celebrating terror” and of being “proud of terrorizing children.”
Rabbi Herzfeld did not direct insults at Ms. Barmada and did not ask anyone with him to do so. He found it necessary to raise his voice to be heard by the group because the protesters spoke through megaphones, while he was trying to address them. He described the protesters as resembling the supporters of the king in Esther’s story, arguing that they did not want Israel to defend itself against Hamas attacks. He opened a prayer book but found it difficult to concentrate amid the protesters’ noise.
Rabbi Herzfeld subsequently filed suit in federal court against Ms. Rokhvand and Ms. Barmada over the first incident, alleging that the protesters assaulted him and caused a hearing-related injury from the noise. He gave an interview to Fox News regarding the lawsuit, characterizing the incident as part of a “dangerous trend” of “targeting Jews, attacking Jews.”
The press coverage stemming from the suit left Ms. Rokhvand in a state of fear. She worried that her full name had been publicly linked to claims that she was “doing things… against Jewish people which weren’t true” on a day when she was not present at the embassy. She believed the suit and the resulting publicity had “put a target on [her] back” as a pro-Palestinian activist.
The second incident occurred about a month later, the day after Ms. Barmada and Ms. Rokhvand had been served in connection with Rabbi Herzfeld’s federal suit. Ms. Barmada described a car approaching the protest area with unusual slowness, even though the road was otherwise clear. A man in the passenger seat held a steady, taunting stare toward her through the window. Ms. Barmada felt alarmed and then panicked when she recognized the driver as Rabbi Herzfeld. Ms. Rokhvand observed the same sequence, which heightened her own concerns.
Herzfeld rolled down the car window with an unsettling smile and asked, “How come you support people raping innocent women?” He then rolled the window back up and drove on. For Ms. Barmada, the encounter felt like harassment—an invasion of privacy in which she felt watched and scrutinized.
According to Herzfeld, he did not know that Ms. Barmada or Ms. Rokhvand were present at the protest when he requested his driver to slow down so that he could read the banners. He testified that he did not arrive at the embassy with the understanding that they would be there. He explained that his inquiry about support for raping innocent women followed his recent viewing of a film addressing “the weaponization of sexual assault” on October 7.
The third incident occurred later that same week during daylight at the protest site. Ms. Rokhvand and Ms. Barmada described Herzfeld and a few associates arriving, with Herzfeld loudly directing one of his companions to photograph the signs and items at the site—including a container of earplugs. In response, Ms. Rokhvand made a frantic phone call to Ms. Barmada, who had stepped away from the demonstration, because she felt fearful and anxious about Herzfeld’s presence.
Ms. Rokhvand saw Herzfeld engaging with his companions while staring at her, which led her to begin recording the group on her phone. Immediately after, a man approached Ms. Rokhvand with his own phone and came very close to her, making a series of remarks about the fear she displayed and whether she intended to conceal her face. He pressed his face to the camera lens, stating that he would reveal who they really were, and then gestured toward Herzfeld before returning to his position across the street. This exchange prompted Ms. Rokhvand to call Ms. Barmada again to inform her that the men had made “threatening” remarks.
According to Herzfeld, his aim that day was to attend the embassy to hold a press conference related to his federal action. He asserted that he approached the protest to survey the signs but did not rummage through anyone’s belongings. He stressed that he did not solicit or encourage the man who approached Rokhvand and that he had no interest in any interaction with her that particular day.
In response to these incidents, Barmada adopted protective measures, including a buddy system among the protesters and the installation of additional security cameras at her residence. Rokhvand likewise installed a home security system and educated her children to stay alert to the possibility of further encounters with Herzfeld and the man who approached Rokhvand during the third incident….
Both Barmada and Rokhvand sought anti-stalking protections against Herzfeld, but the trial court upheld the denial of their petitions, concluding that Herzfeld’s conduct did not constitute a constitutionally unprotected true threat:
The court found no explicit threats to inflict bodily harm during the incidents, and the appellate record supports that conclusion. It acknowledged that there were crude remarks, including a suggestion that “the wicked people” at the protest were those who engaged in harmful conduct and that they would be defeated.
Concerning the first incident, the court concluded that Herzfeld’s remarks labeling the protesters as “wicked” and stating they would be defeated were not directed at Ms. Barmada (nor was Rokhvand present). Regarding the second incident, it found that the question of why protesters supported rape was the sort of provocative comment commonly heard at protests, even though it was upsetting. These findings align with the video evidence and testimony, and the appellants do not contest them specifically.
As the trial court held, these “nasty comments,” made in the context of a public demonstration, did not amount to threats and fall within the realm of protected speech. Even statements that could be interpreted as threatening unlawful violence, when uttered in the framework of political discourse, may not constitute a true threat if a reasonable recipient would not perceive them as such. Within this framework, Herzfeld’s remarks, which were not literally threatening and were not primarily aimed at Rokhvand or Barmada, remained within the protection afforded to speech in political debate, straddling the line between rhetorical hyperbole and real threats.
Rokhvand and Barmada argued that the trial court erred by not sufficiently considering threats made by intermediaries or co-conspirators acting on Herzfeld’s behalf. The court declined to attribute the third-party conduct to Herzfeld, reasoning that, even when considering all third-party actions presented at trial, they do not supply two or more instances of true threats.
During the first incident, one of Herzfeld’s companions referred to Barmada as a “Nazi bitch” and urged her to “go to the concentration camp,” while Barmada, using a megaphone, accused the group of men of “celebrating terror” and of “proudly terrorizing children.” Like Herzfeld’s remarks discussed above, the man’s statements were political speech—one that a typical listener familiar with the context would not interpret as a direct threat.
That leaves the encounter with another of Herzfeld’s associates during the third incident, when a man who accompanied Herzfeld drew very close to Rokhvand and directed several remarks at her. This interaction formed the subject of a separate anti-stalking petition brought by Rokhvand against that individual, which the trial court denied. The court concluded that this single encounter did not, by itself, establish a stalking trajectory; and even if it did, it could not, by itself, constitute a course of conduct of stalking.
The court also held that the D.C. anti-SLAPP statute applies to anti-stalking petitions just as it does to other claims. That statute allows for the prompt dismissal of meritless cases based on speech on public matters and provides that a prevailing defendant may recover its attorney fees; however, the precise disposition of attorney’s fees in this action was left to the trial court, as explained in the opinion.
Robert Parker, Steven Lieberman, and Nicole DeAbrantes represented Herzfeld.
