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Illinois Supreme Court Strikes Down Part of Two Stalking Statutes as Unconstitutional

by Richard Resch

The Supreme Court of Illinois has taken the relatively rare step of striking language from two stalking statutes as facially unconstitutional because they violate the First Amendment to the U.S. Constitution.

In the November 30, 2017, opinion, the Supreme Court vacated Walter Relerford’s convictions for stalking and cyberstalking. Relerford was accused of having engaged in a course of conduct and communications that he knew (or should have known) would cause his alleged victim to suffer emotional distress.

The conduct consisted of sending several emails following up on a job opportunity, waving at the alleged victim, showing up unbidden at the alleged victim’s place of work (where Relerford had also hoped to work), and posting an unintelligible rant on Facebook.

He was convicted of violating 720 ILCS 5/12-7.3(a) (stalking) and 720 ILCS 5/12-7.5(a) (cyberstalking). The relevant portions of the statutes read: “A person commits stalking [cyberstalking] when he or she knowingly engages in a course of conduct [using electronic communication] directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

On appeal, Relerford argued that the provisions of the stalking and cyberstalking statutes under which he was convicted are facially unconstitutional as violations of the right to free speech under the U.S. and Illinois Constitutions. The State defended the statutes by arguing they do not encroach upon free speech rights because the communications prohibited are categorically unprotected by the First Amendment. According to the State, the prohibited communications are covered by either the exception to the First Amendment for true threats or speech integral to criminal conduct. The Illinois Supreme Court rejected the State’s argument.

The Court discussed the First Amendment’s prohibition against content-based laws, which are presumed to be invalid. United States v. Stevens, 559 U.S. 460 (2010). It then explained that the U.S. Supreme Court recognizes certain “historic and traditional” categories of expression that are not protected by the First Amendment. United States v. Alvarez, 567 U.S. 709 (2012). Of relevance to this case are true threats, Watts v. United States, 394 U.S. 705 (1969), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949).    

The Court observed that the statutes at issue prohibit communications to or about a person that would cause a reasonable person to suffer emotional distress; however, communications that “are pleasing to the recipient due to their nature or substance are not prohibited.” As such, the Court concluded that the statutes are content-based restrictions on speech.

It then turned its attention on the State’s argument that the communications prohibited by the statutes are not protected by the First Amendment because they fall within either the exception for true threats or criminal conduct.

According to the U.S. Supreme Court, a true threat contains a “serious expression of an intent to commit an act of unlawful violence.” Virginia v. Black, 538 U.S. 343 (2003). The Illinois Supreme Court noted that the State “offers no cogent argument as to how a communication to or about a person that negligently would cause a reasonable person to suffer emotional distress fits into the established jurisprudence on true threats.”

Furthermore, the Court observed that it remains an open question “whether the true threat exemption from the first amendment would apply to a statement made with innocent intent but which negligently conveys a message that a reasonable person would perceive to be threatening.” Thus, the Court concluded that communications prohibited by the statues in question do not constitute true threats.

The State also argued that the statutes target only “speech integrally related to criminal conduct,” so the communications prohibited are not protected by the First Amendment. The State relied on United States v. O’Brien, 391 U.S. 367 (1968), to support its position. O’Brien held that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations of First Amendment freedoms.”

The Illinois Supreme Court flatly rejected that argument. It pointed out that nothing in the statutes requires speech and nonspeech elements to be combined. Each of the actions identified in the statutes stands alone as actions that may form the basis of criminal liability. For instance, communications that cause emotional distress to a person are prohibited under the statutes, but there is no requirement that the communications be accompanied by any other action to result in criminal liability. The communications alone are sufficient to violate the statute, and so the statutes do not target only “speech integrally related to criminal conduct.”

Since the communications targeted by the statutes are protected by the First Amendment, the Court analyzed their constitutionality under the overbreadth doctrine. A statute is overbroad on its face if it bars constitutionally protected activity as well as activity that may rightfully be prohibited. Grayned v. City of Rockford, 408 U.S. 104 (1972). Overbroad statutes are constitutionally prohibited because of their chilling effect on protected speech.

The Court noted that the statutes criminalize a multitude of expressive activities that may cause a person emotional distress but are nevertheless clearly protected by the First Amendment. For instance, the statues make it a criminal act for a person to attend a town meeting and communicate criticism at an elected official about an issue of public concern if he or she should know it will cause the listener emotional distress. But such communication is a quintessential example of the type of speech protected by the First Amendment. Consequently, the Court held that the sections of the statutes at issue are overbroad on their face and thus facially unconstitutional.

Accordingly, the sections of the statutes are overbroad and facially unconstitutional, i.e., unconstitutional with respect to everyone, not limited to just Relerford. The Court struck the phrase “communicates to or about” from the statutes and vacated Relerford’s convictions under them. See: People v. Relerford, 2017 IL 121094 (2017). 

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