Friday’s decision State v. Reevesdecided by Judge Jeffrey Clark (Del. Super. Ct.), evaluated Delaware’s stalking law, under which
He or she (1) “threatens or communicates with others” on 3 or more separate occasions, (2) in a manner that would cause a reasonable person to fear for his or her safety or experience severe mental anguish or distress.
The court concluded that the statute was unconstitutional when applied to certain circumstances:
[T]The statute would allow a doctor to be sued if he told a patient at least three times that, while surgery may be necessary to save the patient’s life, the effects of the surgery would cause accompanying physical pain or injury. Likewise, the statute criminalizes three complaints made by restaurant patrons on social media about poor service at a restaurant, which in turn causes the restaurant owner to suffer severe mental anguish as his business fails as a result. The statute will also criminalize when a person makes critical comments about another person on social media on at least three occasions that would reasonably cause serious mental distress to the other person….
Here’s what the court said about the state’s argument that the law is constitutional because it only applies to “speech that is integral to the commission of a criminal act”:
Broadly speaking, the state seeks to describe [the statute] as falling into [the] {Words constitute criminal conduct} Overall exception…
Overall, the speech that constitutes the criminal conduct exception is not as widespread as the State claims. Nor is it, by itself, the antidote to Mr. Levi’s facial problems.Typically, this exception is limited to criminal conduct such as bribery, extortion, conspiracy, or solicitation to commit a criminal act solitary crime. For example, it does not violate the First Amendment when the government prosecutes a defendant based on a statement such as “Give me the money or I will report you for a crime.” The First Amendment also does not protect a defendant’s statement that he gave money to a law enforcement officer to avoid arrest. The speech in these examples is an integral part of the criminal conduct, just like speech used to extort or incite another person to commit a crime. Such speech does not deserve First Amendment protection….
Some courts have mistakenly used this exception to rationalize upholding statutes that criminalize speech…simply because their legislature passed a law criminalizing speech. The U.S. Supreme Court has a limited number of cases addressing this exception and in no way supports such a broad interpretation.
First, in Gibboni v. Imperial Storage and Ice Co.…The Supreme Court explained, “[i]It has rarely been suggested that the constitutional freedoms of speech and press extend their immunity to speech or writing that forms part of a violation of a valid criminal statute. Not breaking the law. Giboni The decision supports expanding this exception, allowing the Legislature to criminalize all speech.
back GiboniSupreme Court revisits exception USA.v. williams. There, the court considered a First Amendment challenge to a statute that criminalized the defendant’s proposal to distribute illegal child pornography.exist williamsthe court held that “[o]Persons involved in illegal transactions are expressly excluded from First Amendment protections.
Then, recently, in United States v. Hanson, the Supreme Court included speech in the criminal conduct exception while explaining that speech intended to cause specific unlawful conduct has no social value and is therefore not protected. again, Hansen By applying it to solicitations, consistent with the historical pattern of this exception another crime: Violation of immigration laws. All limited peremptory precedents applying this exception rely on one constant: the requirement that the speech be necessary for the commission of an entirely separate crime.
The country did not adequately explain its approach to [the stalking statute] can be viewed as a statute that criminalizes only speech that constitutes an offence.Rather, it emphasizes that the General Assembly includes words and actions within the definition policy of conduct. In doing so, the country seemed to conclude that speech became conduct only because the General Assembly defined it so, closing the investigation.
Some courts and commentators have recognized the difficulty of interpreting this exception so broadly because doing so requires circular reasoning. {See, for example, United States v. Matusevic (D. Del. 2015) (“[I]What’s important [the court] avoid interpreting Gibboni’s The exceptions are too broad. Under the broadest interpretation, if the government criminalizes any type of speech, then anyone who engages in that speech can be punished because the speech will automatically become part of the crime.This interpretation is clearly inconsistent with the First Amendment[.]”); You can also take a look Eugene Warlock, “Speech constitutes a criminal act” exception101 Cornell L. Rev. 981, 1036 (2016) (holding that application Giboni Harassment and stalking statutes allow speech to be criminalized based on its offensive nature to the recipient, when “speech intended to harass, offend or distress does not serve to cause or threaten another offence, as does abetting, aiding or abetting.”) .} For example, the U.S. Court of Appeals for the Eighth Circuit explains the pitfalls of such filings United States v. SriniavskyThe Eighth Circuit subsequently addressed the need to limit the exception as follows:
Congress may not define speech as a crime and then exclude it from First Amendment protection simply because the speech is an integral part of the speech Congress criminalized.To qualify as speech that constitutes a criminal offense, the speech must be part of a criminal act Another crime that does not involve protected speech”.
As the Eighth Circuit recognized, if this court accepted this interpretation of this enumerated category, the Legislature could make any type of speech illegal and supersede the First Amendment. This would be the antithesis of constitutional primacy over statutory law. It would allow mere statutes to swallow up the First Amendment.
exist Marshaud v.Boone, the District of Columbia Court of Appeals similarly rejected the argument that the District of Columbia’s stalking statute permits restrictions on speech “because it is an integral part of the criminal conduct (i.e., stalking).” There, the court described the argument as a “fatal circle,” stating, “[w]While it is true that the First Amendment does not protect speech that constitutes a criminal act, the speech must form an integral part of the criminal act another crime There are no words involved.
The state identified case law from several states that upheld application The basis for its statute is that the speech prohibited by the statute is indispensable to the commission of a crime.For example, in State v. Rabethe Maine Supreme Court reviewed the validity of Maine’s tracking statute based on counter clerk.this Rabe The court held that, based on the facts of that specific case, the defendant’s “conduct, rather than his words, constituted the ‘course of conduct’ for which he was convicted and caused the victim to suffer severe inconvenience and emotional distress.” The Maine court also held , some of the calls made by the defendant were to the victim. Rabe Not really words at all. Many of the phone calls were non-communicative, as the defendant repeatedly dialed, hung up, left for dead air, and breathed into the phone.this Rabe Although ostensibly a facial challenge, the decision came after a trial and more appropriately involved applied analysis.Decisions of some courts, such as the Maine Court Rabemistakenly blurring the difference.
The country also relies on State v. Hemingwaythe Wisconsin Court of Appeals held that because the defendant’s remarks were “accidental and demonstrated that he intended to engage in a course of conduct that he knew or should have known would instill in people a fear of violence.” [the victim,] Such tracking does not trigger First Amendment scrutiny or protections. Behavior. Rabewisconsin state court Hemingway Apply the facts of the individual case developed after trial while expressing its decision in a superficial manner. The authority cited by the State is unpersuasive because the exception does not properly allow the State Legislature unlimited license to criminalize speech by redefining speech as conduct….
Nonetheless, the Court concluded that the statute was not sufficiently overbroad relative to its legal scope to render the statute unconstitutionally overbroad. Furthermore, no applicable challenge was raised in this particular motion (and, judging from the facts alleged, I think such a challenge would likely fail):
In summary, elements of the State’s prosecution of Mr. Reeves may fall, in part, within the speech scope of the criminal conduct exception. {For example, the State charged Mr. Reeves with intimidation. If the speech is used to intimidate the alleged victim into not making a complaint against him or her, the application may fall within the criminal conduct exception speech. In turn, the offense may have formed part of what Mr Reeves alleged was stalking.
Therefore, the prosecution can proceed. But I think the court was absolutely right to reject the argument that a law criminalizing (for example) “communicating with another person…” three or more times “in a manner that would cause a reasonable person… to experience serious “Mental anguish or distress” is constitutional simply because such speech is an integral part of the criminal prohibition itself.
