Federal Judge Issues Major Free Speech Ruling

After an Illinois man’s stalking conviction was appealed, Illinois’ definitions for stalking were struck down because it places a “content-based restriction” on speech that doesn’t threaten violence, but would merely cause a reasonable person “emotional distress.”

The Washington Post reports:

Illinois “stalking” and “cyber-stalking” statutes criminalize (among other things),

  1. “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
  2. including “communicat[ing] to or about” a person,
  3. when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
  4. “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”

The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”

On November 30th, the Illinois Supreme Court struck down these definitions of stalking. Under these definitions, speech isn’t defined as unlawful for threatening criminal activity. Rather the speech itself is criminal, simply for causing emotional distress — which is clearly unconstitutional.

The defendant in the appealed case was originally sentenced to six years in prison for stalking HR reps following a job rejection.

The Washington Post continues:

The proscription against “communicat[ions] to or about” a person that negligently would cause a reasonable person to suffer emotional distress criminalizes certain types of speech based on the impact that the communication has on the recipient. Under the relevant statutory language, communications that are pleasing to the recipient due to their nature or substance are not prohibited, but communications that the speaker “knows or should know” are distressing due to their nature or substance are prohibited. Therefore, it is clear that the challenged statutory provision must be considered a content-based restriction because it cannot be justified without reference to the content of the prohibited communications […]

Although … subsection (a) prohibits a “course of conduct,” each of the actions identified in that subsection stand alone as actions that can form the basis of the course of conduct. Among the particularly specified actions are “communicat[ions] to or about” a person that the defendant knows or should know would cause a reasonable person to suffer emotional distress. The communications need not be accompanied by any other action to form the predicate for a prohibited course of conduct. As subsection (a) is written, two or more such communications are sufficient to form a course of conduct and warrant prosecution under subsection (a)
[…]

In light of the fact that a course of conduct can be premised exclusively on two communications to or about a person, this aspect of subsection (a) is a direct limitation on speech that does not require any relationship — integral or otherwise — to unlawful conduct. Under subsection (a), the speech is the criminal act […]

For example, subsection (a) prohibits a person from attending town meetings at which he or she repeatedly complains about pollution caused by a local business owner and advocates for a boycott of the business. Such a person could be prosecuted under subsection (a) if he or she persists in complaining after being told to stop by the owner of the business and the person knows or should know that the complaints will cause the business owner to suffer emotional distress due to the economic impact of a possible boycott.

There was no clarification in Illinois’s definition of stalking that would describe what speech could be considered stalking and what shouldn’t.

Frankly, a “reasonable person standard” is lazy on the part of lawmakers. It allows for arbitrary interpretations of the provisions, and ironically asks reasonable people to jump to conclusions.

Exactly what sort of speech, that doesn’t threaten violence, would cause a reasonable person alarm in the first place?

Can any “emotionally distressing” speech result in six years in prison?

The Illinois Supreme Court concluded:

A case-by-case discretionary decision by law enforcement officers and prosecutors does not solve the problem of the chilling effect on innocent speakers who fear prosecution based on negligently made distressing communications to or about a person. We conclude that [the exemption] is insufficient to remediate the extreme overbreadth of subsection (a) and cannot by itself make the terms of that provision constitutional.

Illinois can no longer squeeze its way around the First Amendment through “stalking” charges.