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Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”

State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity

The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.

In 2006 a jury convicted Maier of threatening a judge. In 2011, after he got out of prison, Maier sent two letters to 10 of the jurors from the 2006 trial, which led to him being charged with 10 counts of stalking for engaging in a course of conduct that would cause a reasonable person to “suffer serious emotional distress,” defined as feeling “terrified, intimidated, threatened, harassed, or tormented,” § 940.32(1)(d) and (2). (¶¶2-9, 23-24). The court of appeals holds the stalking statute is constitutional as applied to Maier under the First Amendment because the letters constituted a “true threat,” State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.

First, the court rejects the claim that speech causing “serious emotional harm,” as opposed to speech threatening to inflict bodily injury, is not sufficient to constitute a true threat:

¶29      In support of this argument, Maier relies on the Perkins court’s application of the true threat standard to the elements of the pertinent crime in Perkins, threatening a judge. The Perkins court explained:

Because the instructions did not define the first element [of threatening a judge], namely, whether the defendant “threatened to cause bodily harm,” the jury was not instructed that it had to apply an objective test in the first element to determine whether the defendant had “threatened to cause bodily harm,” that is, that a speaker would reasonably foresee that a listener would reasonably interpret the statement to be a serious expression of a purpose to inflict bodily harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech.

Perkins, 243 Wis. 2d 141, ¶37 (emphasis added). We are not persuaded that the Perkins court’s application of the true threat standard to the threatening a judge statute demonstrates that a true threat requires a threat to inflict bodily harm. Elsewhere in its opinion, the Perkins court explained:

This test for a “true threat” may, of course, need modification to fit the particular statute that criminalizes threatening speech. In this case, for example, the harm threatened is bodily harm. Other statutes may criminalize speech that threatens different harms.

Id., ¶30.

The court also holds that the jury instructions in this case properly stated the Perkins standard:

¶24      Given that the “course of conduct” in this case consists of Maier’s letters, the second element in the instructions told the jury to find Maier guilty only if Maier’s letters would have caused a reasonable person in the position of the 2006 jurors to experience serious emotional distress. And, the fourth element in the instructions told the jury to find Maier guilty only if Maier knew or should have known that his letters would have that effect. In other words, … the instruction essentially informed the jury that it must find that Maier’s letters contained a true threat—under the Perkins objective standard—in order to find Maier guilty.

In a fact-specific discussions, the court rejects Maier’s claims that the evidence was insufficient to prove a true threat because it is unreasonable to interpret his two letters as a threat (¶¶3-4, 33-42) and that trial counsel was ineffective in various ways, primarily because any deficient performance was not prejudicial (¶¶43-58). Finally, the court holds Maier’s sentences (consisting of consecutive prison time on each of the six counts for which he was convicted) are not harsh and excessive. (¶¶63-67).

Before reaching the substance of the true threat issue, the court first addresses whether Maier’s as-applied challenge is barred under State v. Hemmingway, 2012 WI App 133, 345 Wis. 2d 297, 825 N.W.2d 303. As explained here, Hemmingway involved a facial challenge to the stalking statute, and the court doubts the case can be read as broadly as the state claims; but it doesn’t decide either way, and assumes without deciding that § 940.32 cannot be constitutionally applied to Maier unless his letters contained a “true threat.” (¶15).

The court also addresses whether the true threat standard is objective or, as Maier argues, also requires the speaker have a subjective intent to threaten a particular person or group of persons. Maier’s argument cites Virginia v. Black, 538 U.S. 343 (2003), but most jurisdictions that have considered the question hold Black does not establish that a speaker must have such subjective intent. See United States v. Elonis, 730 F3.d 321, 330 (3rd Cir. 2013). The court of appeals follows the crowd and concludes that the “true threat” standard is objective. (¶¶17-21). Other cases support Maier’s position, e.g., United States v. Cassell, 408 F.3d 622, 631 (9th Cir. 2005), and the Supreme Court itself hasn’t weighed in, so to that extent at least the issue remains arguable.

UPDATE (5/20/14): The Supreme Court may weigh in, as it is currently considering a cert. petition in Elonis. You can follow the case via its Scotusblog page.

FURTHER UPDATE (6/1/15): The Supreme Court’s decision in Elonis dodged the First Amendment issue, so it remains arguable. Meier’s petition for review was being held in abeyance pending Elonis, so stay tuned to see whether the Wisconsin Supreme Court decides to accept this case and grapple with whether the First Amendment requires an intent-to-threaten element.

YET MORE UPDATE (10/23/15): Meier’s petition for review was denied, so the issue won’t be resolved in Wisconsin anytime soon. For a recent scholarly discussion of Elonis, see here.

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