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Stalking, § 940.32(2m)(a): Overbreadth Challenge

State v. Gary M. Hemmingway, 2012 WI App 133; case activity

Stalking,  § 940.32(2m)(a), which previously survived overbreadth and vagueness challenges based on rights to travel and equal protection, State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), now withstands a free-speech challenge: The statute isn’t a facially overbroad regulation of protected speech, in that the first amendment doesn’t immunize intentional conduct aimed at causing serious distress or fear of bodily harm. State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (child enticement statute, § 948.07, upheld under first amendment as criminalizing conduct not speech, though offense is facilitated “by means of language”), discussed and applied.

¶16      Like the communications in Robins, the actions prohibited by Wis. Stat. § 940.32 are conduct, not speech.  Like the child enticer in Robins, the stalker may use language in his or her commission of the proscribed acts.  The use of the language is not against the law.  What is against the law is the intentional course of conduct to inflict harm, which the language shows.  In Robins, internet communications were evidence of Robins’ intent and scheme to lure a child into a secluded place, contrary to the child enticement statute.  Robins, 253 Wis. 2d 298, ¶43.  In this case, the communications associated with the acts of contacting the victim by telephone and sending messages and e-mails were evidence of Hemmingway’s intent to cause Rebecca to fear bodily injury or death, contrary to the stalking statute.  Sec. 940.32(2).  Such intimidating conduct serves no legitimate purpose and merits no First Amendment protection.

     There is no appreciable amount of protected speech where the speaker both intends to cause intimidation, abuse, damage to property, or fear of physical harm or property damage, and does in fact cause one of these alternatives.

O’Brien v. Borowski, 961 N.E.2d 547, 558 (Mass. 2012).  Hemmingway’s speech is incidental to and evidence of his intent to engage in a course of conduct that he knew or should have known would instill fear of violence in Rebecca.  Such stalking conduct does not trigger First Amendment scrutiny or protection.

¶17      Numerous other jurisdictions have upheld stalking statutes like Wisconsin’s.[4] ….

¶18      The stalking statute, Wis. Stat. § 940.32, is not overbroad under the First Amendment.  Although a stalker might use language in committing the crime, the core of the statute is the stalker’s intent to engage in conduct that he or she knows or should know will cause fear in the victim and does cause the victim’s actual distress or fear.  Because the language used by Hemmingway in stalking Rebecca was merely evidence of his crime and not prohibited in and of itself, we reverse the circuit court’s dismissal of the complaint and remand for further proceedings consistent with this opinion.

Elements of stalking discussed, ¶¶5-9 (“In sum, to obtain a stalking conviction, the State must prove that Hemmingway intentionally engaged in a course of conduct directed at his ex-wife that he knows (or should know) will instill fear in her, does instill fear in her, and would instill such fear in a reasonable person under similar circumstances.”) Multi-step methodology for overbreadth challenges recited:

¶11      A statute may be challenged on its face as overbroad even by a party whose conduct is clearly unprotected if it infringes on a substantial amount of speech or expressive conduct protected by the First Amendment.  Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002); Robert T., 307 Wis. 2d 488, ¶7.  Finding a statute overbroad is “strong medicine” and should not be done lightly.  Robert T., 307 Wis. 2d 488, ¶7 (citation omitted).  In order for a statute to be invalidated, the overbreadth must be substantial, not only in an absolute sense, but as judged in relation to the statute’s legitimate sweep.  United States v. Williams, 553 U.S. 285, 292 (2008).  The party challenging a statute as overbroad has the burden to show substantial overbreadth.  Virginia v. Hicks, 539 U.S. 113, 122 (2003).

¶12      There are several steps in the overbreadth analysis.  First, as a threshold matter, we must determine if the First Amendment applies to the case, so as to trigger constitutional scrutiny.  State v. Baron, 2009 WI 58, ¶16, 318 Wis. 2d 60, 769 N.W.2d 34; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 n.5 (1984).  The challenger has the initial burden of showing that the statute regulates protected speech, thus implicating the First Amendment.  State v. Mitchell, 163 Wis. 2d 652, 663-64, 473 N.W.2d 1 (Ct. App. 1991), rev’d, 169 Wis. 2d 153, 485 N.W.2d 807 (1992), rev’d, Wisconsin v. Mitchell, 508 U.S. 476 (1993), Ct. App. decision aff’d, 178 Wis. 2d 597, 598, 504 N.W.2d 610 (1993); Clark, 468 U.S. at 295 n.5.  If the subject matter of the statute is conduct, the First Amendment does not come into play.  Baron, 318 Wis. 2d 60, ¶14; Mitchell, 163 Wis. 2d at 664.  The First Amendment does not protect an illegal course of conduct “merely because the conduct was in part initiated, evidenced, or carried out by means of language.”  State v. Robins, 2002 WI 65, ¶42, 253 Wis. 2d 298, 646 N.W.2d 287 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).  Finally, only if the statute substantially prohibits protected speech, we analyze the statute’s sweep under strict or intermediate scrutiny, depending on whether the regulation is content based or content neutral.  Baron, 318 Wis. 2d 60, ¶31.

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