Kansas high court upholds state’s anti-stalking law

Wednesday, December 13, 2000

Kansas’ anti-stalking statute does not violate the First
Amendment, the state Supreme Court has ruled, affirming the conviction of a man
who repeatedly contacted and followed his estranged wife.

The district attorney’s office filed charges against Jon L.
Whitesell in July 1997 for stalking his wife Julie. The couple had a troubled
past with Julie filing several protection from abuse orders against her

The charges accused Whitesell of engaging in a course of conduct
designed to harass and threaten his wife, including:

Threatening her over the phone.

Sending her a Bible in the mail, along with a copy of the
Kansas adultery statute.

Driving up and down the street on which she lived.

Parking six houses down and looking at her house with a pair
of binoculars.

A trial court convicted Whitesell of violating the Kansas stalking
law, which provides in part: “Stalking is an intentional, malicious and
repeated following or harassment of another person and making a credible threat
with the intent to place such person in reasonable fear for such person’s

Whitesell appealed his conviction to the Kansas Supreme Court. Among
his arguments, he contended that the state law was both vague and

On Dec. 8, the high court affirmed Whitesell’s conviction and
rejected his constitutional arguments in State of
Kansas v. Whitesell

The court quickly rejected the vagueness claim, noting that several of
its recent decisions upheld the stalking law from similar contentions.

The high court then focused its attention on the overbreadth

“A criminal statute should not infringe upon the First Amendment
in an unconstitutional manner,” the court wrote. “The First
Amendment, however, is not an impenetrable shield which protects any speech or
conduct whatsoever, with disregard to its harm and effect. Despite our First
Amendment rights, we are not free to harm others under the guise of free

The Kansas high court also noted that “the overwhelming majority
of courts” that had examined similar statutes had ruled them

Whitesell also argued that his conviction was tainted because the
trial judge refused to give the following instruction on his First Amendment

<blockquote>In considering whether the state has proved a
‘course of conduct,’ you shall not consider the contents of the Bible that Jon
Whitesell allegedly sent to Julie Whitesell or the content of the Kansas
Statute on Adultery which Jon Whitesell allegedly sent to Julie Whitesell, as
these are both constitutionally protected free speech and are excluded from the
definition of ‘course of conduct.’</blockquote>

The Kansas high court rejected this claim, writing that Whitesell
“had no First Amendment right to express speech and conduct in a way
which was violative of the privacy rights of another.”

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