Posting of fliers wasn’t protected speech, state appeals court rules

Monday, September 13, 1999

A man convicted of stalking for posting hundreds of fliers in his wife's neighborhood was not engaged in “constitutionally protected activity,” a Washington state appeals court has ruled.

James Petz was convicted in 1997 of felony stalking for posting fliers which offered a reward for “information and evidence” showing that his wife — from whom he had been separated since 1994 — “has committed adultery since she abandoned her husband.” At the time of the trial Petz and his wife were still married.

In 1996, a judge had issued a 10-year protective order preventing Petz from contacting his wife, who was identified in court papers only as “C.”

One day in June 1997, the wife discovered 75-80 fliers in her neighborhood. She testified that overall she removed more than 250 fliers from area telephone poles. On one of the fliers was a handwritten note: “This is part of a never-ending supply.”

Petz's wife also testified that he drove by her house several times. After she went to the police, Petz was arrested, charged and eventually convicted of felony stalking in 1997.

Washington's anti-stalking law prohibits someone from “intentionally and repeatedly” harassing another person. The prosecution contended that the posting of the fliers was proper evidence of intentional harassment.

However, Petz appealed his conviction, contending that his posting of the fliers was constitutionally protected. He cited U.S. Supreme Court cases saying that leafleting is a traditional, First Amendment-protected activity.

However, the Washington state appeals court in its Aug. 30 opinion in State v. Petz rejected Petz's First Amendment arguments, noting that he “was not prosecuted simply because he posted” fliers.

The court wrote: “Rather, he was prosecuted for engaging in conduct that intentionally and repeatedly harassed” his wife.

The Washington appeals court noted that “this case does not involve traditional First Amendment activities such as political protesting or newsgathering.”

“It is conceivable that a stalker or protester could, in the course of following another with a legitimate First Amendment purpose, provoke a reasonable but mistaken sense of fear in the person being followed,” the court wrote. “But the risk of such misunderstandings is small.”

The decision will not be appealed, says Petz's attorney, David Koch.

“The posting of fliers made up only one portion of his alleged acts of harassment,” Koch said. “In the big picture if the court had held that the posting of the fliers was constitutionally protected and could not be admitted into evidence, there was still other evidence to sustain the conviction.”