Washington’s highest court upholds state stalking law

Tuesday, June 23, 1998

The Washington Supreme Court has ruled 7-2 that the state's 1992 stalking law does not violate First Amendment free-association rights.

In State v. Yates and State v. Lee, the court last week affirmed the stalking convictions of two men who each allegedly engaged in a repeated pattern of following a woman.

At the time the men were convicted, the law–which was subsequently amended in 1994–defined stalking as intentionally and repeatedly following another person to that person's home, school, place of employment, business or any other location. In order to constitute stalking, the person being followed must be “intimidated, harassed or placed in fear that the stalker intends to injure” the person, and such fear must be “reasonable.”

The defendants contended the law was overbroad because it criminalized conduct protected by the Constitution and the First Amendment, conduct such as news gathering or political protesting.

They also asserted the law was vague because it failed to adequately define exactly what conduct is prohibited. However, the court ruled that “the fact that some terms in a statute are not defined does not mean the enactment is unconstitutionally vague.”

A majority on the Washington Supreme Court rejected both claims. The court ruled that “freedom of movement may not be used to impair the individual rights of others.” According to the court, “the statute is a reasonable exercise of the police powers in protecting privacy interests of a segment of society from invasive oppressive behavior and harmful conduct. One person's freedom of movement gives way to another person's freedom not to be disturbed.”

Two dissenting judges argued that the majority's opinion seemed to say that citizens have a constitutional right to privacy from other citizens. According to the dissent, this analysis represents an “unsupported and radical departure from established constitutional doctrine.”

The dissent said that the right to privacy only protects citizens from the invasive actions of government, not from other citizens, concluding: “The majority's analysis leads to an unprecedented result whereby private citizens could sue other private citizens for constitutional violations.”

Gene Grantham, who filed a friend-of-the-court brief on behalf of the American Civil Liberties Union, told said: “It is very hard to draft a law that distinguishes between dangerous conduct and merely unusual behavior. The courts should require an actual threat or assaultive conduct before imposing criminal penalties. To draw the line short of some overt act like that infringes on the freedom of association.”

Neil Fox, a Seattle public defender who represented defendant Yates, said: “There are a host of constitutional problems with the state stalking law, including vagueness and overbreadth problems not addressed by the [state] Supreme Court. I do not have a problem with a narrowly tailored stalking law, but the Washington law is one of the broadest in the country.”

Fox said he was still “evaluating” whether to file an appeal to the U.S. Supreme Court.