Wis. appeals court upholds anti-stalking law

Monday, November 12, 2012

Wisconsin’s anti-stalking law is not too broad and does not violate the First Amendment, a state appeals court has ruled.

“The First Amendment does not protect intentional conduct designed to cause serious emotional distress or fear of bodily harm or death in a targeted victim,” the Court of Appeals of Wisconsin, District 2, ruled Nov. 7 in State v. Hemmingway.

The intentional conduct in question involved text messages, phone calls and e-mails sent by Gary M. Hemmingway to his ex-wife, Rebecca. The criminal complaint alleged Hemmingway said he would “blow his brains out” and that “he would love to see someone holding a gun to her and for her to be begging for her life.”

Gary Hemmingway faced charges for violated the state’s anti-stalking law, which prohibits individuals from engaging in a “course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress.”

Hemmingway contended the law prohibited protected speech and was too broad. A trial court agreed and granted a motion to dismiss. The state successfully appealed to the Wisconsin Court of Appeals, which reversed the lower court.

The appeals court referred to Hemmingway’s messages in various media as “intimidating conduct” and “stalking conduct” rather than speech.

“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,” the court wrote. “Such stalking conduct does not trigger First Amendment protection.”

The appeals court cited decisions from numerous other states that had rejected similar challenges. It cited with favor an Illinois decision that concluded: “Where speech is an integral part of unlawful conduct, it has no constitutional value.”

See also: Cyberstalking

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