In a recent ruling in State v. Reeves, Judge Jeffrey Clark of the Delaware Superior Court evaluated the state’s stalking law, which defines stalking as threatening or communicating to another person on multiple occasions in a way that would cause fear or mental distress.
The court found that the statute could be unconstitutional in certain situations, such as a doctor informing a patient about potential risks of a life-saving operation, or a customer posting complaints about a restaurant on social media that lead to mental anguish for the owner. The statute could also criminalize posting critical comments on social media that cause significant distress to another person.
The court also addressed the state’s argument that the law was constitutional because it only applied to speech integral to criminal conduct. The court disagreed, stating that this exception is limited to speech directly related to criminal activities, such as bribery or extortion, and does not extend to all types of speech labeled as criminal by the legislature.
The court cited previous Supreme Court cases, such as Giboney v. Empire Storage & Ice Co., United States v. Williams, and U.S. v. Hansen, which all emphasized that speech integral to criminal conduct must be necessary for the commission of a separate crime. The court cautioned against interpreting this exception too broadly, as it could lead to unconstitutional restrictions on free speech.
In the case of Boone, the District of Columbia Court of Appeals rejected the argument that the stalking statute in the District of Columbia could curtail speech because it was integral to the criminal act of stalking. The court deemed this argument as “fatally circular” and emphasized that while the First Amendment does not protect speech that is integral to criminal conduct, the speech must be integral to conduct that constitutes another offense not involving speech.
Several states have upheld the application of their statutes by considering speech integral to criminal conduct. For example, in State v. Labbe, the Supreme Court of Maine found that the defendant’s actions, not his words, constituted the course of conduct for which he was convicted under the stalking statute. The court also noted that some of the defendant’s phone calls were non-communicative in nature. The decision in Labbe, although presented as a facial challenge, involved an as-applied analysis after trial.
Similarly, in State v. Hemmingway, the Court of Appeals of Wisconsin held that speech incidental to a defendant’s intent to engage in conduct causing fear of violence does not trigger First Amendment scrutiny. The court upheld the state legislature’s override of First Amendment protection based on the criminal labeling of speech.
The court concluded that the statute’s overbreadth was not substantial enough to render it unconstitutionally overbroad. Additionally, no as-applied challenge was raised in the motion, indicating that such a challenge may not succeed based on the alleged facts.
Overall, the prosecution of Mr. Reeves may involve speech integral to criminal conduct, such as in cases of intimidation. This may fall within the exception for speech integral to criminal conduct. Despite this, the court rightly rejected the argument that a law criminalizing speech simply because it is integral to the criminal prohibition itself is constitutional.
