First Amendment
and Other Legal Considerations
All 50 States, the District of Columbia, and the federal government have
passed laws that criminalize stalking to address the serious harms and dangers that
result from stalking, including the fear of violence and loss of privacy and
control suffered by the victim. In addition to the direct harms caused by
stalking, stalking is also frequently a precursor to physical violence against
the victim. By its nature, however, stalking is not a crime that can be defined
with a particularized, discrete set of acts. Frequently stalking consists of a
course of conduct that may involve a broad range of harassing, intimidating,
and threatening behavior directed at a victim. The conduct can be as varied as
the stalker's imagination and ability to take actions that harass, threaten,
and force himself or herself into the life and consciousness of the victim. As
new technologies become available, stalkers adapt those technologies to new
ways of stalking victims, as is the case with the Internet and
cyberstalking.
As a result of the breadth of conduct potentially involved in stalking,
anti-stalking statutes need to be relatively broad to be effective. At the same
time, however, because of that breadth and because stalking can involve
expressive conduct and speech, anti-stalking statutes must be carefully
formulated and enforced so as not to impinge upon speech that is protected by
the First Amendment. This is particularly true with regard to cyberstalking
laws, which frequently will involve speech over the Internet. The Internet,
moreover, has been recognized as an important tool for protected speech
activities. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844,
850-52, 870 (1997); American Civil Liberties Union v. Reno, 31 F.Supp.2d 473,
476, 493 (E.D. Pa. 1999).
The fact that stalking behavior (including cyberstalking) may implicate
important issues of free speech, however, does not eliminate the significant public
interest in its criminal regulation or suggest that any criminal regulation
would be prohibited by the freedom of speech guarantees of the First Amendment.
The First Amendment does not prohibit any and all regulation that may involve
or have an impact on speech. Of particular relevance to stalking, the Supreme
Court has recognized that governments may criminalize true threats without
violating the First Amendment. See, e.g., Watts v. United States, 394 U.S. 705
(1969) (per curiam). As discussed in the Introduction of this report, stalking
(as well as cyberstalking) generally involves conduct reasonably understood to
constitute a threat of violence, and such threats may be criminalized
consistent with the First Amendment.
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