In Counterman the Supreme Court looked at a portion of Colorado’s Stalking statute, which made it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress,” Colo. Rev. Stat. §18–3–602(1)(c), and treated it as a statute aimed at true threats.
I have no major objection to true threats being unprotected speech. We shouldn’t go around causing fear in unconsenting others. An imminent enough threat of violence justifies a violent response, and if the role of the state is to prevent us from taking self-help measures (whether legitimate or not, likely to cause a spiral of violence) against transgressors then one area in which the state can legitimately use its own violence is the deterrence of threats of imminent violence.
If a stalking statute addressed only true threats, I would agree that not only does it pass constitutional muster, but it ought to.
For example:
A person commits a crime if he or she, with the intent to place another person in reasonable fear of unlawful serious bodily injury or death, engages in conduct, including speech, that places that person in reasonable fear of unlawful serious bodily injury or death.
One problem with the Colorado statute, however—and with every other stalking and harassment statute I know of—is that the emotional harm that triggers liability is not limited to “fear of injury.”
Under the Colorado statute, for example, as well as the federal stalking statute, a person could be prosecuted for causing another person “substantial emotional distress.” What is “substantial emotional distress”? Who knows! Being extremely embarrassed? Being very offended? Being quite annoyed?
The phrase is vague, and in the context of content-based restrictions on speech, vagueness is almost always overbreadth. That is, if the speech is described in vague terms, the problem is not that a speaker cannot know whether his speech can be prosecuted; the problem is that it can be prosecuted, and where speech can be prosecuted, we don't trust the state not to prosecute it.
The Texas stalking statute forbids engaging in conduct, on more than one occastion, that
the actor knows the other person will regard as threatening bodily injury or death;
causes the other person to be placed in fear of bodily injury or death; and
would cause a reasonable person to fear bodily injury or death.
This is a third-degree felony, with a range of punishment from probation to ten years in prison. Okay, fine. But the Texas Stalking statute also forbids engaging in conduct, on more than one occasion, that
constitutes an offense under section 42.07 of the Texas Penal Code (Harassment) (among other things, sending repeated electronic communications in a manner reasonably likely to annoy, embarrass, or offend another);
causes the other person to feel annoyed, embarrassed, or offended; and
would cause a reasonable person to feel annoyed, embarrassed or offended.
This is also a third-degree felony, with a range of punishment up to ten years in prison.
While I would have no objection to a true-threats stalking statute, I have yet to see such a statute become law. Proponents of statutes that restrict harmful speech overreach for two reasons. First, because their idea of “harmful speech” that the government may punish is much broader than just speech that otherwise would result in legitimate physical violence; and second, because narrowing a content-based restriction (to cover only unprotected speech) makes it hard to prove a violation.
Rather than leave some unprotected speech unpunished, the advocates of stalking statutes support restrictions aimed at protected speech as well.
In the face of such overreach, as a man of good will who thinks that serious threats of violence (including implicit threats conveyed through multiple communications) ought to be punishable, should I advocate for that position?