U.S. Supreme Court Changes Stalking Laws – Ruling Puts First Amendment Speech Rights Above Victim Safety

Sue Ryan, Executive Director, DCADV

On June 28th, the Supreme Court overturned a stalking conviction because they ruled that it violated the stalker’s First Amendment speech rights.  This ruling will have a profound impact on the crime of stalking and make it more difficult to prosecute. 

The Supreme Court reviewed a Colorado criminal conviction of a stalker who had sent hundreds of Facebook messages that the victim described as “creepy.”  The messages became more threatening, including communication that “she should die.” The stalking victim suffered fear and emotional distress; she moved her residence and started carrying a gun because she was afraid for her safety.  The stalker was charged under Colorado’s criminal stalking statute, was found guilty, and sentenced to four years.  During the trial and in his appeal, the stalker claimed that he never intended harm and the conviction violated his First Amendment right to speech.  The U.S. Supreme Court agreed, ruling that the Colorado statute violated his First Amendment rights of speech. 

I worked previously at the Stalking Resource Center and have a good understanding of stalking laws.  Most states, including Delaware, have adopted the model code which provides that stalking is a pattern of behavior, targeted at a specific individual that would cause a reasonable person to be afraid for their safety or to suffer psychological harm.  The reasonable person is an objective standard, which means, given the context of the behavior, would any reasonable person have fear? 

The Supreme Court threw out this objective standard.  Now, in stalking cases, prosecutors will need to show “recklessness” that is, the stalker is aware that what they are doing/communicating is causing fear and they do it anyway.  The burden will shift to victims to show that they have ‘warned’ the stalker – and thus had contact with the offender – to stop their behavior.  Offenders can continue to argue that they were unaware that they were causing harm; claiming that they never received the victim’s message, the communication was ‘romantic’ and ‘harmless.’  Prosecutors will need to ‘get into the mind of the stalker’ to show awareness.  This new recklessness standard will make stalking prosecutions more difficult.

Stalking is a contextual crime and can involve many tactics including personally following, tracking someone using GPS devices, making relentless phone calls or text messages, sending unwanted gifts, contacting through social media, damaging reputations, making threats, committing vandalism, and more.  Stalking continues for months, even years.  Often stalkers will have a ‘romantic fantasy’ and send ‘love notes’ that they claim are not threatening, but, in fact, are very frightening to victims because they are unwanted and relentless.  Stalking victims experience trauma, sleepless nights, anxiety about leaving their homes, and fear for their lives.  The relentless contact that stalkers engage in is overwhelming and frightening.  Stalking often escalates to violent behaviors; in most IPV murder cases, there was stalking.   

Victims of stalking are encouraged to reach out for help.  In Delaware, they can contact one of the DV Hotlines; the numbers are listed on DCADV’s website.  Stalking victims are also encouraged to keep a ‘record’ of the tactics that stalkers are engaging in; this record may become important when working with law enforcement and prosecutors because it will show the pattern of unwanted contact and behavior. 

Stalking is an overwhelming crime that has a long-term impact on the victim’s physical and emotional safety and well-being.  It can be a challenging crime to prosecute because of the various tactics engaged in by stalkers.  It will be even more difficult to prosecute because of the Supreme Court’s ruling.