The First Amendment Threat to Public Health

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The District II Wisconsin Court of Appeals did not agree with the circuit court’s ruling that Wisconsin Statute §940.32 was a facially overbroad regulation of protected speech in violation of Gary Hemmingway’s First Amendment rights. As reported by the Wisconsin State Bar, Hemmingway was found guilty of stalking his ex-wife, Rebecca, after sending her intimidating text messages, phone calls, and e-mails. Excerpts of the communications between Hemmingway and Rebecca include him telling her “that he would love to see someone holding a gun to her and for her to be begging for her life.” He also told her that “the only way she could feel his pain would be if both her sons died at the same time.” These and other threats, coupled with Hemmingway’s prior charges of aggravated battery and negligent use of a dangerous weapon, caused Rebecca to fear for her and her sons’ lives and suffer serious emotional harm.

Wisconsin’s stalking statute reads in part: "(2) Whoever meets all of the following criteria is guilty of a Class I felony:

  1. The actor intentionally engages 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 or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
  2. The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
  3. The actor’s acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household."

Therefore, the defendant must intend that his conduct will cause the plaintiff to fear bodily injury or suffer serious emotional distress and the plaintiff must actually endure these harms. Like other criminal offenses that require proof of scienter, the defendant’s words may be used as circumstantial evidence to prove his intent. However, the speech is not what the statute attempts to regulate.

In a First Amendment overbreadth charge, the plaintiff must first show that the statute regulates protected speech and not conduct. If this prong is satisfied, the statute is analyzed under strict or intermediate scrutiny, depending on whether the regulation is content based or content neutral. Here, the court concluded that Wisconsin’s stalking statute criminalizes the intentional course of conduct to inflict harm and not the speech incident to this conduct.

In a similar case, State v. Robins (PDF), dealing with speech incident to a charge of child enticement, the Wisconsin Supreme Court ruled that because “an act . . . is initiated or carried out in part by means of language does not make the . . . statute susceptible of First Amendment scrutiny.” The Court of Appeals agreed. Gary Hemmingway’s crime was intending to cause his ex-wife to fear bodily injury or death. “While the offense of stalking does contain an element of speech, this speech does not fall within the protection of the First Amendment.” People v. Bailey, 657 N.E.2d 953, 961-62 (Ill. 1995).


Posted by Alexandria N. Bryant on Sun. February 10, 2013 8:27 AM
Categories: Public Health

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