Wisconsin Appeals Court Downs First Amendment Challenge to Stalking Statute

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 8, 2012 – Gary Hemmingway, charged with stalking his ex-wife through threatening and disturbing text, email and voice messages, said the state’s stalking statute violated his right to free speech, and a circuit court agreed. However, a state appeals court recently reversed.

Under Wis. Stat. section 940.32, any individual who engages in a “course of conduct” that would cause a reasonable person to suffer serious emotional distress or to fear serious bodily injury or death to the person or a member or his or her family is guilty of a Class I felony.

If the stalker has been previously convicted of a violent crime, the act becomes a Class H felony, punishable by up to six years in prison. Hemmingway was previously convicted of violent crimes, including substantial battery. Thus, the state charged him with a Class H felony.

The criminal complaint alleged that Hemmingway sent his ex-wife Rebecca disturbing communications, including one where he said that he would “love to see someone holding a gun to her head and for her to be begging for her life.”

However, Hemmingway moved to dismiss on the ground that his communications were protected speech under the First Amendment of the U.S. Constitution. Specifically, he argued that Wisconsin’s stalking statute is an overbroad restriction on otherwise legal activity.

The Waukesha County Circuit Court agreed with Hemmingway’s argument and dismissed the case. But in State v. Hemmingway, 2011AP2372-CR (Nov. 7, 2012), the District II Wisconsin Court of Appeals reversed, concluding that Hemmingway’s communications were unlawful.

The speech was “incidental to and evidence of his intent to engage in a course of conduct that he knew or should have known would instill fear of violence in Rebecca,” Judge Lisa Neubauer wrote. “Such stalking conduct does not trigger First Amendment scrutiny or protection.”

The three-judge panel highlighted other cases upholding state laws – including Wisconsin’s child enticement and hate crime laws – that punish speech as incidental to a criminal course of conduct, noting the substantial state interest in protecting citizens from violence.

“The use of the language is not against the law,” Judge Neubauer wrote. “What is against the law is the intentional course of conduct to inflict harm, which the language shows.”