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.”