People v. Relerford, 2017 IL 121094 (November). Episode 425 (Duration 7:38)

Just a small part of the Illinois stalking statute was declared unconstitutional.

See Our Discussion Of The Lower Opinion

See Episode 197 - Illinois Stalking and Cyberstalking Declared Unconstitutional 

The appellate court vacated all of defendant’s convictions based on its determination that the terms of subsection (a) of the stalking and cyberstalking statutes violate due process. In the appellate court’s view, the United States Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), compelled invalidation of both statutes on due process grounds because the relevant provisions lack a mental state requirement.

The Elonis Decision

In Elonis, the Supreme Court addressed the question of which mental state would be inferred to apply in a federal criminal statute that does not specify a mens rea requirement. 

The Court recognized that, because criminal offenses generally require proof of a “guilty mind,” courts typically interpret a criminal statute to require a criminal mens rea, even if the statute fails to include an applicable scienter requirement. The Court recognized that, because criminal offenses generally require proof of a “guilty mind,” courts typically interpret a criminal statute to require a criminal mens rea, even if the statute fails to include an applicable scienter requirement.

But Elonis was not a due process case, and the Supreme Court did not engage in any due process analysis. Rather, Elonis merely decided a question of statutory interpretation and determined that, where the subject criminal statute was silent as to mens rea, a mental state of intent or knowledge would suffice.

On several occasions, this court has similarly inferred a requisite mental state where the statute is silent as to mens rea.

The Stalking Statute

The current version of subsection (a) of the stalking statute provides as follows:

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

720 ILCS 5/12-7.3(a)(1), (a)(2) (West 2012).

The phrase “course of conduct” is defined in subsection (c) as:

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.”

720 ILCS 5/12-7.3(c)(1) (West 2012).

In addition, subsection (c) defines “emotional distress” as:

“significant mental suffering, anxiety or alarm.” 720 ILCS 5/12-7.3(c)(3) (West 2012).

The phrase “reasonable person” is defined as:

“a person in the victim’s situation.”

720 ILCS 5/12-7.3(c)(8) (West 2012).

Subsection (c) defines “non-consensual contact” as:

“any contact with the victim that is initiated or continued without the victim’s consent.”

720 ILCS 5/12-7.3(c)(6) (West 2012).

Under that provision, “non-consensual contact” includes:

“being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim.”

Defendant's Issue

Defendant contends that the new provisions, criminalizing communications to or about a person that negligently would cause a reasonable person to suffer emotional distress, violate the first amendment. U.S. Const., amend.

The first amendment, which applies to the states through the fourteenth amendment, precludes the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I, XIV. Under this amendment, a government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Emotional Distress

Of relevance here, the proscription against “communicat[ions] to or about” a person that negligently would cause a reasonable person to suffer emotional distress criminalizes certain types of speech based on the impact that the communication has on the recipient.

Under the relevant statutory language, communications that are pleasing to the recipient due to their nature or substance are not prohibited, but communications that the speaker “knows or should know” are distressing due to their nature or substance are prohibited. Therefore, it is clear that the challenged statutory provision must be considered a content-based restriction because it cannot be justified without reference to the content of the prohibited communications.

State's Position

The State argues, however, that the communications prohibited in subsection (a) do not unconstitutionally encroach on the right to speech because they are categorically unprotected by the first amendment.

In particular, the State claims that “communicat[ions] to or about” a person are exempt from first amendment protection because they fall within either the exception for true threats or the exception applicable to speech that is integral to criminal conduct. 

What's A True Threat?

With regard to the exception for true threats, the Supreme Court has held that a communication qualifies as a true threat if it contains a “serious expression of an intent to commit an act of unlawful violence.”

The State offers no cogent argument as to how a communication to or about a person that negligently would cause a reasonable person to suffer emotional distress fits into the established jurisprudence on true threats.

Moreover, it is unclear whether the true threat exemption from the first amendment would apply to a statement made with innocent intent but which negligently conveys a message that a reasonable person would perceive to be threatening.

Analysis

Here, subsection (a) does not require that the prohibited communications be in furtherance of an unlawful purpose.

As such, there is no “proximate link” between the restricted communications and some other criminal act. In light of the fact that a course of conduct can be premised exclusively on two communications to or about a person, this aspect of subsection (a) is a direct limitation on speech that does not require any relationship—integral or otherwise—to unlawful conduct.

Under subsection (a), the speech is the criminal act.

A statute is overbroad on its face if it prohibits constitutionally protected activity as well as activity that may be prohibited without offending constitutional rights. Consequently, the overbreadth doctrine permits a party to challenge a statute as a facial violation of the first amendment, even if that party’s conduct would not fall within the amendment’s protection.

Given its limited application, the Supreme Court has observed that the overbreadth doctrine should be applied “only as a last resort” and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction.

Indeed, even core political speech could be prosecuted under subsection (a) if the speaker knows or should know that the substance of his or her comments would cause a reasonable person to suffer emotional distress. Nothing in the language of subsection (a) explicitly differentiates between distressing communications that are subject to prosecution and those that are not—and the State has not offered any guidance as to how Illinois citizens should tease out that difference.

A case-by-case discretionary decision by law enforcement officers and prosecutors does not solve the problem of the chilling effect on innocent speakers who fear prosecution based on negligently made distressing communications to or about a person.

Holding

We conclude that subsection (d)(2) (which says: "This Section does not apply to an exercise of the(2) This Section does not apply to an exercise of the    right to free speech or assembly that is otherwise lawful.") is insufficient to remediate the extreme overbreadth of subsection (a) and cannot by itself make the terms of that provision constitutional.

Accordingly, the degree of overbreadth is substantial, rendering subsection (a) overbroad on its face. 

We hold that the portion of subsection (a) of the stalking statute that makes it criminal to negligently “communicate[ ] to or about” a person, where the speaker knows or should know the communication would cause a reasonable person to suffer emotional distress, is facially unconstitutional.

Additionally, because subsection (a) of the cyberstalking statute imposes criminal liability based on similar language, it is unconstitutionally overbroad as well.

See 720 ILCS 5/12-7.5(a) (West 2012).

Accordingly, all four of defendant’s convictions must be vacated. In sum, the terms of subsection (a) of the stalking and cyberstalking statutes violate the first amendment because they are overbroad in that they impermissibly infringe on the right to free speech.

Accordingly, the phrase “communicates to or about” is stricken from those provisions.

Because defendant’s convictions under those provisions cannot be sustained based on other conduct, his convictions must be vacated, and we affirm the judgment of the appellate court.

In light of our resolution of the first amendment issue, we need not address the remaining arguments of the parties. Although the lower court's ruling was correct their reasoning was flawed. Cases dealing with no mens rea , like Elonis, have no bearing on the case before us because the statutory provisions at issue here are not silent as to mental state. Contrary to the views expressed by the appellate court, substantive due process does not categorically rule out negligence as a permissible mental state for imposition of criminal liability, and Elonis does not suggest such a categorical rule.

Therefore, we reject the appellate court’s reasoning and its determination that Elonis mandates invalidation of the statutory provisions at issue here.