Omar Bennett
Stalking is a crime that can cause victims to live in fear, and even lead to physical symptoms of stress. In the US, states have been quick to enact laws that protect victims from harassing or stalking activity, even if the victim has not been physically injured. In D.C., the law against stalking makes it a crime to purposefully engage in a course of conduct directed at a specific individual [w]ith the intent to cause that individual to [f]ear for his or her safety or the safety of another person; or [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress. However, recognising that a law making communication a crime risks the prosecution of speech protected by the First Amendment, the law provides that this section does not apply to constitutionally protected activity.
| Characteristics | Values |
|---|---|
| Communication | Constitutionally protected activity |
| Intent | To cause fear, alarm, distress, or emotional suffering |
| Conduct | Defined as including communication to or about another individual |
| Anti-stalking orders | Ordering the stalker to stop their conduct and stay away from the victim |
| First Amendment protection | Not limited to speech that has a "legitimate purpose" |
| Statutory exemption | Must be construed to exempt speech unless it falls into a category not protected, such as true threats, obscenity, or speech integral to other criminal activity |
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What You'll Learn
- The D.C. Court of Appeals has never explained what 'constitutionally protected activity' means in the context of stalking
- The First Amendment protects speech that has a 'legitimate purpose'
- The First Amendment does not protect true threats, obscenity, or speech integral to other criminal activity
- A victim of stalking can get an 'Anti-Stalking Order' to stop the stalker's conduct
- States have been quick to enact laws that specifically protect victims from harassing or stalking activity
The D.C. Court of Appeals has never explained what 'constitutionally protected activity' means in the context of stalking
The ACLU of DC has noted that First Amendment protection is not limited to speech that has a 'legitimate purpose', and that much of the #MeToo movement involves 'naming and shaming' powerful men who have sexual relations with subordinate women. In the case of Mashaud v. Boone, the ACLU filed an amicus brief arguing that the statutory exemption for 'constitutionally protected activity' must be construed to exempt speech unless the speech falls into one of the categories traditionally recognised as not protected, such as true threats, obscenity, or speech integral to other criminal activity.
The D.C. Court of Appeals has yet to provide a clear explanation of what constitutes 'constitutionally protected activity' in the context of stalking. This lack of clarification has led to ongoing debates and legal challenges surrounding the interpretation of this term, particularly in relation to free speech protections under the First Amendment.
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The First Amendment protects speech that has a 'legitimate purpose'
The First Amendment of the U.S. Constitution protects the right to free speech, including the right to express oneself and to gather with other people. It also protects the right to protest the government and petition the government for a redress of grievances. The First Amendment only protects speech from government censorship, including federal, state and local government actors. This means that local and federal government agencies cannot apply rules inconsistently to private speech based on its viewpoint. For example, the government cannot approve a permit for an anti-abortion rally while blocking a permit for a pro-abortion rally.
In the context of stalking, the D.C. law against stalking makes it a crime to "purposefully engage in a course of conduct directed at a specific individual with the intent to cause that individual to fear for his or her safety". However, the law also provides that it "does not apply to constitutionally protected activity", recognising that making communication a crime risks the prosecution of speech protected by the First Amendment.
In the case of *Mashaud v. Boone*, the ACLU of DC filed an amicus brief arguing that the statutory exemption for "constitutionally protected activity" must be construed to exempt speech unless it falls into one of the categories traditionally recognised as not protected, such as true threats, obscenity, or speech integral to other criminal activity. The First Amendment protection is not limited to speech that has a "legitimate purpose".
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The First Amendment does not protect true threats, obscenity, or speech integral to other criminal activity
In the context of stalking, the D.C. law against stalking (D.C. Code sections 22-3131 to 22-3135) makes it a crime to "purposefully engage in a course of conduct directed at a specific individual [w]ith the intent to cause that individual to [f]ear for his or her safety or the safety of another person; or [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress". This law includes "communicat [ing] to or about another individual" as part of the definition of "engaging in a course of conduct". However, recognising that making communication a crime could risk the prosecution of speech protected by the First Amendment, the law provides that it "does not apply to constitutionally protected activity".
The D.C. Court of Appeals has not yet explained what this means, but in the case of *Mashaud v. Boone*, the ACLU of DC filed an amicus brief arguing that the statutory exemption for "constitutionally protected activity" must be construed to exempt speech unless it falls into one of the categories traditionally recognised as not protected, such as true threats, obscenity, or speech integral to other criminal activity.
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A victim of stalking can get an 'Anti-Stalking Order' to stop the stalker's conduct
Stalking is a crime that can cause victims to live in fear and distress. In the US, states have been quick to enact laws that specifically protect victims from harassing or stalking activity, even if the victim has not yet been physically injured by the defendant.
In the District of Columbia (D.C.), the law against stalking (D.C. Code sections 22-3131 to 22-3135) makes it a crime to “purposefully engage in a course of conduct directed at a specific individual [w]ith the intent to cause that individual to [f]ear for his or her safety or the safety of another person; or [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress”.
A victim of stalking can get an Anti-Stalking Order, ordering the stalker to stop their conduct and stay away from the victim. The law provides that “ [t]his section does not apply to constitutionally protected activity”, meaning that a law making “communication” a crime risks the prosecution of speech protected by the First Amendment. The D.C. Court of Appeals has never explained what this means. However, the ACLU of DC has argued that the statutory exemption for “constitutionally protected activity” must be construed to exempt speech unless the speech falls into one of the categories traditionally recognised as not protected, such as true threats, obscenity, or speech integral to other criminal activity.
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States have been quick to enact laws that specifically protect victims from harassing or stalking activity
To “engage in a course of conduct” is defined to include “communicat [ing] to or about another individual”. However, recognising that a law making “communication” a crime risks the prosecution of speech protected by the First Amendment, the law provides that “ [t]his section does not apply to constitutionally protected activity”.
In the case of Mashaud v. Boone, the ACLU of DC filed an amicus brief arguing that the statutory exemption for “constitutionally protected activity” must be construed to exempt speech unless the speech falls into one of the categories traditionally recognised as not protected, such as true threats, obscenity, or speech integral to other criminal activity.
The D.C. Court of Appeals has never explained what “constitutionally protected activity” means in the context of stalking laws, but it is clear that states are taking action to protect victims of harassing and stalking activity, even if the victim has not yet been physically injured by the defendant.
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Frequently asked questions
Constitutionally protected activity stalking refers to a law that makes communication a crime in stalking cases, which risks the prosecution of speech protected by the First Amendment.
The D.C. law against stalking (D.C. Code sections 22-3131 to 22-3135) makes it a crime to "purposefully engage in a course of conduct directed at a specific individual [w]ith the intent to cause that individual to [f]ear for his or her safety or the safety of another person; or [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress".
A victim of stalking can get an "Anti-Stalking Order", ordering the stalker to stop their conduct, stay away from the victim, etc.
