Illinois Court Says State's Cyberstalking Law Is Unconstitutional

One of several problems with hastily-enacted laws meant to deal with advances in technology is that they often skip a step or several when being written. In many cases, the step skipped is an important one: the consideration of intent. By crafting laws that cater to subjective views of a situation -- whether it's meant to address cyberbullying or other forms of online harassment -- the laws blow past, sometimes intentionally, the requirement that there be malicious intent behind the targeted actions.

This has led to courts striking down newly-enacted laws as unconstitutional because they have skipped this step. Without this requirement in place, the laws curb free speech by enacting new limits on First Amendment expression based almost solely on subjective reading of the allegedly "criminal" content.

The Illinois Appeals Court is the latest to find a cyberstalking/harassment law invalid. The problem here is, again, the lack of a mens rea requirement. (h/t Orin Kerr)

The stalking case that triggered this review [PDF] deals with a former intern at a Christian radio station who apparently couldn't take "no" for an answer, or just genuinely had no idea how to obtain a definitive answer on his current job status. It all depends on who you ask. But as the law was written, the only person who needed to be asked was the complainant.

Defendant was charged by indictment with two counts of stalking and two counts of cyberstalking. In particular, the indictments collectively alleged that defendant: (1) called Sonya Blakey on the telephone; (2) sent her emails; (3) stood outside of her place of business; (4) entered her place of business; and (5) made multiple posts on his Facebook page threatening Blakey’s coworkers and expressing his desire to engage in sexual acts with Blakey. The indictments further alleged that defendant “knew or should have known” that his conduct “would cause a reasonable person to suffer emotional distress” and “fear for her safety.”

The indictment makes the defendant [Walter Relerford] sound more than a bit dangerous. The actual events that triggered this prosecution, however, are not nearly as evil-sounding. Blakey testified that multiple emails were sent not just to her, but other employees at the station -- all of them inquiring about the possibility of working there again after being turned down for an open intern position. She also testified that the incident in which the defendant "stood outside her place of business" involved nothing more than him waving up at her from ground level -- at a complex where multiple businesses, including several restaurants, were located.

The defendant's unexpected visit to the business was just that. Blakey may have subjectively experienced shock or fear, but the defendant left peaceably when escorted from the building and made no movements or statements suggesting he posed any threat to Blakey.

The Facebook posts made by the defendant were a bit more disturbing, containing thinly-veiled threats related to Blakey and the station's refusal to give him a job. There were also comments of a sexual nature made. Also included were other things entirely unrelated to anything -- like a group of "Chinese people" talking about "killing everyone at the station" and the insistence that "the entire Michigan State football team from 1993" be immediately "buried" if he did not have "Sonya [Blakey's] vagina in his mouth" by the end of the week.

These posts were definitely more disturbing than anything Relerford had done prior. But they weren't tagged with Sonya Blakey's name (making them visible to her) and no attempt was made by Relerford to ensure Blakey saw them. Instead, a friend of Blakey's saw the posts and emailed them to her.

Blakey admitted during testimony that Relerford had never once threatened her directly. Instead, everything was based on how she felt about the interactions. And the way the law is crafted allows a single subjective viewpoint to steer prosecution… which is exactly what the court finds unconstitutional about the law.

The laws (both the regular stalking and cyberstalking version) had survived challenges before. But under the Supreme Court's Elonis decision, they no longer withstand Constitutional scrutiny.

As noted above,