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Stalking — constitutionality

Wisconsin Court of Appeals

Criminal

Stalking — constitutionality

Section 940.32(2m)(a), which prohibits stalking with a previous conviction of a violent crime, is not a facially overbroad regulation of protected speech.

“Like the communications in Robins, the actions prohibited by WIS. STAT. § 940.32 are conduct, not speech. Like the child enticer in Robins, the stalker may use language in his or her commission of the proscribed acts. The use of the language is not against the law. What is against the law is the intentional course of conduct to inflict harm, which the language shows. In Robins, internet communications were evidence of Robins’ intent and scheme to lure a child into a secluded place, contrary to the child enticement statute. Robins, 253 Wis. 2d 298, ¶43. In this case, the communications associated with the acts of contacting the victim by telephone and sending messages and e-mails were evidence of Hemmingway’s intent to cause Rebecca to fear bodily injury or death, contrary to the stalking statute. Sec. 940.32(2). Such intimidating conduct serves no legitimate purpose and merits no First Amendment protection. ‘There is no appreciable amount of protected speech where the speaker both intends to cause intimidation, abuse, damage to property, or fear of physical harm or property damage, and does in fact cause one of these alternatives.’ O’Brien v. Borowski, 961 N.E.2d 547, 558 (Mass. 2012). Hemmingway’s speech is 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. Such stalking conduct does not trigger First Amendment scrutiny or protection.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP2372-CR State v. Hemmingway

Dist. II, Waukesha County, Kieffer, J., Neubauer, J.

Attorneys: For Appellant: O’Brien, Daniel J., Madison; Westphal, Timothy F., Waukesha; For Respondent: Bloch, Bradley J., Waukesha; Kuchler, Gerard F., Waukesha


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