First Amendment and Other Legal Considerations

All 50 States, the District of Columbia, and the federal government have passed laws that criminalize stalking to address the serious harms and dangers that result from stalking, including the fear of violence and loss of privacy and control suffered by the victim. In addition to the direct harms caused by stalking, stalking is also frequently a precursor to physical violence against the victim. By its nature, however, stalking is not a crime that can be defined with a particularized, discrete set of acts. Frequently stalking consists of a course of conduct that may involve a broad range of harassing, intimidating, and threatening behavior directed at a victim. The conduct can be as varied as the stalker's imagination and ability to take actions that harass, threaten, and force himself or herself into the life and consciousness of the victim. As new technologies become available, stalkers adapt those technologies to new ways of stalking victims, as is the case with the Internet and cyberstalking. 

As a result of the breadth of conduct potentially involved in stalking, anti-stalking statutes need to be relatively broad to be effective. At the same time, however, because of that breadth and because stalking can involve expressive conduct and speech, anti-stalking statutes must be carefully formulated and enforced so as not to impinge upon speech that is protected by the First Amendment. This is particularly true with regard to cyberstalking laws, which frequently will involve speech over the Internet. The Internet, moreover, has been recognized as an important tool for protected speech activities. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 850-52, 870 (1997); American Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 476, 493 (E.D. Pa. 1999). 

The fact that stalking behavior (including cyberstalking) may implicate important issues of free speech, however, does not eliminate the significant public interest in its criminal regulation or suggest that any criminal regulation would be prohibited by the freedom of speech guarantees of the First Amendment. The First Amendment does not prohibit any and all regulation that may involve or have an impact on speech. Of particular relevance to stalking, the Supreme Court has recognized that governments may criminalize true threats without violating the First Amendment. See, e.g., Watts v. United States, 394 U.S. 705 (1969) (per curiam). As discussed in the Introduction of this report, stalking (as well as cyberstalking) generally involves conduct reasonably understood to constitute a threat of violence, and such threats may be criminalized consistent with the First Amendment. 

[Compiled from 1999 Report on Cyberstalking: A New Challenge for Law Enforcement and Industry, a Report from the Attorney General to the Vice President, August 1999].


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