Last Thursday, Illinois Supreme Court struck down provisions from its ‘stalking’ and ‘cyber-stalking’ statutes that criminalized,

  1. “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
  2. including “communicat[ing] to or about” a person,
  3. when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
  4. “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”

The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”

Now, there is a lot of lawyer talk in the WaPo article but I’m going to attempt to break down as best as I can.

Firstly, the court ruled that the statute is ‘presumptively unconstitutional’ as it restricts content-based speech.

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.

A content-based restriction is a “restriction on the exercise of free speech based upon the subject matter or type of speech,” and since this statute was overbroad, it was considered unconstitutional.

The overbroad nature of the statute also covers a wide range of constitutionally protected speech. This includes both political and nonpolitical speech.

The Supreme Court has acknowledged that “most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from Government regulation.” Given the wide-ranging scope of the first amendment, its protection presumptively extends to many forms of speech that would fall within the broad spectrum of speech restricted by subsection (a).

Another thing the court pointed out is that the statute isn’t limited to “one-to-one communications,” which might be restricted under Rowan v. United States Post Office Department, it states “that nonconsensual one-to-one communications that impinge on the privacy rights of the recipient are not protected under the first amendment.”
Lastly, the statute’s exception for  “exercise of the right to free speech or assembly that is otherwise lawful,” cannot “eliminate the chilling effect on protected speech and resulting self-censorship.”
The exemption does not prevent unwarranted prosecutions under a case-by-case application of the “communicates to or about” language. 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. We conclude that [the exemption] is insufficient to remediate the extreme overbreadth of subsection (a) and cannot by itself make the terms of that provision constitutional.
I’d suggest checking out Eugene Volokh’s breakdown on WaPo and yes, even trash site can do good work.
There’s something I want to address that I noticed in the comment section of the article. A commenter wrote, “Eugene, you appear to be ever so happy about this ruling. I hope that you remain so after the suicide of the next individual who is unable to bear the Cyberstalking from which they have suffered.”
I do not believe in outlawing speech that can trigger people to kill themselves. Words do not kill people, I’ve never seen keel over dead because someone tweeted ‘little bitch’ at them.
When it comes to ‘cyber-bullying’ and ‘cyber-stalking,’ you should follow Tyler, The Creator’s advice.

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