People v. Ashley , 2019 IL 123989 ( 2020 )

2020 IL 123989
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123989)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
MARSHALL ASHLEY, Appellant.
Opinion filed January 24, 2020.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Burke and Justices Thomas, Kilbride, Garman, Karmeier, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial in the circuit court of McLean County, defendant
Marshall Ashley was convicted of stalking (720 ILCS 5/12-7.3(a)(2), (c)(1) (West
2014)) and was sentenced to serve a prison term of one year and six months.
Defendant appealed, arguing that the provisions of the stalking statute under which
he was convicted are facially unconstitutional in violation of the first amendment
and substantive due process as guaranteed by the United States Constitution (U.S.
Const., amends. I, XIV). The appellate court rejected defendant’s arguments and
affirmed his conviction. 2018 IL App (4th) 150293-U. This court granted
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018). We
now affirm the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 In October 2014, the State charged defendant with two counts of felony
stalking, alleging he knowingly engaged in a course of conduct directed at Keshia
Tinch, which defendant knew or should have known would cause a reasonable
person (1) to fear for her safety (count I) (720 ILCS 5/12-7.3(a)(1) (West 2014))
and (2) to suffer emotional distress (Count II) (id. § 12-7.3(a)(2)).
¶4 In a bench trial, the State presented the following evidence. Defendant and
Tinch had been dating for approximately two years, had a child together, and lived
together in an apartment in Normal, Illinois.
¶5 Karen Miller, Tinch’s mother, testified that she and several other relatives,
including children, were at the apartment on October 21, 2014, when Tinch
received a phone call from defendant. During that call, which Miller heard on
speaker mode, defendant and Tinch argued, and defendant threatened to come over
and kill Tinch and “everyone with a banger,” which Miller understood to mean a
gun.
¶6 Tinch testified that, after receiving this phone call, she, Miller and the other
relatives went to Miller’s house. While in transit, Tinch called the police and gave
them her address and her mother’s address.
¶7 Nicholas Mishevich, an officer with the Normal Police Department, testified
that he responded to Miller’s address. While Mishevich was present, Tinch received
multiple phone calls and text messages from the same phone number. Mishevich
took photographs of the text messages and identified People’s Exhibit Nos. 1-A and
1-B as accurately depicting the text messages he saw on Tinch’s phone that night.
¶8 Officer Jonathan McCauley testified that he was on patrol on October 21, 2014,
and was dispatched to the area near Tinch’s apartment to look for defendant. He
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pulled over a vehicle with defendant in the passenger seat and took defendant into
custody. McCauley interrogated defendant at the police station and documented the
text messages exchanged with Tinch on defendant’s phone.
¶9 Text messages from defendant to Tinch introduced at trial included the
following: 1
2:24 p.m.: “you finna make me come look for you’re a***”
3:04 p.m.: “I love you too much to see u dead dummy. But [I] guarantee u
this. I can make u suffer. If [I] want to.”
3:29 p.m.: “You rite start to think more before u talk that s*** will get u
hurt or killed talking dumb put your mouth bay”
3:30 p.m.: “Out”
7:05 p.m.: “So y haven’t you text or call me but it[’]s cool [K]eshia [I] guess
we don[’]t have to talk like that every time”
7:12 p.m.: “Just saying b*** u don[’]t check up on me you don’t know how
[I’]m living”
7:12 p.m.: “Where the f*** are u”
7:12 p.m.: “Cause rode past in seen lights on there”
7:23 p.m.: “Answer my f*** question why is there lights on at the house”
7:26 p.m.: “You got my blood boiling”
7:45 p.m.: “Y u aint answering the phone scary a*** b***”
7:54 p.m.: “So u ain’t gon pick up huh”
1
All quotations are [sic] unless an alteration is indicated.
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7:57 p.m.: “Rite you not picking up cause uk im f*** rite b*** [I] swear [I]
tried to trust your thot a*** w[h]en [I] go over there any tim[e] said u had a
n*** over there imma go in on you’re a***”
8:23 p.m.: “I swear b*** if a n*** there its g[o]ing to be one”
8:24 p.m.: “U them f*** up”
8:31 p.m.: “I hope whoever you got it when I got guns”
8:57 p.m.: “So u called the law”
Defendant also sent Tinch a photograph of a handgun. The messages documented
from defendant’s phone were consistent with those taken from Tinch’s phone,
except that defendant’s phone did not contain the 8:31 p.m. message referencing
guns.
¶ 10 Tinch testified that the text messages “scared” her and the message shortly after
7 p.m. “terrified” her because she “knew right then and there that [defendant] was
going to come after [her] even more.” Over defense objection, Tinch was permitted
to testify to two prior uncharged incidents in which defendant held Tinch at
gunpoint.
¶ 11 Defendant testified in his defense that he and Tinch lived together and had been
arguing often in October 2014. At some point, Tinch informed defendant that she
was getting evicted from the apartment. On October 21, 2014, Tinch had called
defendant to ask if he would help her move because someone was coming to change
the locks that day. Defendant was “heated” because he had given Tinch money for
rent, which he learned she used for other things. Defendant admitted that he
engaged in some heated exchanges with Tinch but denied that he threatened her
and specifically denied threatening her with a gun.
¶ 12 Two prior convictions, a 2013 criminal trespass to residence and a 2014
domestic battery, were admitted for the purpose of impeaching defendant’s
testimony.
¶ 13 The circuit court found defendant guilty of stalking based on the conduct
alleged in count II, finding that defendant’s text messages and phone calls would
cause a reasonable person to suffer emotional distress. Defendant was subsequently
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sentenced to a term of one year and six months’ imprisonment, followed by a four-
year term of mandatory supervised release.
¶ 14 On appeal, defendant argued that subsection (a) of the stalking statute violated
state and federal constitutional guarantees of (1) due process, because it lacks a
mens rea requirement and is unduly vague, and (2) free speech, because it
overbroadly criminalizes a substantial amount of protected speech.
¶ 15 The appellate court rejected defendant’s argument that subsection (a) violates
due process, relying on this court’s decision in People v. Relerford, 2017 IL
121094, ¶ 22. 2018 IL App (4th) 150293-U, ¶ 26.
¶ 16 The appellate court acknowledged that Relerford held the “communications to
or about” portion of the statute was overbroad and unconstitutionally restricted the
right to free speech. Id. ¶¶ 35-37. However, the court determined that defendant’s
conviction could be sustained based on conduct that was otherwise prohibited by
the stalking statute, specifically, that his conduct threatened Tinch. Id. ¶¶ 41-43.
¶ 17 The appellate court acknowledged that there was conflicting precedent as to
whether a true threat requires a showing of the speaker’s subjective intent to
threaten or, alternatively, an objective standard for statements that are reasonably
understood to convey a threat even if the speaker did not so intend. The court found
that it need not determine which standard governs because defendant’s statements
to Tinch were true threats under either standard. Id. ¶ 42. Defendant appeals to this
court.
¶ 18 II. ANALYSIS
¶ 19 In challenging his conviction, defendant asserts that the provisions of the
stalking statute under which he was convicted are facially unconstitutional because
they violate the right to free speech as guaranteed under the United States
Constitution. U.S. Const., amend. I. He also argues that the applicable provisions
violate substantive due process because they improperly criminalize innocent
conduct. U.S. Const., amend. XIV.
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¶ 20 A. The Stalking Statute
¶ 21 Illinois’s stalking statute was adopted in 1992 and defined the offense as
requiring an intentional threat of a violent crime in addition to multiple acts of
following or surveillance in furtherance of the threat. See Pub. Act 87-870, § 1 (eff.
July 12, 1992) (adding 720 ILCS 5/12-7.3(a)). The statute was subsequently
modified to require that the prohibited conduct be undertaken “knowingly and
without lawful justification.” Pub. Act 88-402, § 5 (eff. Aug. 20, 1993). This court
rejected a first amendment overbreadth challenge to the 1994 version of the statute,
holding that it prohibited only speech that was an integral part of unlawful conduct.
See People v. Bailey, 167 Ill. 2d 210, 227 (1995). This conclusion was based on the
fact that the statute embraced only activities performed without lawful authority
and required that the defendant threaten the victim and take action in furtherance
of the threat. Id. at 227-28.
¶ 22 Of relevance here, the General Assembly again amended the statute in 2010 to
expand the definition of the offense of stalking. See Pub. Act 96-686, § 5 (eff. Jan.
1, 2010). Although the prior version of the offense was retained and renumbered as
subsection (a-3), the legislature also crafted new statutory language to encompass
additional prohibited conduct. See id.; Relerford, 2017 IL 121094, ¶ 27. The
amended statute included provisions that targeted conduct accomplished through
the use of newer technology such as electronic communications as well as conduct
that historically has led to homicide. Pub. Act 96-686, § 5 (eff. Jan. 1, 2010). In
discussing the 2010 modifications, Senator Hutchinson, a sponsor of the proposed
public act, stated that it
“redefines stalking, aggravated stalking, and cyberstalking as knowingly
engaging in a course of conduct directed at a specific person, where the
defendant knows or should know that this course of conduct would cause a
reasonable person to either fear for their safety or for the safety of a third party
or to suffer emotional distress. *** A recent U.S. Department of Justice study
said that seventy-six percent of female homicide victims were stalked first, prior
to their death. It’s terrifying and it’s something that we need to do all we can to
protect our victims from. This will broaden the definition of stalking. It amends
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the Criminal Code to update our stalking laws. *** [I]t encompasses all
technologies that stalkers use to track and harass their victims.” 96th Ill. Gen.
Assem., Senate Proceedings, May 21, 2009, at 125 (statements of Senator
Hutchinson).
¶ 23 Following adoption of the 2010 amendments, the version of the stalking statute
that was in effect when defendant was charged and convicted provided, in relevant
part, as follows:
“(a) A person commits stalking when he or she knowingly engages in a
course of conduct directed at a specific person, and he or she knows or should
know that this course of conduct would cause a reasonable person to:
(1) fear for his or her safety or the safety of a third person; or
(2) suffer other emotional distress.
(a-3) A person commits stalking when he or she, knowingly and without
lawful justification, on at least 2 separate occasions follows another person or
places the person under surveillance or any combination thereof and:
(1) at any time transmits a threat of immediate or future bodily harm,
sexual assault, confinement or restraint and the threat is directed towards
that person or a family member of that person; or
(2) places that person in reasonable apprehension of immediate or future
bodily harm, sexual assault, confinement or restraint to or of that person or
a family member of that person.” 720 ILCS 5/12-7.3(a), (a-3) (West 2014).
The phrase “course of conduct,” as defined in subsection (c)(1), included:
“2 or more acts, including but not limited to acts in which a defendant directly,
indirectly, or through third parties, by any action, method, device, or means
follows, monitors, observes, surveils, threatens, or communicates to or about, a
person, engages in other non-consensual contact, or interferes with or damages
a person’s property or pet. A course of conduct may include contact via
electronic communications.” Id. § 12-7.3(c)(1).
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¶ 24 Also, subsection (c) defined “emotional distress” as “significant mental
suffering, anxiety or alarm.” Id. § 12-7.3(c)(3). The phrase “reasonable person” is
defined as “a person in the victim’s situation.” Id. § 12-7.3(c)(8).
¶ 25 Thus, under the terms of the amended statute, two or more threats that the
defendant knows or should know would cause a reasonable person to suffer
emotional distress constitute a course of conduct sufficient to establish the offense
of stalking. See id. § 12-7.3(a)(2), (c)(1).
¶ 26 B. The First Amendment and Its “True Threat” Exception
¶ 27 We initially consider defendant’s claim of unconstitutionality under the first
amendment right to free speech. Defendant asserts that the provisions of the
amended stalking statute under which he was convicted (id.) render the statute
overly broad in violation of the first amendment because they criminalize protected
speech. The State disputes defendant’s argument, contending that the term
“threatens” as used in subsection (c)(1) refers only to true threats that fall outside
the protection of the first amendment. We agree with the State.
¶ 28 The first amendment, which applies to the states through the fourteenth
amendment, precludes the enactment of laws “abridging the freedom of speech.”
U.S. Const., amends. I, XIV. Generally, a statute is overly broad on its face if it
proscribes constitutionally protected activity as well as activity that may be
prohibited without offending constitutional rights. Grayned v. City of Rockford, 408
U.S. 104, 114 (1972); Zwickler v. Koota, 389 U.S. 241, 249-50 (1967) (collecting
cases); Relerford, 2017 IL 121094, ¶ 50. The doctrine of first amendment
overbreadth “ ‘represents a departure from the traditional rule that a person may not
challenge a statute on the ground that it might be applied unconstitutionally in
circumstances other than those before the court.’ ” People v. Minnis, 2016 IL
119563, ¶ 14 (quoting Bates v. State Bar, 433 U.S. 350, 380 (1977)). As a
consequence, the overbreadth doctrine allows a party to assert a facial violation of
the first amendment, even if that party’s conduct would not fall within the
amendment’s protection. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973);
Relerford, 2017 IL 121094, ¶ 50; Minnis, 2016 IL 119563, ¶ 14. This exception to
the traditional requirement of standing is justified by the important goal of avoiding
the potential chilling effect that overly broad statutes have on the exercise of
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protected speech. Virginia v. Hicks, 539 U.S. 113, 119 (2003); Relerford, 2017 IL
121094, ¶ 50; Minnis, 2016 IL 119563, ¶ 14.
¶ 29 A statute “may be invalidated as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
n.6 (2008)). Considering its limited application, the overbreadth doctrine should be
applied “only as a last resort” and only if the degree of overbreadth is substantial.
Broadrick, 413 U.S. at 613. In addition, facial overbreadth will not be invoked
when the challenged statute is subject to a limiting construction. Id.
¶ 30 Under the first amendment, a government “has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” (Internal
quotation marks omitted.) Ashcroft v. American Civil Liberties Union, 535 U.S.
564, 573 (2002); Relerford, 2017 IL 121094, ¶ 31. Consequently, “[t]he
Constitution gives significant protection from overbroad laws that chill speech
within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 244 (2002); Relerford, 2017 IL 121094, ¶ 31.
¶ 31 Yet the United States Supreme Court has recognized that certain traditional
categories of expression do not fall within the protections of the first amendment,
and content-based restrictions as to those recognized categories of speech have been
upheld. Stevens, 559 U.S. at 468. Those accepted categories of unprotected speech
include true threats, which may be banned without infringing on first amendment
protections. United States v. Alvarez, 567 U.S. 709, 717 (2012); Stevens, 559 U.S.
at 468; Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam); see also
Relerford, 2017 IL 121094, ¶ 33; Bailey, 167 Ill. 2d at 227-28.
¶ 32 Where a statute criminalizes a form of pure speech, it must be interpreted “with
the commands of the First Amendment clearly in mind.” Watts, 394 U.S. at 707.
Therefore, “[w]hat is a threat must be distinguished from what is constitutionally
protected speech.” Id.
¶ 33 The Supreme Court has held that “ ‘[t]rue threats’ encompass those statements
where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
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individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003) (citing Watts, 394 U.S. at
708). “The speaker need not actually intend to carry out the threat. Rather, a
prohibition on true threats ‘protect[s] individuals from the fear of violence’ and
‘from the disruption that fear engenders,’ in addition to protecting people ‘from the
possibility that the threatened violence will occur.’ ” Id. at 359-60 (quoting R.A.V.
v. St. Paul, 505 U.S. 377, 388 (1992)).
¶ 34 Defendant acknowledges that the government may restrict the content of speech
in certain limited areas, including the recognized exception for true threats. He
maintains, however, that the amended stalking statute is unconstitutionally
overbroad because the “threatens” provision sweeps in protected speech that
expresses an intent to engage in lawful, nonviolent behavior. Therefore, we
construe the term “threatens” in subsection (c)(1) to determine whether it
unconstitutionally infringes on the boundaries of the first amendment. More to the
point, we must determine whether the term “threatens” falls within the category of
“true threats” that are not protected by the first amendment.
¶ 35 In general, statutes are presumed constitutional, and the party challenging the
constitutionality of a statute carries the burden of establishing that the statute is
unconstitutional. Minnis, 2016 IL 119563, ¶ 21. This court has a duty to construe
the statute in a manner that upholds its validity and constitutionality if reasonably
possible. Id.; Bailey, 167 Ill. 2d at 225. The determination of whether a statute is
constitutional is a question of law to be reviewed de novo. Minnis, 2016 IL 119563,
¶ 21.
¶ 36 The primary objective in construing a statute is to ascertain and give effect to
the legislature’s intent, bearing in mind that the most reliable indicator of that intent
is the statutory language, given its plain and ordinary meaning. People v. Casas,
2017 IL 120797, ¶ 18. A reviewing court must view the statute as a whole,
construing words and phrases in light of other relevant statutory provisions and not
in isolation. Id. In addition, it is appropriate for the court to consider the reason for
the law, the problems sought to be remedied, the purposes to be achieved, and the
consequences of construing the statute one way or another. Id. Moreover, where a
word is used in different sections of the same statute, the presumption is that the
word is used with the same meaning throughout the statute, unless a contrary
legislative intent is clearly expressed. People v. Maggette, 195 Ill. 2d 336, 349
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(2001) (citing People ex rel. Scott v. Schwulst Building Center, Inc., 89 Ill. 2d 365,
371 (1982)); see also People v. Lutz, 73 Ill. 2d 204, 212 (1978); Moran v. Katsinas,
16 Ill. 2d 169, 174 (1959).
¶ 37 1. Unlawful Conduct
¶ 38 Defendant claims that the plain meaning of the term “threatens” in subsection
(c)(1) is not limited to unlawful violence and, therefore, sweeps beyond the first
amendment exception for true threats. The State counters that the term “threatens”
as used in subsection (c)(1) is consistent and coextensive with the exception for true
threats.
¶ 39 Both defendant and the State rely on various dictionary definitions of the terms
“threat” and “threatens” to support their respective positions. Defendant cites
definitions that refer to an expression of intent to do something undesirable or to
take some other hostile action as a means of retribution. The State conversely cites
definitions that refer to an expression of intent to inflict evil, injury, or damage.
Given that these divergent definitions can be read to support both positions, they
are not dispositive of the question presented here.
¶ 40 According to defendant, any course of conduct that threatens economic or
emotional injuries will suffice as a predicate for stalking. Defendant maintains that,
because the legislature broadened the scope of behavior prohibited by the amended
statute, the term “threatens” cannot be interpreted to include only a threat of bodily
harm, sexual assault, confinement, or restraint, as set forth in section (a-3). In
support, defendant relies on our appellate court’s recent decision in People v.
Morocho, 2019 IL App (1st) 153232, which held that subsection (a)(2) is overbroad
on its face and unconstitutional because it criminalizes speech that threatens lawful
action unrelated to violence where the speaker knows or should know that the
threats would cause a reasonable person to suffer emotional distress. See id. ¶¶ 36-
37, 40, 44, 48-49.
¶ 41 In addressing defendant’s argument, we construe the term “threatens” in the
context of the stalking statute as a whole and considering the legislative intent and
the purpose sought to be achieved. See Casas, 2017 IL 120797, ¶ 18. In addition,
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we are mindful of our obligation to construe the statute as constitutional if possible.
See Minnis, 2016 IL 119563, ¶ 21; Bailey, 167 Ill. 2d at 225.
¶ 42 As this court has observed, the intent of the legislature in enacting the stalking
statute was “to prevent violent attacks by allowing the police to act before the
victim was actually injured and to prevent the terror produced by harassing
actions.” Bailey, 167 Ill. 2d at 224. Based on those considerations, we held that the
stalking statute must be construed to proscribe only unlawful conduct, even though
that condition was not expressly included in its language at the time. Id.
¶ 43 When the 2010 amendments were adopted, the prior version of the stalking
statute was renumbered as section (a-3) and criminalized threats of bodily harm,
sexual assault, confinement, or restraint committed along with two incidents of
following or monitoring of the victim. 720 ILCS 5/12-7.3(a-3) (West 2010).
Section (a-5) also included bodily harm, sexual assault, confinement, or restraint in
defining a subsequent offense of stalking based on similar conduct. Id. § 12-7.3(a-
5). Thus, the General Assembly was aware that the prohibition against two or more
threats issued in conjunction with following or monitoring of the victim specifically
referred to unlawful and violent behavior.
¶ 44 The 2010 amendments expanded the scope of the stalking statute by updating
its language to include “all technologies that stalkers use to track and harass their
victims.” 96th Ill. Gen. Assem., Senate Proceedings, May 21, 2009, at 125
(statements of Senator Hutchinson). In addition, the amendments were intended to
further protect stalking victims and enhance the ability of law enforcement to
intercede before the threatening speech or conduct escalates to physical harm or
death. Id.
¶ 45 When considered within the context of the entire statute, we construe the term
“threatens” to be consistent with the word “threat” in subsections (a-3) and (a-5),
which target threats of bodily harm, sexual assault, confinement, or restraint. 720
ILCS 5/12-7.3(a-3), (a-5) (West 2010). Given the nature and purpose of the statute
and the legislative goals underlying the 2010 amendments, we determine that
“threatens” refers to unlawful violence of the type specified in sections (a-3) and
(a-5). See Maggette, 195 Ill. 2d at 349 (holding that, where language is used in
different sections of the same legislative act, the terms have the same meaning
throughout the statute, unless contrary legislative intent is clearly expressed).
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Neither the statutory language nor the legislative history demonstrates a clearly
expressed intent that the term “threatens” in subsection (c)(1) should be construed
differently from other provisions of the statute.
¶ 46 In adopting the 2010 amendments, the General Assembly expressed a dual
interest in avoiding harassment through the use of new technologies and in
preventing conduct that precedes violent attacks. Construing the term “threatens”
as referring to true threats of unlawful violence gives effect to those legislative
goals and is in accord with our obligation to construe a statute so as to uphold its
constitutionality where reasonably possible. See Minnis, 2016 IL 119563, ¶ 21;
Bailey, 167 Ill. 2d at 225.
¶ 47 Accordingly, we conclude that the legislature intended that the term “threatens”
in subsection (c)(1) refers to “true threats” of unlawful violence such as bodily
harm, sexual assault, confinement, and restraint, as set forth in subsections (a-3)
and (a-5). As such, the term “threatens” falls outside the protection of the first
amendment. Therefore, we reject defendant’s claim that subsection (c)(1) is
unconstitutionally overbroad because it criminalizes protected speech consisting of
threats to engage in lawful, nonviolent behavior. To the extent that the appellate
court’s decision in Morocho is inconsistent with our reasoning, it is overruled.
¶ 48 2. Mental State
¶ 49 a. Intentional and Knowing Behavior
¶ 50 Defendant next asserts that the “threatens” provision of the amended stalking
statute is unconstitutionally overbroad because it does not include the requisite
mental state for a “true threat.” Placing significant reliance on the Supreme Court’s
decision in Black, defendant asserts that the amended statute exceeds the scope of
a true threat because it fails to require that the accused act with the specific intent
to threaten the victim. We do not agree.
¶ 51 As set forth above, the Supreme Court explained in Black that “ ‘[t]rue threats’
encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Black, 538 U.S. at 359. Although the Supreme
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Court employed the phrase “means to communicate” in defining the nature of a true
threat, it did not identify any specific mental state that would permit the restriction
of such speech without impinging on first amendment protections.
¶ 52 After Black was decided, certain federal courts of appeals addressed that
question and reached divergent conclusions. Compare United States v. Cassel, 408
F.3d 622, 633 (9th Cir. 2005) (interpreting Black as requiring proof that the accused
subjectively intended the communication as a threat), with United States v. Fuller,
387 F.3d 643, 646 (7th Cir. 2004) (adopting an objective standard to hold that a
communication is a true threat if a reasonable person would foresee that the
communication would be interpreted as a threat).
¶ 53 The Supreme Court offered some guidance with its decision in Elonis v. United
States, 575 U.S. ___, 135 S. Ct. 2001 (2015). In Elonis, the defendant was convicted
of violating a federal statute prohibiting the transmission, in interstate commerce,
of a threat to injure the person of another. Id. at ___, 135 S. Ct. at 2004 (citing 18
U.S.C. § 875(c) (2006)). The legal issue that brought the case before the Court was
whether a jury instruction defining a “true threat” was improper because it
permitted a finding of guilt based on the jury’s conclusion that “ ‘a reasonable
person would foresee that the statement would be interpreted as a serious
expression of an intention to inflict bodily injury or to take the life of an
individual.’ ” Id. at ___, 135 S. Ct. at 2007.
¶ 54 The Supreme Court identified the question presented as “whether the [federal
threat] statute also requires that the defendant be aware of the threatening nature of
the communication, and—if not—whether the First Amendment requires such a
showing.” (Emphasis added.) Id. at ___, 135 S. Ct. at 2004. In addressing that
question, the Court noted the statute required that a communication containing a
threat be transmitted in interstate commerce but it did not specify any mental state
with respect to those elements. Id. at ___, 135 S. Ct. at 2008. The Court further
noted that, where a statute fails to identify any mental state for a criminal offense,
federal courts will infer an applicable mental state to differentiate unlawful conduct
from otherwise lawful conduct. Id. at ___, 135 S. Ct. at 2009-10.
¶ 55 In considering the appropriate mental state to be inferred, the Court recognized
that federal courts are reluctant to infer a negligence standard in criminal statutes.
Id. at ___, 135 S. Ct. at 2011. The Court reasoned that the threat statute at issue
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requires that the defendant know that his communication contains a threat because
“ ‘wrongdoing must be conscious to be criminal.’ ” Id. at ___, 135 S. Ct. at 2012
(quoting Morissette v. United States, 342 U.S. 246, 252 (1952)). The Court
concluded that “[t]here is no dispute that the mental state requirement in [the threat
statute] is satisfied if the defendant transmits a communication for the purpose of
issuing a threat, or with knowledge that the communication will be viewed as a
threat.” (Emphasis added.) Id. at ___, 135 S. Ct. at 2012. Based on that conclusion,
the Court determined that it was not necessary to consider any first amendment
issues. Id. at ___, 135 S. Ct. at 2012. Thus, Elonis essentially recognized that a
statutory ban on true threats satisfies the demands of the first amendment if it
requires proof of either specific intent or a knowing mental state. See People v.
Bona, 2018 IL App (2d) 160581, ¶ 32 (interpreting Elonis as implicitly holding that
the intentional or knowing mental state would satisfy the minimum requirements
of a “true threat”); People v. Khan, 2018 IL App (2d) 160724, ¶ 36 (same).
¶ 56 Under the guiding principles set forth in Black and Elonis, we construe the
phrase “means to communicate” as requiring that the accused be consciously aware
of the threatening nature of his or her speech, and the awareness requirement can
be satisfied by a statutory restriction that requires either an intentional or a knowing
mental state. Therefore, the first amendment exception for a “true threat” includes
situations where the speaker understands the threatening nature of his or her
communication and the import of the words used. See Elonis, 575 U.S. at ___, 135
S. Ct. at 2009-12; Black, 538 U.S. at 359-60; see also Carrell v. United States, 165
A.3d 314, 324-25 (D.C. 2017) (en banc); United States v. LaFontaine, 847 F.3d
974, 979-80 (8th Cir. 2017). In other words, we hold that the accused must be
subjectively aware of the threatening nature of the speech.
¶ 57 Here, section 12-7.3(a) of the amended statute specifically includes the
knowing mental state in defining the offense of stalking. 720 ILCS 5/12-7.3(a)
(West 2014). Also, section 4-5 of the Criminal Code of 2012 sets forth the mental
state of “knowledge” and provides, in relevant part, as follows:
“A person knows, or acts knowingly or with knowledge of:
(a) [t]he nature or attendant circumstances of his or her conduct,
described by the statute defining the offense, when he or she is consciously
aware that his or her conduct is of that nature or that those circumstances
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exist. Knowledge of a material fact includes awareness of the substantial
probability that the fact exists.
(b) [t]he result of his or her conduct, described by the statute defining
the offense, when he or she is consciously aware that that result is
practically certain to be caused by his conduct.” (Emphases added.) Id. § 4-
5.
These statutory provisions are consistent with the Elonis Court’s recognition that
the mental state requirement for communicating a true threat is satisfied if “the
defendant transmits a communication for the purpose of issuing a threat, or with
knowledge that the communication will be viewed as a threat.” Elonis, 575 U.S. at
___, 135 S. Ct. at 2012. Accordingly, we conclude that the true threat exception
under the first amendment does not mandate that the accused specifically intend to
threaten the victim and a statutory ban on threats that requires knowing conduct is
not unconstitutionally overbroad.
¶ 58 Arguing for a contrary result, defendant places significant reliance on the
statement in Black that “[i]ntimidation in the constitutionally proscribable sense of
the word is a type of true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily harm or
death.” See Black, 538 U.S. at 360. We note, however, that defendant’s argument
misconstrues the import of Black. The quoted language pertained to a specific
statute that penalized cross burning “with an intent to intimidate a person or group
of persons.” See id. at 347. Thus, the statement on which defendant relies did not
relate to all true threats. Therefore, we reject defendant’s claim that specific intent
to threaten the victim is necessary for a true threat.
¶ 59 Defendant also relies on People v. Goodwin, 2018 IL App (1st) 152045, ¶ 38,
People v. Wood, 2017 IL App (1st) 143135, ¶ 13, and People v. Dye, 2015 IL App
(4th) 130799, ¶ 10, all of which held that a “true threat” requires intentional conduct
by the defendant. We find defendant’s reliance on these cases is misplaced, where
they have improperly expanded the holding in Black and failed to fully consider the
reasoning expressed in Elonis.
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¶ 60 b. Unintentional Behavior and the Negligence Standard
¶ 61 Defendant also contends that the amended stalking statute is unconstitutionally
overbroad where it allows conviction of a speaker who negligently conveys a
message that a reasonable person would understand as threatening. According to
defendant, the prohibition of speech that the defendant “should know” a reasonable
person would interpret as a threat unconstitutionally chills protected speech.
¶ 62 As previously noted, the offense of stalking includes circumstances in which
the accused “should know” that his or her speech would cause a reasonable person
to fear for personal safety or suffer other emotional distress. (Emphasis added.) 720
ILCS 5/12-7.3(a) (West 2014). Although we held in Relerford that negligence may
be an appropriate mental state for imposition of criminal liability (Relerford, 2017
IL 121094, ¶ 22), the question presented here is whether negligence is sufficient to
satisfy the elements necessary for the first amendment exception for a true threat.
Because Relerford was limited to the “communicates to or about” portion of the
statute, we were not required to, nor did we, determine whether the negligent mental
state may be applied to a charge of stalking based on a true threat. See id. ¶¶ 38-39.
¶ 63 In addressing defendant’s argument, we observe that the Criminal Code of 2012
defines criminal “negligence” as the “fail[ure] to be aware of a substantial and
unjustifiable risk that circumstances exist or a result will follow, described by the
statute defining the offense, and that failure constitutes a substantial deviation from
the standard of care that a reasonable person would exercise in the situation.” 720
ILCS 5/4-7 (West 2014). Given our holding that the term “threatens” refers to a
true threat, which requires proof that the accused be consciously aware of the
threatening nature of the speech, a mental state that does not require such awareness
will not suffice. Therefore, we conclude the negligent mental state of “should
know” in section 12-7.3(a) does not satisfy that standard. This conclusion is
supported by Elonis, which rejected the government’s argument that the criminal
negligence standard could be inferred with regard to the federal threat statute at
issue in that case. See Elonis, 575 U.S. at ___, 135 S. Ct. at 2011-12.
¶ 64 Application of the negligence standard would permit prosecution for protected
speech that does not constitute a true threat. Accordingly, we hold that the “should
know” portion of subsection (a) is overly broad and cannot be constitutionally
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applied with regard to a course of conduct that “threatens.”
¶ 65 3. Reasonable-Person Standard Applied to the Victim
¶ 66 Defendant further claims that subsection (a)(2) is unconstitutionally overbroad
because it imposes an objective reasonable-person standard with respect to the
impact of the threatening speech on the recipient. We disagree.
¶ 67 First, we observe that neither Black nor Elonis explicitly rejected a “reasonable
recipient” standard as wholly incorrect or irrelevant in determining whether speech
constitutes a true threat. For its part, Black specifically recognized that “a
prohibition on true threats ‘protect[s] individuals from the fear of violence’ and
‘from the disruption that fear engenders.’ ” Black, 538 U.S. at 360 (quoting R.A.V.,
505 U.S. at 388). As such, the true threat exception is premised on the negative
effects suffered by the recipient. Consequently, the assessment of whether speech
constitutes a true threat mandates that the court consider the effect on the listener.
The analysis in Elonis focused on the issue of which culpable mental state could be
applied in a prosecution under a federal threat statute and concluded that criminal
liability cannot be predicated solely on how the defendant’s speech would be
understood by a reasonable person. Elonis, 575 U.S. at ___, 135 S. Ct. at 2011-12.
¶ 68 In addition, we note that application of the objective standard regarding the
effect of criminal conduct on the victim is not unusual. See 720 ILCS 5/12-1(a)
(West 2014) (providing that “[a] person commits an assault when, without lawful
authority, he or she knowingly engaged in conduct which places another in
reasonable apprehension of receiving a battery”). Also, the reasonable person
standard is employed in section (a-3) of the stalking statute, which defendant has
conceded is constitutional. Id. § 12.7.3(a-3) (imposing criminal liability where the
accused places the victim “in reasonable apprehension” of unlawful violence); see
also United States v. Elonis, 841 F.3d 589, 596-97 (3d Cir. 2016) (holding, on
remand from the Supreme Court, that the government must satisfy an objective
component requiring proof that the defendant transmitted a communication that a
reasonable person would view as a threat); United States v. Dillard, 795 F.3d 1191,
1201-02 (10th Cir. 2015) (recognizing that a true threat may be proven where a
reasonable recipient would conclude that the communication contained a threat of
violence). Accordingly, we find that application of the reasonable-person standard
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as to the harm caused by a true threat is not unconstitutionally overbroad.
¶ 69 4. Adequately Tailored
¶ 70 Defendant finally asserts that, even if the term “threatens” is construed as a
“true threat,” the amended stalking statute unconstitutionally violates the first
amendment because it is not limited to campaigns of stalking that escalate to bodily
harm or death. In support, he relies on the Supreme Court’s decision in R.A.V.,
which held that an ordinance banning hate speech violated the first amendment
despite the fact that it reached only “fighting words.” See R.A.V., 505 U.S. at 381.
Defendant’s argument is without merit.
¶ 71 In R.A.V., the Supreme Court explained that the recognized categories of speech
that fall outside the protection of the first amendment may not serve as “vehicles
for content discrimination unrelated to their distinctively proscribable content.” Id.
at 383-84. The Court further explained that the first amendment does not allow the
government to “impose special prohibitions on those speakers who express views
on disfavored subjects.” Id. at 391. The Court reasoned that the ordinance at issue
was facially unconstitutional because it was a content-based restriction that
prohibited only “fighting words” that “insult, or provoke violence, ‘on the basis of
race, color, creed, religion or gender.’ ” Id. (quoting In re Welfare of R.A.V., 464
N.W.2d 507, 508 (Minn. 1991)). As a result, the ordinance operated as “actual
viewpoint discrimination.” Id.
¶ 72 Here, the amended stalking statute proscribes all speech that “threatens,” which
we have construed as prohibiting only true threats of unlawful violence. See 720
ILCS 5/12-7.3(a), (a-3), (a-5), (c)(1) (West 2014). The prohibition against true
threats protect individuals not only from campaigns of stalking that escalate to
bodily harm or death but also “ ‘from the fear of violence’ and ‘from the disruption
that fear engenders.’ ” Black, 538 U.S. at 360 (quoting R.A.V., 505 U.S. at 388).
Also, as opposed to the ordinance at issue in R.A.V., the stalking statute does not
target only a certain type of true threat or a true threat directed against a particular
individual or group of individuals. Rather, the basis for the restriction “consists
entirely of the very reason the entire class of speech at issue is proscribable, [and]
no significant danger of idea or viewpoint discrimination exists.” See R.A.V., 505
U.S. at 388. Accordingly, the statute does not suffer from the same constitutional
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infirmity recognized in R.A.V. Therefore, defendant’s reliance on R.A.V. is
misplaced.
¶ 73 Based on all of the above, we conclude that the term “threatens” in subsection
(c)(1) is readily susceptible to a limiting construction. See Broadrick, 413 U.S. at
613. We further hold that the provision must be interpreted to refer only to true
threats of unlawful violence. Therefore, the “threatens” provision is not
unconstitutionally overbroad in violation of the first amendment.
¶ 74 C. Substantive Due Process
¶ 75 Defendant also contends that his conviction for stalking must be reversed
because the amended stalking statute is facially unconstitutional in violation of his
right to substantive due process. See U.S. Const., amend. XIV. We do not agree.
¶ 76 1. Innocent Conduct
¶ 77 Defendant argues that the “threatens” provision of the amended stalking statute
violates substantive due process because it criminalizes a vast amount of innocent
conduct that is unrelated to the statute’s narrow purpose, which the legislature could
not have intended to fall within its proscriptions. According to defendant, almost
any knowingly or negligently distressing conduct is a felony where the statute does
not differentiate between lawful and unlawful conduct.
¶ 78 Criminal statutes that potentially punish innocent conduct not related to the
statute’s purpose violate the principles of due process. People v. Madrigal, 241 Ill.
2d 463, 469 (2011) (citing People v. Wright, 194 Ill. 2d 1, 25 (2000)). Therefore,
substantive due process requires that the proscriptions of a criminal statute be
clearly defined. People v. Maness, 191 Ill. 2d 478, 483-84 (2000). To satisfy this
requirement, a criminal statute must be sufficiently definite so that it gives persons
of ordinary intelligence a reasonable opportunity to distinguish between lawful and
unlawful conduct. City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Grayned,
408 U.S. at 108; see also Russell v. Department of Natural Resources, 183 Ill. 2d
434, 442 (1998).
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¶ 79 Defendant’s claim that the statute violates substantive due process because it
sweeps in innocent conduct parallels his first amendment overbreadth argument,
which we have previously addressed and rejected. In light of our holding that the
“threatens” provision relates only to intentionally or knowingly conveyed true
threats of unlawful violence, that provision cannot be deemed as encompassing
innocent conduct. See Black, 538 U.S. at 359-60. Consequently, defendant’s
assertion that the statute does not differentiate between lawful and unlawful conduct
necessarily fails. See generally People v. Crawford, 2019 IL App (1st) 160184, ¶ 39
(construing a similar provision in the cyberstalking statute).
¶ 80 Moreover, contrary to defendant’s assertion, the conduct criminalized by the
statute is directly related to the General Assembly’s goal in adopting the 2010
amendments. The prohibition against a course of conduct consisting of two or more
true threats of unlawful violence implements the legislature’s intent to prevent the
type of conduct that precedes violent attacks against stalking victims. As such, it
proscribes only speech that engenders fear for personal safety and seeks to preclude
conduct that historically has led to homicide. See 96th Ill. Gen. Assem., Senate
Proceedings, May 21, 2009, at 125 (statements of Senator Hutchinson).
Accordingly, we reject defendant’s claim that the “threatens” provision is unrelated
to the statute’s narrow purpose.
¶ 81 2. Vagueness and Arbitrary Enforcement
¶ 82 Defendant further claims that the amended stalking statute violates substantive
due process because the “threatens” provision of the statute fails to distinguish
between conduct that is subject to prosecution and conduct that is not. We disagree.
¶ 83 A constitutional challenge based on vagueness is predicated on the notice
requirement of the due process clause. Grayned, 408 U.S. at 108; Wilson v. County
of Cook, 2012 IL 112026, ¶ 21. Therefore, a statute may be challenged as vague on
either of two grounds: (1) it fails to give fair warning to allow innocent people to
steer clear of its prohibitions or (2) it contains insufficiently clear standards for
those who enforce it and may lead to arbitrary or discriminatory enforcement. Hill
v. Colorado, 530 U.S. 703, 732 (2000); Grayned, 408 U.S. at 108-09; Wilson, 2012
IL 112026, ¶ 21. In addition, a statute is not vague if judicial construction renders
it sufficiently definite to avoid arbitrary or discriminatory enforcement. People v.
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Einoder, 209 Ill. 2d 443, 450-51 (2004); People v. Taylor, 2019 IL App (1st)
160173, ¶ 32.
¶ 84 Also, a due process challenge based on vagueness can succeed only where the
statutory provision is impermissibly vague in all of its applications. Village of
Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95
(1982). Therefore, the determination of whether a statute is unconstitutionally
vague must be decided on the particular facts before the court, and a litigant whose
speech is clearly proscribed cannot successfully assert a due process claim of
vagueness for lack of notice. Holder v. Humanitarian Law Project, 561 U.S. 1, 18-
20 (2010).
¶ 85 Applying these principles here, we conclude that defendant’s claim of
unconstitutional vagueness must be rejected. Given that the “threatens” provision
relates only to intentionally or knowingly conveyed true threats of unlawful
violence, the statute affords fair warning that allows innocent people to know what
is prohibited so they can tailor their conduct accordingly. See Morales, 527 U.S. at
56; Grayned, 408 U.S. at 108. In addition, the prohibition against true threats
provides sufficiently clear standards to avoid arbitrary or discriminatory
enforcement. Hill, 530 U.S. at 732; Grayned, 408 U.S. at 108-09. Further, aside
from his general concerns of overbreadth, which we have addressed and rejected,
defendant does not identify any other term or condition of the statute that is vague
or inherently unclear.
¶ 86 3. Sufficiency of Harm Based on Emotional Distress
¶ 87 Defendant also contends that the amended stalking statute is facially
unconstitutional in violation of due process where it does not mandate that the
victim fear for his or her personal safety. According to defendant, the prohibition
against speech that causes emotional distress is not narrowly tailored to the
legislature’s goal of preventing conduct that may escalate to physical harm or death.
Defendant also maintains that speech that is merely distressing, which is not
actionable under tort principles, does not justify the imposition of criminal liability.
This contention is unpersuasive.
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¶ 88 As we have previously determined, the “threatens” provision of the amended
stalking statute relates only to true threats of unlawful violence such as bodily harm,
sexual assault, confinement, or restraint. Fear for personal safety by the victim is
inherent in an offense based on the communication of a true threat, and fear for
personal safety necessarily includes emotional distress.
¶ 89 Also, the amended stalking statute defines “emotional distress” as “significant
mental suffering, anxiety or alarm.” 720 ILCS 5/12-7.3(c)(3) (West 2014). Given
that definition, we find that the ban on true threats criminalizes only speech that is
integrally related to the General Assembly’s goal of preventing conduct that may
escalate to bodily harm or death. See R.A.V., 505 U.S. at 388 (recognizing that a
prohibition on true threats “protect[s] individuals from the fear of violence, from
the disruption that fear engenders, and from the possibility that the threatened
violence will occur”); see also People v. Sucic, 401 Ill. App. 3d 492, 505 (2010)
(construing the terms “emotional distress” and “mental anguish” in the
cyberstalking statute).
¶ 90 Defendant further claims that subsection (a) violates substantive due process
because the resulting fear or emotional distress is measured by the reasonable-
person standard and not the impact on the actual victim. We reject this assertion for
the reasons expressed above in finding that the reasonable-person standard is not
facially overbroad.
¶ 91 4. Claims Regarding Other Conduct Prohibited by the Statute
¶ 92 Finally, defendant argues that the stalking statute violates due process on the
ground that it permits prosecution for other lawful conduct that does not fall within
the “threatens” provision in subsection (c)(1). In support, defendant posits several
hypothetical examples of conduct that he claims would be subject to prosecution
under the amended statute. Those examples involve lawful, nonviolent conduct
such as monitoring, surveillance, or distressing speech that does not consist of a
threat of unlawful violence. This argument is predicated on a misconstruction of
the purpose and scope of the overbreadth doctrine that is applicable to first
amendment challenges.
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¶ 93 Although a first amendment claim may be based on the speech of others who
are not before the court, there is no similar doctrine that excuses standing to bring
a constitutional challenge premised on due process. See Holder, 561 U.S. at 18-20.
Therefore, outside the limited context of the first amendment, a party who
challenges a statute on the ground that it violates due process must have standing
to do so. People v. Ryan, 117 Ill. 2d 28, 33 (1987) (citing Schall v. Martin, 467 U.S.
253, 268 n.18, (1984)).
¶ 94 Standing requires that the defendant’s conviction in some way results from the
allegedly unconstitutional aspect of the statute. Minnis, 2016 IL 119563, ¶ 13
(citing In re M.I., 2013 IL 113776, ¶¶ 32, 34). Generally, a party may not raise, and
a court will not consider, a constitutional challenge to a statutory provision that
does not affect that party. Id.; see also People v. Terrell, 132 Ill. 2d 178, 211-12
(1989) (holding that “[a] person lacks standing to challenge the constitutionality of
a statute unless he is directly affected by the alleged unconstitutionality” (citing
People v. Haywood, 118 Ill. 2d 263, 275 (1987))). “This traditional rule reflects two
cardinal principles: the personal nature of constitutional rights and prudential
limitations on constitutional adjudication.” Minnis, 2016 IL 119563, ¶ 13 (citing
Broadrick, 413 U.S. at 610-11).
¶ 95 Here, defendant was not found guilty of monitoring Tinch, placing her under
surveillance, or for expressing speech that was merely distressing. Because
defendant’s conviction was not premised on the type of conduct referenced in his
examples, he lacks standing to challenge the constitutionality of the stalking statute
on those grounds. Consequently, we decline to address whether the stalking statute
would violate due process if applied to the conduct or speech described in
defendant’s hypothetical examples. People v. Rogers, 133 Ill. 2d 1, 9 (1989)
(recognizing that “ ‘courts will not entertain objections to an allegedly
unconstitutional feature where the objecting party is not in any way aggrieved’ ”
(quoting City of Chicago, v. Lawrence, 42 Ill. 2d 461, 464 (1969))).
¶ 96 For all of the reasons explained above, defendant’s argument that his conviction
must be reversed on due process grounds necessarily fails.
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¶ 97 D. Sufficiency of the Evidence
¶ 98 Lastly, we address the sufficiency of the evidence against defendant. As we
have held, the subjective mental state applies to the “threatens” provision. Here, the
evidence established that defendant “knowingly engaged in a ‘course of conduct’ ”
by threatening Tinch and her family members with unlawful violence and that he
knew this “course of conduct” would cause a reasonable person to fear for his or
her safety and suffer emotional distress. 720 ILCS 5/12-7.3(a)(2), (c)(1) (West
2014).
¶ 99 The State presented evidence that defendant sent numerous text messages that
included threatening language directed at Tinch and constituted “serious
expression[s] of an intent to commit an act of unlawful violence” toward her. See
Black, 538 U.S. at 539. Specifically, defendant sent Tinch messages stating that “I
can make you suffer”; “start to think more before u talk that s*** will get you hurt
or killed”; “where the f*** are u Cause rode past in seen lights on there”; “You got
my blood boiling”; “I swear b*** if a n*** there its g[o]ing to be one”; “U them
f*** up”; “I hope whoever you got it when I got guns”; “So u called the law.”
Defendant also sent Tinch a photograph of a gun. Tinch testified that those text
messages “scared” and “terrified” her.
¶ 100 In addition, Tinch and her mother testified that, while Tinch’s cell phone was
on speaker mode, they heard defendant threaten to come over and kill Tinch. The
testimony of Tinch’s mother also established that defendant had threatened to “kill
everyone with a banger.” Both women were so concerned that they and all the other
family members who were present immediately left Tinch’s apartment and went to
her mother’s residence. Furthermore, the police were called while they were in
transit. Thus, the behavior of Tinch and her mother demonstrated their reasonable
apprehension with regard to defendant’s threatened behavior.
¶ 101 Moreover, after the police were contacted, an officer met them at Miller’s
residence, and another officer was dispatched to the area near Tinch’s apartment
where defendant was apprehended. Thus, the evidence discloses that defendant
made a threatening phone call to Tinch, which caused her to fear for her safety, and
that she and her mother feared for the safety of their family members. The police
took the threats seriously and responded to two separate locations, and defendant
was aware that the police had been contacted. Based on the record presented, it is
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clear that defendant knew the threatening nature of his text messages and statements
to Tinch and knew that his threats of unlawful violence would cause a reasonable
person to fear for her safety and the safety of her family, which encompasses
significant mental suffering, anxiety, or alarm. We find that the evidence is
sufficient to sustain defendant’s conviction for stalking. Therefore, we affirm
defendant’s conviction.
¶ 102 III. CONCLUSION
¶ 103 In sum, we hold that the term “threatens” as used in subsection (c)(1) of the
stalking statute refers to intentional or knowing threats of unlawful violence that
the accused knows would cause a reasonable person to suffer significant mental
suffering, anxiety, or alarm. Given that such threats constitute true threats, they are
not protected by the right to free speech and may be prohibited without violating
the first amendment.
¶ 104 In addition, we hold that the prohibition against speech that “threatens,” where
the accused “should know” the threat would cause a reasonable person to suffer
significant mental suffering, anxiety, or alarm, does not constitute a true threat and
is unconstitutionally overbroad in violation of the first amendment.
¶ 105 We further hold that the prohibition against speech that “threatens” does not
violate due process, and defendant lacks standing to challenge other portions of the
stalking statute on due process grounds.
¶ 106 We do not decide the constitutional validity of the prohibition against conduct
that does not involve true threats, and we similarly express no opinion as to the
constitutionality of the mental state requirements for such conduct.
¶ 107 Finally, we conclude that defendant’s conviction for stalking is sustained by the
evidence presented at trial. For the foregoing reasons, the judgment of the appellate
court, affirming defendant’s conviction, is affirmed.
¶ 108 Affirmed.
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