Is Stalking Protected Under the 1st Amendment?

Under California Penal Code Section 646.9, stalking is a crime that is not protected by the First Amendment. Stalking is conduct that creates fear and has no legitimate purpose so it is not protected.  Think of the classic law school example that Yelling FIRE in a crowded theater is not First Amendment protected speech.  

However, to avoid constitutional issues the crime has very specific elements that must be proven for a conviction. Every one of these elements has to exist at the same time and every one of these elements must be proven by the prosecution beyond a reasonable doubt.  

Willful and Malicious Conduct:

The defendant must have willfully and maliciously harassed or repeatedly followed another person. This means that the harassment has to be on purpose. It is not enough that the person’s conduct be deliberate. The person must simultaneously be acting on purpose in with a malicious purpose as well.

Credible Threat:

The defendant must have made a credible threat, either verbally, in writing, through conduct or by these acts in combination. The threat can’t be accidental. It has to be intended to cause upset. The defendant must have the actual intent to place the victim in reasonable fear for their safety or the safety of their immediate family.

Course of Conduct:

The stalking behavior must involve a pattern of conduct (two or more acts) that demonstrates a continuity of purpose.

No Legitimate Purpose:

The behavior has to be proven to be without a legitimate purpose. The prosecution must prove the lack of legitimate purpose beyond a reasonable doubt. This is the hardest part for the prosecution. The actions must serve no legitimate purpose and these very same actions must seriously alarm, annoy, torment, or terrorize the victim.

Fear for Safety:

The victim must reasonably fear for their safety or the safety of their immediate family due to the defendant's actions. This is the easiest element to prove since a victim need only state he/she was fearful. It can be challenged by the defense which will access social media, texts and other communications that may show a lack of fear or even an interaction with the so-called stalker initiated by the so called victim.

There are obviously very real instances of stalking but because of constitutional protections conduct that is truly intended to harm and objectively is stalking may fall through the cracks. Criminal defense lawyer defends people falsely accused of stalking and he also represents people who are victims of stalkers who try to hide behind the 1st Amendment.