In State v. Billings, officially released today, the Appellate Court of Connecticut (Judges Bethany Alvord, Nina Elgo, and Robert Clark), the court rejected defendant's stalking and harassment convictions that were based on defendant's public Facebook conversation with a third party (not the alleged victim). The conversation discussed defendant's possibly releasing incriminating photographs of the victim (who had had an extramarital affair with the defendant, and who had gotten a restraining order against the defendant).
The defendant argued that the stalking charge violated the First Amendment; the state responded that the stalking statute fell within the "speech integral to criminal conduct" exception to the First Amendment; but the court agreed with the defendant:
The operative language of the second degree criminal stalking statute provides in relevant part: "A person is guilty of stalking in the second degree when: (1) Such person knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for such person's physical safety or the physical safety of a third person, or (B) suffer emotional distress …." A "course of conduct" means "two or more acts, including, but not limited to, acts in which a person directly, indirectly or through a third party, by any action, method, device or means, including, but not limited to, electronic or social media, (1) follows, lies in wait for, monitors, observes, surveils, threatens, harasses, communicates with or sends unwanted gifts to, a person, or (2) interferes with a person's property …."
Although it is clear from the language of the stalking statute that it is directed at conduct, specifically, a "course of conduct," it is apparent that a "course of conduct" under § 53a-181d can be established through conduct and unprotected speech alike, similar to that of the criminal harassment statute.
The defendant argues that his stalking conviction was not based on any conduct but was based exclusively on the April 7, 2018 Facebook conversation—a constitutionally protected conversation that he had with a third party on his own Facebook page—and, thus, his conviction violates his first amendment rights. The state disagrees and argues that the defendant's first amendment rights were not violated because the speech contained in his April 7, 2018 Facebook conversation was not protected and the defendant's conviction was based on nonspeech conduct.
Although the state concedes that the defendant's speech contained in the April 7, 2018 Facebook conversation, which forms the sole basis for the defendant's convictions, "does not fall into the unprotected categories of speech of true threats, fighting words, or obscenity," it contends that the speech in question is unprotected because it falls within the speech integral to criminal conduct exception to the first amendment. We are not persuaded.
