Court Rejects "Speech Integral to Criminal Conduct" Justification for Harassment Prosecution

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.

The United States Supreme Court case from which the speech integral to criminal conduct exception mainly emerged, Giboney v. Empire Storage & Ice Co. (1949), established that the first amendment extends no protection to "speech or writing used as an integral part of conduct in violation of a valid criminal statute."  The speech in question in Giboney was a labor union's picketing in an effort to pressure all nonunion peddlers to join.  In furtherance of this goal, the union set out to obtain agreements from all of the wholesale ice distributors in the area to not sell ice to nonunion peddlers. Id. All of the distributors agreed with the exception of Empire Storage and Ice Company, and, thus, the picketing was aimed at this last holdout company. Id. Empire Storage and Ice Company, relying on a Missouri statute that made it illegal to refuse to sell to nonunion peddlers, sought an injunction to stop the picketing, which it obtained. The Missouri Supreme Court upheld the injunction.  The petitioners appealed to the United States Supreme Court, arguing that the statute at issue in that case, as applied to them, violated their first amendment rights.  The court was not persuaded.  It noted that refusal to sell to nonunion peddlers was illegal under the Missouri law, and, thus, picketing was aimed at compelling another entity to break the law. The court stated that "it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."

The contours of the Giboney exception have yet to be clearly defined and have been subject to considerable criticism, especially in light of more recent United States Supreme Court precedent, such as Holder v. Humanitarian Law Project (2010), which appears incongruent with Giboney's rationale. Nevertheless, for the speech integral to criminal conduct exception to apply, the speech in question must, at a minimum, be integral to criminal conduct other than protected speech. It does not apply if a defendant is doing nothing more than speaking.

Here, the state contends that the defendant's conviction was based, in part, on nonspeech conduct. Specifically, the state argues that "the defendant's course of conduct [was] comprised of nonspeech components of logging into his social media account, creating a digital billboard, and choosing to repeatedly post messages, as well as a speech component of the content of the posts." It contends that "[t]he repetitive, cumulative nature of the defendant's posting created something more than the content of the words in the posts, and that is a course of conduct." The state therefore argues that "the speech associated with the defendant's Facebook posts was integral to the criminal conduct of posting approximately thirteen times" on his own Facebook page.

We are not persuaded that the defendant engaged in any nonspeech conduct for which the speech in question could be integral. The record reflects that the defendant engaged in a single Facebook conversation with a third party on his own Facebook page, which occurred after A already had unfriended him on Facebook. It is undisputed that, on the day in question, the defendant did not send any messages directly to A or her family, show up at A's home or place of employment, or cause others to do so. The state argues that, by logging into his own Facebook account and posting on his own Facebook page, the defendant somehow engaged in nonspeech conduct for which the speech in question was integral. Those actions, in and of themselves, however, cannot constitute nonspeech "conduct" for purposes of the speech integral to criminal conduct exception. Rather, they constitute the means by which the defendant spoke in this case. If the very act of posting a message on one's own Facebook page "implicates conduct … then a newspaper article likewise implicates conduct in the sense that a printing press or a computer printer has to put ink on paper …."

In this case, it is clear that the defendant's Facebook posts were not integral to criminal conduct; they were the criminal conduct. See People v. Relerford (Ill. 2017) (concluding that speech integral to criminal conduct exception was not applicable because there was not some other criminal act; content of Facebook posts was criminal act); State v. Shackelford (N.C. App. 2019) (speech integral to criminal conduct exception was inapplicable because "speech itself was the crime"); see also United States v. Osinger (9th Cir. 2014) (Watford, J., concurring) ("The [c]ourt in Giboney made clear that the union's picketing lost its [f]irst [a]mendment protection only because the union was 'doing more than exercising a right of free speech or press. …' If a defendant is doing nothing but exercising a right of free speech, without engaging in any non-speech conduct, the exception for speech integral to criminal conduct shouldn't apply." (Citation omitted.)); United States v. Cook2 (N.D. Miss. 2020) ("[T]he government has not alleged that [the defendant] ever directly contacted any of the subjects of his Facebook posts. Rather, [the defendant] is being prosecuted solely on the content of his public posts—not the act of posting."). If one were to remove the content of the speech altogether in the present case, one would be left only with the defendant sending a few Facebook posts back and forth with a third party, unrelated to the only identified victim, A. That alone would not, and could not, serve as a basis for violating the statute. It is clear that "[t]he only 'conduct' which the [s]tate sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech' …."

The state relies, in large part, on a number of federal court decisions that upheld convictions under the federal cyberstalking statute. Those cases, however, are materially different from the present case. The key distinction between those cases and the present case is that the defendants in those cases engaged in unprotected nonspeech conduct, in addition to speech, and the speech in question was integral to some criminal offense. Unlike in the present case, the defendants in those cases were not convicted solely on the basis of their speech. See United States v. Osinger (Watford, J., concurring) (The defendant's course of conduct "began in Illinois when he harassed [the victim] by repeatedly showing up at her home and workplace, despite her efforts to avoid him. It continued after she moved to California, initially through a string of unwelcome and implicitly threatening text messages, and then through a fake Facebook page and emails sent to [the victim's] co-workers. … What makes this a straightforward case is the fact that [the defendant] committed the offense by engaging in both speech and unprotected non-speech conduct."); United States v. Sayer (1st Cir. 2014) (defendant's conduct included creating false online advertisements and accounts in Jane Doe's name or impersonating Jane Doe on Internet and enticing men to show up at her house for sexual encounters); United States v. Petrovic (8th Cir. 2014) (defendant's harassing and distressing communications were integral to criminal conduct of extortion).

The reason why courts require something more than otherwise protected speech in order for the speech integral to criminal conduct exception to apply is clear. Without such a requirement, states could criminalize traditionally protected forms of speech and then prosecute individuals under that exception on the basis of the theory that the individual's speech constitutes the conduct integral to the commission of the offense…. "[U]nder the broadest interpretation, if the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense[.]" … A number of courts that have applied the speech integral to criminal conduct exception, including cases on which the state principally relies, have recognized this danger and cautioned against interpreting the exception too broadly. Accepting the state's argument in this case would be a "recipe for clandestinely denying full [f]irst [a]mendment protection to all speech in all media."

Because it is clear that the defendant's stalking conviction was predicated solely on constitutionally protected speech, his conviction cannot stand. See State v. Parnoff (Conn. 2018) ("[t]he first amendment bars the states from criminalizing pure speech, unless that speech falls into one of a few constitutionally unprotected categories" (emphasis omitted)); State v. Moulton (Conn. 2013) ("[W]e recognize that our interpretation of § 53a-183 (a) (3) permitting a jury to consider the caller's speech in determining whether the call was alarming or harassing potentially gives rise to first amendment concerns. Such constitutional concerns, however, readily may be eliminated by limiting the reach of the statute to speech, like true threats, that is not protected by the first amendment."). Accordingly, the judgment with respect to the defendant's stalking in the second degree conviction must be reversed.

The court applied a similar analysis to the defendant's criminal harassment conviction. The court upheld, however, the conviction for violating the restraining order, which seemed to stem from the same conversation, apparently because the defendant didn't make the First Amendment argument as to that charge (see footnote 14).