The Volokh Conspiracy

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Free Speech

Delaware Court on the First Amendment Exception to "Speech Integral to Criminal Conduct"

"Some courts have incorrectly used this exception to rationalize upholding a statute that criminalizes speech ... simply because their legislature passed a law labeling it criminal. The limited line of United States Supreme Court cases that have addressed this exception in no way supports such a broad reading."


Friday's decision in State v. Reeves, decided by Judge Jeffrey Clark (Del. Super. Ct.), evaluates the Delaware stalking law under which

he or she (1) "threatens, or communicates to or about another" on 3 or more separate occasions, (2) in a manner that would cause a reasonable person to fear for their safety or experience significant mental anguish or distress.

The court concluded that the statute would be unconstitutional as applied to certain contexts:

[T]he Statute would enable the prosecution of a doctor who tells a patient on at least three occasions that, although an operation may be necessary to save the patient's life, the effect of the operation will cause accompanying physical pain or injury. Likewise, the Statute would criminalize three complaints by a restaurant's customer on social media about poor service at the restaurant, that in turn, causes the owner severe mental anguish because his business failed as a result. The Statute would also criminalize when a person posts critical comments about another, at least three times, on social media when those comments would reasonably cause significant mental distress to another….

And the court had this to say about the state's argument that the law was constitutional because it only applied to "speech integral to criminal conduct":

In broad terms, the State seeks to characterize [the statute] as falling under [the] {speech integral to criminal conduct} exception in its entirety….

As an overview, the speech integral to criminal conduct exception is not as broad as the State contends. Nor is it an antidote, in and of itself, to Mr. Reeves' facial challenge. Typically, this exception has been limited to criminal conduct such as bribery, extortion, conspiracy, or the solicitation of others to commit a separate crime. For example, there is no First Amendment violation when the government prosecutes a defendant based upon a statement such as "pay me money, or I will report you for a crime." Nor is there First Amendment protection for a defendant's statement to a law enforcement officer offering money to avoid arrest. The speech in those examples is integral to criminal conduct in the same way as is speech used to extort or solicit another to commit a crime. Such speech deserves no First Amendment protection….

Some courts have incorrectly used this exception to rationalize upholding a statute that criminalizes speech … simply because their legislature passed a law labeling it criminal. The limited line of United States Supreme Court cases that have addressed this exception in no way supports such a broad reading.

First, in Giboney v. Empire Storage & Ice Co., the Supreme Court explained that, "[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." There, the Court examined speech by a defendant used solely to solicit another to violate the law. Nothing in the Giboney decision supports broadening this exception to permit a legislature to define all speech as criminal.

After Giboney, the Supreme Court revisited the exception in United States. v. Williams. There, the Court considered a First Amendment challenge to a statute that criminalized a defendant's offer to distribute illegal child pornography. In Williams, the Court held that, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

Then, more recently, in U.S. v. Hansen, the Supreme Court applied the speech integral to criminal conduct exception while explaining that speech intended to bring about a particular unlawful act has no social value and is, therefore, unprotected. Once again, Hansen fits within the historical pattern for this exception by applying it to the solicitation of another crime: an immigration law violation. All of the limited mandatory precedent applying this exception relies on one constant: the requirement that the speech be necessary to the commission of a totally separate crime.

The State did not fully explain its position regarding how [the stalking statute] could be considered a statute that criminalizes only speech integral to criminal conduct. Rather, it stresses that the General Assembly included speech and conduct within the definition of course of conduct. In that way, the State seems to contend that speech becomes conduct simply because the General Assembly defined it as such, thus ending the inquiry.

Several courts and commentators have recognized the difficulty of interpreting this exception so broadly because of the circularity of reasoning required to do so. {See, e.g., U.S. v. Matusiewicz (D. Del. 2015) ("[I]t is important that [the court] avoid interpreting Giboney's exception too broadly. Under 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. That interpretation would clearly be inconsistent with the First Amendment[.]"); see also Eugene Volokh, The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981, 1036 (2016) (arguing that it is inappropriate to apply Giboney to harassment and stalking statutes which allow speech to be criminalized based upon its offensive nature to its recipient, when speech that is "intended to annoy, offend, or distress does not help cause or threaten other crimes, the way solicitation or aiding or abetting does.").} For instance, the United States Court of Appeals for the Eight Circuit explained the pitfalls of such an application in U.S. v. Sryniawski, The Eight Circuit then addressed the need to limit the exception as follows:

Congress may not define speech as a crime, and then render the speech unprotected by the First Amendment merely because it is integral to speech that Congress has criminalized. To qualify as speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense and that does not involve protected speech."

As recognized by the Eight Circuit, were this Court to accept such an interpretation of this enumerated category, a legislature could define any type of speech as unlawful and supersede the First Amendment. That would be the antithesis to constitutional primacy over statutory law. It would permit mere statutes to swallow the First Amendment.

In Mashaud v. Boone, the District of Colombia Court of Appeals similarly rejected the argument that the District of Columbia's stalking statute permissibly curtailed speech "because it was integral to a criminal act— namely, stalking." There, the court characterized the argument as "fatally circular" and noted that, "[w]hile it is true that the First Amendment does not protect speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense that does not involve speech."

The State identifies case law in several states that have upheld applications of their statutes on the basis that the speech proscribed by the statute was speech integral to criminal conduct. For instance, in State v. Labbe, the Supreme Court of Maine examined the validity of Maine's stalking statute in light of Counterman. The Labbe court found that based upon the facts of that specific case, it was the defendant's "actions, not his words, that constituted the 'course of conduct' for which he was convicted and which cause the victim to suffer serious inconvenience and emotional distress." The Maine court also opined that some of the phone calls made by the defendant and directed toward the victim in Labbe were not really speech at all. Many of the calls were non-communicative because they consisted of the defendant's repeated calls and hang ups, leaving dead air, and breathing into the phone. The Labbe decision, although couched as a facial challenge, came after trial and more appropriately involved an as-applied analysis. Some court decisions, such as the Maine court in Labbe, have incorrectly blurred the difference.

The State also relies on State v. Hemmingway, where the Court of Appeals of Wisconsin held that because a defendant's speech was "incidental to and evidence of his intent to engage in a course of conduct that he knew or should have known would instill fear of violence in [the victim,] such stalking conduct does not trigger First Amendment scrutiny or protection." In essence, the Wisconsin court found valid a state legislature's statutory override of First Amendment protection simply because it labeled speech as criminal conduct. As in Labbe, the Wisconsin court in Hemmingway applied the facts of an individual case developed after trial, while couching its decision as a facial one. The authority cited by the State is unpersuasive because this exception does not properly permit a state legislature unrestricted license to define speech as criminal by redefining it as conduct….

The court nonetheless concluded that the overbreadth of the statute wasn't substantial enough, relative to its legitimate sweep, to make the statute unconstitutionally overbroad. Moreover, no as-applied challenge was brought in this particular motion (and, judging by the alleged facts, I think it likely that such a challenge would fail):

On balance, components of the State's prosecution of Mr. Reeves may fall, in part, within the speech integral to criminal conduct exception. {For instance, the State charges Mr. Reeves with an act of intimidation. To the extent that speech was used to intimidate the alleged victim into not filing a complaint against him, that application may fall within the speech integral to criminal conduct exception. That crime, in turn, may qualify as a component act within Mr. Reeves' alleged course of conduct that amounts to stalking.}

As a result, the prosecution can continue. But I think the court was quite right to reject the argument that a law criminalizing (for instance) speech that "communicates … about another" three or more times, "in a manner that would cause a reasonable person to … experience significant mental anguish or distress," is constitutional simply because such speech is integral to the criminal prohibition itself.