Dickinson Law Review
Summer, 1995
99 Dick. L. Rev. 1071 COMMENT: Applying Stalking Statutes To Groups - A First Amendment
Freedom Of Speech Analysis Thomas J. Nehilla I. Introduction On March 10, 1993, David Gunn, a doctor who performed abortions in Florida, was shot in the back and killed by an anti-abortion protester outside the clinic where he worked. n1 On March 31, 1993 in North Carolina, Cathy Ann Rider, a leader of the South Carolina Missionaries to the Unborn, was charged with stalking n2 Lorraine Maquire, director of the Charleston Women's Medical Clinic. n3 In 1993, Barbara Baldwin, a Planned Parenthood leader, accused two members of an anti-abortion group of stalking under Rhoad Island laws.

n4 Government authorities in Minnesota recently applied their new stalking law against four pro-choice activists n5 who followed members of an anti-abortion group. n6 When most people think of stalking, they picture an individual in the darkness of the night intimidating and following another individual, n7 but [*1072] groups can also be guilty of stalking.

n8 However, this does not necessarily mean all group members will be charged with stalking. Only those individual group members whose actions fall within the definition of stalking will be held accountable. Of course, the group member or members charged with stalking may claim any rights guaranteed to the group by the Constitution. n9 The application of a stalking law to an individual stalker has faced constitutional challenges over the last few years. n10 These challenges, among others, will persist in the application of stalking law to groups. As a result, group members charged with stalking contest the statutes' constitutionality claiming the laws violate their First Amendment right to free speech. n11 Conversely, the stalker's victim contends that their right to be left alone is infringed by the group's activity. n12 In light of this conflict, this Comment discusses whether a group's First Amendment right to free speech outweighs an individual's right to be left alone. In order to accomplish this, the Comment focuses on both the content-neutral n13 and content-based n14 freedom of speech analyses.

This Comment argues that the stalking statutes do not violate a group's freedom of speech. Section II provides the history of stalking [*1073] laws and the reasons for their creation. Section III examines the nature of various state stalking statutes. Section IV provides a brief overview and history of the First Amendment right to free speech. Sections V and VI examine the constitutionality of stalking statutes under both the content-neutral and content-based First Amendment freedom of speech analyses. Finally, Section VII concludes that the stalking statutes do not violate a group's First Amendment right to free speech because the statute would pass either a content-neutral or content-based test.

II. The Evolution of Stalking Laws In 1990, California enacted the first stalking statute n15 in the United States in response to the unrelated murders of six young women.

n16 Robert Bards, an obsessed fan, murdered Rebecca Schaeffer, a young actress and a co-star of the television show My Sister Sam. n17 Schaeffer's stalker repeatedly sent her threatening letters and followed her on several occasions n18 prior to shooting her on the doorstep of her home on July 18, 1989. n19 The other five murders occurred soon after Schaeffer's death, and they were all committed by the intimate partners of the victims. n20 Like Schaeffer, these five women were also stalked before they were killed. n21 This section discusses two issues: The motivating forces behind states ratifying stalking statutes, n22 and the failure of traditional civil and criminal remedies to address the often violent behavior that has become analogous with the act of stalking. n23 A. The Motivating Forces Behind the Enactment of Stalking Statutes Forty-six other states have followed California's lead since 1990 by enacting their own stalking laws. n24 The impetus behind these laws have been events similar to those that occurred in California in which attackers harassed and killed their victims. n25 Because, stalking has only recently been recognized as a crime, there are very few statistics on the subject. n26 The current data suggests that about five percent of women in the general public will be stalked.

n27 Although women do stalk men, n28 most of the individuals who are stalked are women, n29 and the stalker is usually a husband, an ex-boyfriend n30 or other acquaintance. n31 Further, while celebrities are frequently stalked by obsessed fans, n32 most victims are ordinary people stalked by individuals, n33 with an increasing number of individuals claiming to be stalked by members of a group. n34 Researchers estimate that at least 200,000 people in the United States will stalk someone this year. n35 As these statistics show, stalking presents a very serious problem. As the following discussion indicates, pre-existing laws and remedies failed to adequately address stalking behavior and forced the enactment of stalking laws.

B. Civil and Criminal Remedies Available to Victims Although stalking is a growing problem, critics attack the enactment of the stalking laws. n36 One of the criticisms is that there are civil remedies and criminal laws that could be utilized to put an end to an individual's stalking behavior. n37 However, these critics fail to recognize that existing remedies and laws have grossly failed the victims of stalking time and time again. n38 1. Civil Remedies Some civil relief may be available to the victims of stalking. For example, the victim may obtain a restraining order or sue for damages under a claim of assault, trespass, invasion of privacy, or intentional infliction of emotional distress. n39 Of course, a victim choosing to pursue civil remedies, may be faced with expense, time, and enforcement difficulties. n40 Civil relief can be expensive, and victims may not have the financial resources required to try a successful case. n41 Nevertheless, even if the victim wins and is awarded damages, there is no guarantee the stalker will cease his behavior or pay the damages.

n42 Additionally, it can take [*1076] a considerable amount of time to obtain relief. n43 This delay may allow the perpetrator to continue stalking the victim, and consequently, the victim remains in the same dangerous and unsure position as before the filing of the suit. n44 Furthermore, restraining orders rarely succeed in protecting a victim, especially if the stalker merely choses to ignore the order. n45 In addition, the courts are unable to protect the victim at all times, and the stalker faces very little deterrence from violating the order. n46 2. Criminal Relief Harassment laws may provide stalking victims with criminal relief, but often times, these laws prove to be ineffective. n47 In most states, harassment laws are only used in situations where the harassment is done by mail, telephone or other electronic device.

n48 A harassment statute fails to prohibit a victim from being followed. n49 Furthermore, in those states where harassment laws would extend to the typical activity of the stalker, punishment produces minimal deterrence for a stalker. n50 Although harassment laws may address demeanor similar to that [*1077] addressed by stalking statutes, stalking statutes are specifically defined to address the fear and intimidation caused by the stalking behavior. n51 Therefore, despite the availability of both civil and criminal relief, these channels do not provide appropriate protection in many circumstances. These gaps in the existing laws inspired states to enact stalking statutes. n52 As the next section demonstrates, these new laws are designed to remedy the inadequacies of the existing laws by specifically addressing the behavior that constitutes stalking.

III. Content and Application of State Stalking Laws While each state enacted its own individual stalking statute, most of the laws have some general similarities. n53 For instance, almost all of the stalking statutes require the stalker to either "willfully, maliciously and repeatedly follow[] or harass[] another person" n54 or "willfully and repeatedly follow[] or lie[] in wait for such other person." n55 Additionally, the laws require the stalker either to "make[] a credible threat with the intent to place [the victim] in reasonable fear of death or great bodily injury" n56 or to "engage[] in conduct with the intent to cause emotional distress to another person." n57 Similarly, most states define harassment as "a knowing and willful course of conduct directed at a [*1078] specific person which seriously alarms, annoys, harasses, or terrorizes the person, and which serves no legitimate purpose." n58 "Course of conduct" is generally defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." n59 Therefore, depending on how the particular statute defines stalking will have a proportionate effect on what activity is covered. On the one hand, if a statute designates "following or harassing" as stalking, then prohibited behavior will include following an abortion clinic worker to and from work and making repeated phone calls and threatening that clinic worker. n60 On the other hand, if the statute limits stalking to merely actions of "repeatedly following or lying in wait," then probibited behavior only includes following another individual but will not include the mere threatening or harassing of an individual. n61 Moreover, a stalking statute that requires a person to place another in "reasonable fear of death or great bodily injury" applies to a more narrow field of behavior than a statute that only requires a victim to experience emotional distress.

n62 For example, skinheads who stalk and cause a Jewish man fear or concern may face charges under the latter stalking law but not the former. n63 Varying the definition of stalking affects the statute's utilization. However, no matter how the statutes are defined, they are applicable to group activities. n64 States recognized this applicability, and attempted to avoid constitutional challenges by refining the usage of the statutes. n65 For instance, some states declared that harassment does not pertain to "legitimate purposes"

n66 and that course of conduct does not include "constitutionally protected activity." n67 States which limit their definitions allow potential stalking behavior such as police or private investigating activities because the activities serve a legitimate purpose.

Therefore, whether the stalking laws can be applied to a group hinges on the question of whether the actions of a group are protected under a constitutional provision, like the First Amendment freedom of speech clause, or whether the actions serve a legitimate purpose. n68 The next section discusses the possibility that a stalking statute, by regulating speech, infringes on First Amendment rights. The analysis of a stalking statute will depend on whether it is determined to be content-neutral n69 or content-based legislation. n70 IV. Determining When Speech Can Be Regulated--A Brief History of The First Amendment Right To Free Speech "Congress shall make no law . . . abridging the freedom of speech."

n71 The purpose of the First Amendment was to insure the free flow of ideas and to deny the Government the opportunity to censor any speech.

n72 Over the years the United States Supreme Court has reaffirmed these principles by vigorously striking down regulations on speech.

n73 However, this reaffirmation has not been absolute, and the Supreme Court has recognized some exceptions to these general principles.

n74 Specifically, the Court has recognized that an ordinance or regulation that is content-neutral will be upheld as long as it meets certain standards. n75 Similarly, if it is determined that the regulation is content-based, the court may still find it constitutional if it qualifies as a recognized exception.

n76 The four exceptions recognized by the Court for content-based regulations are incitement to riot (or the clear and present danger test), n77 obscenity, n78 libel n79 and fighting words. n80 A regulation on speech that does not fit into one of these exceptions will be strictly scrutinized and will probably fail. n81 Accordingly, the following sections first consider the stalking statute within a content-neutral analysis and then apply a stalking statute within a content-based analysis.

V. Viewing the Stalking Statute as Content-Neutral for Purposes of a First Amendment Analysis When a court reviews a statute that regulates speech or expression, the first determination the court must make is whether the statute is content-neutral or content-based. n82 If the court concludes that the statute is content-neutral then the statutes must comply with four elements to be considered constitutional. n83 The first element in the content-neutral analysis determines the "place" or the nature of the forum the speaker seeks to employ. n84 Specifically, the court determines if the forum in which the speech takes [*1081] place is a traditional public forum, a public forum created by government designation or a non-public forum. n85 The other three elements are: that the statute furthers a substantial or significant state interest, n86 that the restriction is narrowly tailored to serve the significant interest, n87 and that it leaves open ample alternative channels of communication. n88 The court will uphold the regulation if all four elements are satisfied.

The Supreme Court in Frisby v. Schultz demonstrated how to conduct this content-neutral analysis. n89 In Frisby, the Court had to determine the constitutionality of an ordinance prohibiting picketing "before or about the residence or dwelling of any individual." n90 The appellees, pro-life activists, were arrested pursuant to an ordinance when they attempted to express their views on a public street outside the residence of an abortion doctor. n91 The Court found that the primary purpose of the ordinance was to protect and preserve the home. n92 The town enacted the ordinance because it determined that residential picketing caused emotional distress and had "as its object the harassing of the occupants." n93 The Court, using a content-neutral analysis, concluded that the ordinance was constitutional because it met the four elements of a content-neutral analysis. n94 The Frisby decision presents the typical content-neutral analysis used by courts. n95 The issues raised in Frisby closely parallel those that a stalking statute will face on a constitutional challenge because both concern a regulation of speech and conduct. n96 A. The Determination of Content-Neutrality The Court in Frisby classified the statute as content-neutral because it prohibited all picketing before or about a residence. n97 The Court arrived at this decision because the statute did not distinguish between prohibited and permitted speech on the basis of content. n98 Stalking statutes should also be declared to be content-neutral because they prohibit only those actions defined in the statute, and as such, the intent would only be to control the actions of the group and not the group's speech or expression. n99 Even though an individual's or group's speech may incidentally be restricted, the primary purpose of a stalking statute is to control the harassing actions of the individual or group. Consequently, no matter what type of speech a group engages in, if they are in violation of the statute, their actions can be prohibited. n100 "Neutral" is defined as not being aligned "with a political or ideological grouping . . . indifferent . . . impartial." n101 Hence, because stalking statutes are indifferent or impartial as to their application to any group's "speech," they are content-neutral. n102 B. Determining the Public Forum After classifying the ordinance as content-neutral, the Frisby Court had to determine whether the forum where the picketing took place constituted a traditional public forum, n103 a public forum created by government designation, or a non-public forum. n104 The type of forum directly affects which test a court utilizes to determine a regulation's constitutionality. n105 The most stringent standard is applied to statutes that attempt to regulate speech in traditionally public places. n106 This is true because public places "have immemorially been held in trust for the [*1083] use of the public and, . ., have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." n107 The Frisby Court classified the forum as a traditional public forum because the anti-abortion group wanted to picket on public streets and sidewalks in front of the doctor's residence. n108 The Court emphasized that public streets and sidewalks constitute the "archetype" of the traditional public forum because they have historically been used for public assembly and debate. n109 After determining that the ordinance was a regulation of a traditional public forum, the Frisby Court applied the most stringent standard to determine if the ordinance served a significant state interest, was narrowly tailored to serve that purpose, and left open ample alternative channels of communication. n110 The Court found all of these elements present, and endorsed the ordinance's constitutionality. n111 Consequently, any activity that constitutes speech and occurs on public streets, sidewalks or other public areas is considered to be in a traditional public forum. n112 Therefore, the stalking statutes will be declared to be within the traditional public forum because actions that violate these laws are usually performed on public streets, sidewalks, parks, roads, or schools. n113 Accordingly, stalking laws, like the Frisby ordinance, will be strictly scrutinized to determine if they serve a significant state interest, are narrowly tailored to serve that purpose and leave open ample alternative channels of communication.

C. The State Must Have A Significant Interest To Protect.

In Frisby, the Court found that the state interest which was addressed by the ordinance was the protection of residential property, and concluded that this is a significant governmental interest. n114 A state's concern in protecting the privacy and tranquility of the home is of the highest priority. n115 Although stalking statutes are intended to safeguard a person's privacy and well-being in the home, they are also intended to protect the privacy and well-being of the person in public. n116 Therefore, the reasons for upholding the ordinance in Frisby give important insight into what behavior the court considers to be a significant state interest. n117 By examining the stalking laws themselves, the courts must determine whether the states have a significant interest which is in need of protection. n118 In most states, the creation of a stalking statute is preceded by a horrifying story of murder. n119 As a result, the statutes were created to deal with the ever increasing problem of violence that plagues not only celebrities but more often ordinary citizens. n120 The Supreme Court has found that residential privacy is a significant government interest because it serves to protect the unwilling listener. n121 The Frisby Court stated "although in many locations, we expect individuals to simply avoid speech they do not want to hear . . ., the home is different."

n122 The reason for this difference is that those within the home are deprived of the option of avoiding the unwanted speech. n123 The victims of stalking are forced to deal with a similar predicament because the stalker will not allow them to simply avoid the speech they do not want to hear. Stalking statutes are designed to address the very behavior the Frisby Court expected people to be able to avoid. n124 States have acknowledged that there are occasions when an individual simply cannot avoid the unwanted speech because they are continuously plagued by a stalker's "speech." n125 Accordingly, these stalking laws protect unwilling listeners who are powerless to avoid the speech the [*1085] group inflicts on them.

n126 Consequently, the state finds itself in a situation where it has a significant interest in protecting its citizens from unwanted and potentially dangerous speech. n127 These statutes also protect the victim from violence that usually arises as a climax of stalking behavior. n128 As Senator Cohen stated "stalking is also unique because it is often a series of acts that escalate into violence." n129 While it is true that the Frisby decision focused on the home, it is not unreasonable to conclude that the state has a significant interest in protecting unwilling listeners of speech when that speech would also constitute harassment.

As a result, when stalking statutes are used against groups, they serve two purposes. The first purpose is to protect the unwilling listener who cannot avoid the speech. n130 The second is to protect the victim from the violence that is more often than not the end result of such behavior. n131 Under these circumstances, the state has a significant interest in protecting its citizens from these types of behavior.

D. The Law Must Be Narrowly Tailored To Serve The Significant State Interest The next consideration in a traditional public forum test is whether the law is narrowly tailored to serve the state interest.

n132 A statute is considered narrowly tailored if it eliminates no more than the precise source of the "evil" it seeks to remedy. n133 Thus, a statute can call for a complete ban on speech only if every action it prohibits makes up the targeted "evil." n134 In Frisby the ordinance was narrowly tailored because it only prohibited picketing focused on a particular residence. n135 The Court would not allow a general ban on all residential picketing because such a ban would not be narrowly tailored to serve the state interest of protecting the private residence and the unwilling listener.

n136 Additionally, a general ban would have prohibited the flow of information to the public. n137 Such an ordinance would not merely eliminate the targeted evil of residential privacy, but would deprive the whole community of the group's message. n138 The Frisby ordinance banned picketing that intruded into privacy but did not ban picketing that was intended to give information to the general public.

n139 The stalking statutes seek to obtain the same goal by prohibiting only the "speech" which is no longer intended to distribute a message to the general public. n140 When the group's intent is to cause an individual fear and intimidation, the stalking statutes will prohibit the "speech." n141 For example, Randall A. Terry, the founder of Operation Rescue n142 and the nation's best known anti-abortion leader, stated that his organization would "do everything we can to torment these people [doctors and staff of abortion clinics]" and would "expose them, . . . humiliate them, . . . disgrace them, which is our right." n143 This reasoning is equally applicable to the Ku Klux Klan, or any other hate group, who target a specific individual, family, or homestead instead of distributing their message to the general public. n144 It must be concluded that if a group's actions can be classified as "harassing or following" and the actions cause emotional harm or fear of bodily injury," then the "speech" is not intended to convey a message to the public. On the contrary, the intent must be to cause intimidation or harassment and such behavior cannot be protected.

] Some groups may argue that their intent is not to cause fear or intimidation, and they legitimately intend to educate the public.

n145 The Frisby Court addressed this argument by stating that regardless of the communicative intent of the group, the residential picketing still had the same offensive effect. n146 The picketing caused "the home [to] become[] something less than a home when and while the picketing . . . continue[s] . . . . [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility." n147 Stalking behavior of a group can have similar, if not greater, psychological effect on an individual. Stalking poses the additional threat that the group or the stalked victim may resort to violence. n148 The victims of stalking live with the fear of knowing members of a group may follow or harass them or their children at any time. n149 This type of activity transcends violating the privacy and tranquility of the home to include badgering the individual everywhere she goes.

Under these circumstances, the stalking statutes must be deemed narrowly tailored for the intended purpose. The only speech prohibited is that which establishes the "evils" of stalking. All stalking statutes require behavior that constitutes "following or harassing"

and causes emotional distress or a reasonable fear of bodily harm.

n150 This combination narrows the application of the statutes to a limited amount of actions. The statutes do not interfere with a group's freedom of expression because they are invoked only when the group's "speech" includes intimidation and fear. n151 For example, if a group, like a labor union or abortion group, is engaged in picketing a premises but is not engaged in harassing behavior then the statutes are not applicable. Furthermore, even if the group is engaging in harassing behavior, the statutes may not apply unless the individual can prove that a reasonable person in similar circumstances would also experience emotional harm or fear of death or bodily injury. n152 These requirements narrowly tailor the statutes' application only to those actions that represent the "evils" of stalking.

E. There Are Still Ample Alternative Channels of Communication Open to the Groups The final part of the traditional public forum test is that the statute must leave open ample alternative channels of communication.

n153 The Frisby Court found that this element was very easily met because the ordinance prohibited only picketing in front of a particular residence. n154 Therefore, the picketers in Frisby were free to conduct their activity anywhere else, as long as the picketing was not focused on one residence. n155 Analogously, the stalking statutes only prohibit "speech" that can be defined as stalking. n156 The statutes permit a number of alternatives for the group to express their views. For example, a group can picket, pass handbills, carry signs, or express their views in any other fashion as long as they do not violate the statute. These statutes are not intended to punish any group's thoughts, but instead punish actions that harass or intimidate. n157 Specifically, the state's interest is to address the harms that are caused by stalking and not to suppress beliefs or views with which it disagrees.

n158 When the group's actions move from speech to other types of activities that produce special harms distinct from their communicative impact, they are no longer protected by the constitution. n159 VI. Viewing The Stalking Laws As Content-Based Through A "Fighting Words" Doctrine Analysis If the stalking statutes are viewed as being regulations based on content, n160 then they would have to be considered "fighting word"

statutes in order to be constitutional. n161 Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace . . . . Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." n162 Simply, "fighting words" are those words which could cause the hearer of the speech to resort to violence or a breach of peace. Though the "fighting words" doctrine has come under some criticisms over the years, n163 the United Supreme Court reaffirmed its use in the case of R.A.V. v. City of St. Paul. n164 In this case, the petitioner, R.A.V., a member of the skinheads, allegedly made and burned a cross on the lawn of an African-American family. n165 He was charged under the St. Paul Bias-Motivated Crime Ordinance. n166 The petitioner challenged the law on the grounds that it was content-based and as such was facially invalid under the First Amendment. n167 The Minnesota Supreme Court limited the scope of the law to be applicable only to fighting words and held the law to be valid. n168 The United States Supreme Court accepted Minnesota's determination that the law only applied to fighting words but still found the statute unconstitutional. n169 Justice Scalia, writing for the majority, found the ordinance to be facially unconstitutional because it proscribed speech entirely on the basis of subject matter.

n170 The opinion of the divided Court would be applicable to a stalking statute that is declared to be content-based and as such must be examined.

A. The Existence Of "Unprotected" Classes Of Speech In R.A.V., the Court agreed that there are categories of speech that are of little value to society and can be regulated. n171 Nevertheless, the majority of the Court believed that even these "unprotected" classes of speech are within the First Amendment's protection. n172 Accordingly, an ordinance can be content-based and regulate an "unprotected" class of speech, but within the class the regulation must be content-neutral. n173 Hence, the government can prohibit an "unprotected" class of speech such as libel, but it cannot make a content-based law that only prohibits libel critical of the government. n174 Under this analysis, it must be determined whether the stalking statutes can be categorized as "fighting words." n175 Even if stalking statutes constitute fighting word statutes and as such are within an "unprotected" class of speech, the states may not use the statutes to arbitrarily prohibit or promote any view. n176 The statutes must prohibit all verbal and non-verbal expression that would be considered fighting words. n177 If stalking statutes are determined to fall within a proscribable class of speech, then they must regulate speech regardless of the content. The R.A.V. ordinance failed to meet this requirement because it only prohibited speech executed "on the basis of race, color, creed, religion or gender." n178 Verbal or nonverbal expression, no matter how severe, would escape punishment under this statute if it fell outside of this limited definition. n179 For example, speech based on political affiliation, [*1091] union membership or sexual preference would not be covered because the St. Paul ordinance was limited to speech based on race, color, creed, religion or gender.

n180 The stalking statutes would satisfy this requirement because they would prohibit all "fighting words" and thus, would not be punishing or favoring a particular view point. n181 On the other hand, statutes that expressly exempt from prosecution any expression, such as labor picketing, may be found to be unconstitutional because the statute could be favoring a particular type of fighting words. n182 Specifically, in order for a statute to be constitutional, it would have to regulate all expression within the unprotected class regardless of the particular viewpoint asserted. Stalking laws would regulate all verbal or nonverbal expression regardless of the idea which the group is trying to protect. n183 Furthermore, the stalking statutes only ban the group's expression because of the actions they entail and not because of the ideals expressed. n184 For example, burning the American flag can be punished by an outdoor fire ordinance since it would be regulating action, but this same behavior could not be punished by an ordinance against dishonoring the flag because this would be regulating an expression of an idea. n185 Consequently, a statute may not be able to prohibit the burning of a cross or the right to picket by a law that punishes burning crosses or all picketing, but they can prohibit these activities by a stalking law that prohibits repeated harassing and following behavior that causes a person to fear harm or emotional distress. The Supreme Court's requirements for a valid statute, in an area of speech that can "be regulated because of its constitutionally proscribable content," would be met because the stalking statute would punish all classes of fighting words, and thus would be content-neutral. n186 B. Exceptions To The Requirement Of Content Neutrality Within The "Unprotected" Classes The concurring opinion in R.A.V. stated that the majority's decision would require the government to "proscribe all speech or no speech at all." n187 The majority disagreed with this assertion and stated that the decision would only require an ordinance that regulated proscribable expression to do so with a content neutral approach. n188 Hence, a statute can only prohibit a certain area of expression as long as the prohibition is not based on content.

For example, a state could prohibit obscenity, or other types of proscribable speech, only in certain media or markets, "for although that prohibition would be 'underinclusive,' it would not discriminate on the basis of content." n189 The R.A.V. majority recognized that the content-neutral requirement is not absolute, and thus, there are exceptions. n190 The exceptions to the content neutrality requirement occur in three instances. n191 First, regulations that only prohibit the worst kinds of speech, like the most vulgar obscenity, do not have to maintain neutrality. n192 Regulations of a subclass of proscribable speech associated with certain " secondary effects" of the speech are also exempt. n193 Title VII sexual harassment in employment would serve as an example because the regulation is concerned with the "secondary effects" the speech has on women in the workplace and not the harasser's expression. n194 Finally, if there is no possibility that the government is trying to suppress the expression of ideas, content neutrality will not be required. n195 Most stalking statutes will not have to be concerned with these exceptions because they meet the content-neutrality requirement. However, other states like those that exempt labor, will be forced to defend their statutes with the use of one of these exceptions. n196 C. Determining Whether Stalking Statutes Can Be Considered "Fighting Words"--The Immediate Breach of Peace Requirement One element of the fighting words doctrine, which was not discussed in R.A.V., is whether the speech constitutes an expression of the kind that "tend[s] to incite an immediate breach of peace." n197 While there is some question as to which standard would be used to measure the "tends to incite" element, n198 there are many examples to show that stalking activities may cause the hearer of the speech to resort to violence. For instance, over the last few years the violence directed towards doctors and staff of abortion clinics has increased.

n199 This increase in violence has not only brought about a rise in fear and anxiety in these workers, but has also brought about the desire to protect themselves, with doctors hiring bodyguards and carrying guns. n200 For instance, after hearing about the death of Dr. David Gunn, Dr. Buck Williams, who had a license to carry a firearm, upgraded his weapon from a .38 revolver to a .45 semi-automatic. n201 Many other examples of the escalating violence can be found within the area of domestic relations. There are many cases of women who have broken off relationships and have found themselves being stalked or even killed by their former husbands or boyfriends. n202 Of course, there are countless cases of women buying guns and killing their husband or ex-boyfriend and going to jail for first degree murder.

n203 On the other hand, most victims of stalking are frightened and terrorized. Accordingly, stalking statutes require the victim of stalking to be fearful of death or bodily harm or to suffer emotional harm before the statute is invoked. n204 This indicates that the legislators have created the statutes to address the problem of stalking victims living in fear and intimidation and not to address the problem of victims lashing out at [*1094] stalkers.

n205 This may make it difficult for a stalking law to be classified as a fighting words statute because the doctrine requires the hearer of the expression to become violent or cause a breach of peace. n206 The intent of the statute is not to address the behavior of the victim but to end the intimidating and violent behavior of the stalker. This intention may make it difficult for stalking statutes to be classified as "fighting words."

VI. Conclusion Group stalking, like individual stalking, is a serious problem that is not going to disappear. Accordingly, because existing civil and criminal relief has proved to be inadequate, these laws are needed to protect victims from fear and intimidation. n207 Of course, while providing this protection, legislators must also protect the group member's right to freedom of speech.

Under the content-neutral and content-based freedom of speech analyses the stalking statutes have achieved this balance. Under a content-neutral analysis, stalking laws should be considered a regulation on the traditional public forum. n208 Additionally, a state has a significant interest in the protection of its citizens from the terrorizing and often violent "speech" of the group members. The statutes have been narrowly tailored to serve this interest, and the laws leave open alternative channels of communication for the group to express itself. n209 Considering the stalking statutes as a content-based regulation also leads to the conclusion that the stalking laws are constitutional. The statutes regulate one of the four recognized classes of "proscribable speech." Furthermore, within this proscribable class of speech, the statutes are not regulating any speech on the basis of subject matter because they prohibit all "fighting words." n210 Finally, it should be concluded that stalking statutes address fighting words because stalking may cause the victim to resort to violence or to cause a breach of peace. n211 Stalking laws have provided the appropriate balance between the need and right to be left alone and the rights of freedom of expression and speech. Therefore, the stalking statutes should be found to be constitutional.

FOOTNOTES:

n1 Phil Long and Martin Merzer, Doctor Slain at Anti-Abortion Rally in Pensacola First at Clinic Protest, MIAMI HERALD, March 11, 1993, at 1A.

n2 N.C. GEN. STAT. @ 14-277.3 (1993). North Carolina defines a criminal stalker as one who "willfully on more than one occasion follow[s] or is in the presence of another person without legal purpose." Id.

n3 Sandra G. Boodman, Abortion Foes Strike At Doctors' Home Lives;

Illegal Intimidation Or Protected Protest?, WASH. POST, April 8, 1993, at A1. Rider made strong references to the murder of Doctor Gunn by telling Maguire that she "might be next." Id. Rider also told Maguire that she should get a bulletproof vest and that she would need federal marshalls, not just a clinic's security guard, to protect her.

Id. Maguire's continuous complaints to the Charleston police department that Rider harassed, threatened and stalked her precipitated Rider's arrest. Id.

n4 Judith Gaines, R.I. Abortion Rights Leader Challenges Alleged Stalking by Foes, BOSTON GLOBE, April 24, 1993, at Metro 20. Baldwin invoked Rhode Island's stalking law against defendants, Barry Kilbane and Matthew Blanchette, who belonged to such groups as Operation Rescue, the Lambs of Christ, and Missionaries to the Pre-born, and continously harassed Baldwin. Id. According to Baldwin, the defendants followed her from the Planned Parenthood office to a nearby restaurant, and once inside "began yelling that I murdered babies."

Id. A few days after the incident intruders vandalized the clinic. Id.

When Baldwin arrived to survey the damage, the defendants confronted her and stated that they intended to follow her again. When Baldwin left the clinic, the defendants followed her car but she managed to elude them. Id. Three days later a Superior Court Judge granted her a temporary restraining order against the two men. Gaines, supra.

n5 A pro-choice activist denotes a person who supports a woman's right to have an abortion.

n6 Doug Grow, Abortion Rights Activists Prove Worthy of Their Own Criticism, STAR TRIBUNE, Oct. 6, 1993, at 3B. Pro-choice members claimed that they tracked the anti-abortion group so that the targeted doctors would not become objects of harassment and intimidation. Id.

n7 See, e.g., Ted Anthony, Mother's Loss was Victory for Other Stalking Victims: Daughter's Murder Led to New Law, MIAMI HERALD, Sept. 19, 1993, at 4B. Stalking laws support the belief that stalking usually involves only two individuals, the stalker and the victim.

Unfortunately, it usually requires the murder of a woman for the legislature to enact these laws. For example, Pennsylvania created its new stalking law after the death of Laurie Show. Laurie was killed by two girls when one of them thought that Laurie was trying to steal her boyfriend. Months before the killing, one of the girls repeatedly called the Shows' residence and threatened Laurie and her mother. She also harassed Laurie at work, yelled obscenities, and warned Laurie to stay away from her boyfriend. Finally, on December 20, 1991, the two girls tricked Laurie's mother into leaving her home, went into Laurie's bedroom and slit Laurie's throat. Through Mrs. Show's efforts, state Rep. Michael McGeehan sponsored and helped pass a stalking statute.

n8 See supra notes 3, 4, 6 and accompanying text.

n9 Any group or individual member charged with stalking may claim a First Amendment right to freedom of speech, freedom of assembly or freedom of association.

n10 The stalking laws generally face two constitutional challenges:

vagueness and overbreadth problems. For a complete discussion of these issues see Matthew J. Gilligan, Note, Stalking the Stalker: Developing New Laws to Thwart Those Who Terrorize Others, 27 GA. L. REV. 285, 304-20 (1992).

n11 U.S. Const. amend. I. "Congress shall make no law . . .

abridging the freedom of speech." Id.

n12 Justice Brandeis once stated that "the right to be left alone is the most comprehensive of rights and the right most valued by civilized men." Olmstead v. U.S., 277 U.S. 438, 478 (1928).

n13 The term content-neutral describes a statute or ordinance that does not regulate speech based on hostility or favoritism towards the underlying message. See generally United States v. O'Brien, 391 U.S.

367, 375-76 (1968) (the ordinance prohibited the knowing destruction of certificates issued by the Selective Service System, and as such there was nothing expressive about the conduct).

n14 The term content-based describes a statute or ordinance that accords preferential treatment to the expression of views on one particular subject, thus distiguishing the conduct based on the content of the demonstrator's speech. Carey v. Brown, 447 U.S. 455, 460-61 (1980) (ordinance regulating residential picketing that had an exemption for labor picketing discriminated certain conduct based upon the content of the communication).

n15 Cal. Penal Code @ 646.9 (West Supp. 1995).

n16 See, e.g., Andrea Ford, Suspect On Tape Tells Of Actress's Last Words, L.A. TIMES, Oct. 22, 1991, at B3; James Quinn, Man Pleads No Contest In 'Stalking' Case, L.A. TIMES, July 23, 1991, at B3; Ted Appel, Bill Would Sharpen California's Stalking Law, UPI, Mar. 8, 1993, available in LEXIS, Nexis Library, UPI File.

n17 Ford, supra note 16, at B3.

n18 Obsessed Fan Gets Life In Actress's Death, L.A. TIMES, Dec. 22, 1991, at B5; see also Ford, supra note 16, at B3.

n19 Ford, supra note 16, at B3.

n20 Quinn, supra note 16, at B3.

n21 Id.

n22 See infra notes 24-35 and accompanying text.

n23 See infra notes 36-52 and accompanying text.

n24 Forty-seven states have passed stalking or harassment laws. The exceptions are Arizona, Missouri, and Wisconsin.

n25 The murder of Tiffiney Graham the passage of New York's stalking law. See Claire Serant, Stalked, ESSENCE, Oct. 1993, at 72.

Tiffiney had a relationship with Thaddeus Davis that ended when he became jealous and possessive. Id. Thaddeus then retaliated by threatening and harassing Tiffiney. Id. Tiffiney became frightened and instructed her family and co-workers to tell Thaddeus she was not in when he called, and she armed herself with mace. Id. Tiffiney's precautions were in vain; Thaddeus shot her and then shot a subway conductor who tried to help Tiffiney. See also Melinda Beck, Murderous Obsession, NEWSWEEK, July 13, 1992, at 60 (suggesting that the murder of at least one woman constitutes the primary catalyst to the enactment of stalking statutes.)

n26 See Beck, supra note 25, at 60 (discussing the lack of comprehensive data on stalking).

n27 Maria Puente, Legislators Tackling The Terror Of Stalking, USA TODAY, July 21, 1992, at 9A.

n28 See Letterman Fan Back In Prison, UPI, May 1, 1990, available in LEXIS, Nexis Library, UPI File. The article concerns late night talk show host David Letterman and his ordeal of being stalked by obsessed fan Margaret Ray. Id. Ray has been stalking Letterman for more than four years and has been arrested for being inside his house on several occasions. Id.

n29 Serant, supra note 25, at 72.

n30 Serant, supra note 25, at 72. The article cites the Federal Bureau of Investigation's Uniform Crime Report which shows that nearly 30 percent of female homicide victims arekilled by a husband or boyfriend. Id. Victim's rights advocates agree that many of these murdered women were stalked, prior to their killing. Id.

n31 See Puente, supra note 27, at 9A (legislators discussing stalking activity in their states); Anthony, supra note 7, at 4B (two girls stalked Laurie Show); Gaines, supra note 4, at Metro 20 (anti-abortion group members known by doctor charged with stalking).

n32 Doris Bacon, Vicious Crime, Double Jeopardy, PEOPLE, June 5, 1989, at 44 (Arthur Jackson stalking television star Theresa Saldana);

Josh Meyer, Man Held in Stalking of Pop Singer Janet Jackson, L.A.

TIMES, June 25, 1992, at B3; Bruce Rubenstein, Stalker a Danger to Himself and Others, ILLINOIS LEGAL TIMES, June 1992, at 18 (describing threats of stalker Ralph Nau against pop stars Cher, Olivia Newton-John, and Sheena Easton).

n33 See 139 CONG. REC. S12901 (daily ed. Oct. 4, 1993) (statement of Senator Cohen); Anthony, supra note 7, at 4B.

n34 Boodman, supra note 3, at A1 (director of Charleston Women's Medical Clinic stalked by anti-abortion member); Gains, supra note 4, at Metro 20 (Planned Parenthood leader stalked by two anti-abortion members); Long, supra note 1, at 1A (doctor shot and killed outside abortion clinic by anti-abortion group protester).

n35 Stalking Victims Turn to Congress for Help (CNN television broadcast, Sept. 29, 1992) (discussing the psychiatric study which estimates that 200,000 stalkers exist in United States).

n36 See, e.g., Nightline: Anti-Stalker Laws (ABC television broadcast, Sept. 3, 1992). The panel discussed how present remedies and laws appropriately or inappropriately address stalking behavior.

Id. The panel accused legislators of using the public's fear of stalking to get votes. Id. They claimed that instead of forcing law enforcement officials to use present laws, the legislators simply claimed that they "got rid of stalking overnight" for reelection purposes. Id.

n37 Id.

n38 See, e.g., Lisa Brennan, Prosecutor Grateful For Stalking Legislation, LEGAL INTELLIGENCER, June 25, 1993, at 1. A victim, Barbara Jo Cohan, a victim of stalking, explained that for the past 20 years, the old laws continually failed to protect her. However, she expressed hope that Pennsylvania's new stalking law may finally give her the relief she deserves. Id.

n39 See Gilligan, supra note 10, at 288-99 for a more detailed explanation of the causes of actions and remedies for harassment and stalking.

n40 See Nancy Gibbs, 'Til Death Do Us Part; When a Women Kills an Abusive Partner, Is It an Act of Revenge or of Self Defense? A Growing Clemency Movement Argues for a New Standard, TIME, Jan. 18, 1993, at 38 (discussing how many women attempt to file assault charges and obtain restraining orders against their husbands, only to find that they provide little protection).

n41 Note, A Remedial Approach To Harassment, 70 VA. L. REV. 507 (1984) [hereinafter Harassment] (discussing some of the difficulties victims of harassment face in obtaining relief).

n42 Linda Gunderson, Note, Criminal Penalties For Harassment, 9 PAC. L.J. 217, 224 (1978).

n43 Janice L. Grau, Note, Restraining Order Legislation For Battered Women: A Reassessment, 16 U.S.F. L. REV. 703, 712 (1982).

n44 See Terrorized By Stalkers (CNN television broadcast, Mar. 11, 1992)(describing an incident in which a stalking victim was attacked and stabbed outside a courtroom while awaiting word on the renewal of a restraining order against her ex-boyfriend).

n45 See, e.g., David Holmstrom, Efforts To Protect Women From 'Stalkers' Gain Momentum At State, Federal Levels, CHRISTIAN SCIENCE MONITOR, Dec. 22, 1992, at 1 (stating that over one-third of the restraining orders issued in Massachusetts between September and December 1991 were violated within the first few days of issuance).

n46 Harassment, supra note 41, at 521 (discussing lenient sentences).

n47 See, e.g., Brennan, supra note 38, at 1 (Cohen repeatedly found herself in court charging Evans with harassment); Boodman, supra note 3, at A1 (Lorraine Maguire attempted to obtain relief under the state's harassment law many times before resorting to the state's stalking statute).

n48 Wayne F. Foster, Annotation, Validity, Construction, and Application of State Criminal Statue Forbidding Use of Telephone to Annoy or Harass, 95 A.L.R.3D 411 (1979).

n49 See, e.g., LA. REV. STAT. ANN. @ 14-285 (West 1986).

Louisiana's harassment law states:

"No person shall: [] engage in or institute a telephone call, telephone conversation, or telephone conference, with another person, anonymously or otherwise, and therein use obscene, profane, vulgar, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature or threaten any illegal or immoral act with the intent to coerce, intimidate, or harass another person."

Id.

n50 See Harassment, supra note 41, at 526 (discussing the lenient sentences given to people convicted of harassment).

n51 A state may expand its harassment laws to cover stalking activity instead of enacting a separate stalking statute. See, e.g., N.Y. PEN. LAW @ 240.25 (McKinney 1989 and Supp. 1995). However, a state may simply add a stalking statute onto an already existing harassment law. See, e.g., 1993 Pa. Laws 28.

n52 See, e.g., UTAH CODE ANN. @ 76-5-106.5 (1993); VT. STAT. ANN.

tit. 13, @ 1061 (Supp. 1994); 1993 Pa. Laws 28; S.D. CODIFIED LAWS ANN. @ 22-19A-1 (Supp. 1994).

n53 See, e.g., Robert A. Guy, Jr., The Nature and Constitutionality of Stalking Laws, 46 VAND. L. REV. 991, 1000-09 (1993).

n54 See, e.g., CAL. PENAL CODE @ 646.9 (West Supp. 1995); ALA. CODE @ 13A-6-90 (1994)(punishing a person who "makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking"); DEL. CODE ANN. tit. 11, @ 1312A (Supp. 1994)(follow or harass); IDAHO CODE @ 18-7905 (Supp. 1994) (same); TENN. CODE ANN. @ 39-17-315 (Supp. 1994).

n55 See, e.g., CONN. GEN. STAT. @ 53a-181d (1992) (follows or lies in wait); GA. CODE ANN. @ 16-5-90 (Supp. 1994) (following or surveillance); HAW. REV. STAT. @ 711-1106.5 (Supp. 1992) (addressing pursuing or surveillance); ILL. ANN. STAT. ch. 720, para. 5/12-7.3 (Smith-Hurd 1993 & Supp. 1994) (follows the person or places under surveillance); N.C. GEN. STAT. @ 14-277.3 (1993) (follows or is in the presence of another without legal purpose).

n56 See, e.g., CAL. PENAL CODE @ 646.9 (West Supp. 1995); ILL. ANN.

STAT. ch. 720, para. 5/12-7.3 (Smith-Hurd 1993 & Supp. 1994); IOWA CODE @ 708.11 (1992); KY. REV. STAT. ANN. @ 508.140 (Baldwin 1995);

LA. REV. STAT. ANN. @ 14:40.2 (West Supp. 1995); MD. ANN. CODE art.

27, @ 121B (Supp. 1994); W. VA. CODE @ 61-2-9a (Supp. 1992 & Supp.

1994).

n57 See, e.g., GA. CODE ANN. @ 16-5-90 (Supp. 1993); FLA. STAT. ch.

784.048 (Supp. 1995); IDAHO CODE @ 18-7905 (Supp. 1994); MICH. COMP.

LAWS @ 750.411h (1992); NEB. REV. STAT. @ 28-311.02 (Supp. 1993); N.J.

STAT. ANN. @ 2c:12-10 (West Supp. 1994); VT. STAT. ANN. tit. 13, @ 1061 (Supp. 1994).

n58 See, e.g., DEL. CODE ANN. tit. 11, @ 1312A (Supp. 1994); CAL.

PENAL CODE @ 646.9 (West Supp. 1995); IDAHO CODE @ 18-7905 (Supp.

1994); S.D. CODIFIED LAWS ANN. @ 22-19A-4 (Supp. 1994).

n59 See, e.g., IDAHO CODE @ 18-7905 (Supp. 1994); DEL. CODE ANN.

tit. 11, @ 1312A (Supp. 1994); CAL. PENAL CODE @ 646.9 (West Supp.

1995); VT. STAT. ANN. tit. 13, @ 1061 (Supp. 1994); UTAH CODE ANN. @ 76-5-106.5 (1993).

n60 See supra note 54 for statutes that address this behavior.

n61 See supra note 55 for statutes that address this behavior.

n62 See, e.g., Constance L. Hays, If That Man is Following Her, Connecticut Plans to Follow Him, N.Y. TIMES, June 5, 1992, at B1.

Erin Tavegia experienced stalking when she was just fifteen. Id.

Although he never threatened her, the stalker would follow her to school, ask her to get in his car, and suggest meetings after school.

A statute requiring reasonable fear of death or great bodily harm would not encompass this type of behavior. Id. Protection would only be offered to Taregia by statute requiring infliction of emotional distress.

n63 See also United States v. Lee, No. 90-5264, 1993 U.S. App.

LEXIS 25881 (D. Minn. Oct. 7, 1993). Although this is not a stalking case, it does discuss whether the cross the defendant set on fire caused African-American members of an apartment complex fear of death or great bodily harm or emotional distress.

n64 Boodman, supra note 3, at A1; Gaines, supra note 4, at Metro 20; Grow, supra note 6, at 3B.

n65 See, e.g., DEL. CODE ANN. tit. 11, @ 1312A (Supp. 1994) (behavior that serves a legitimate purpose or is a constitutionally protected activity is exempt); OKLA. STAT. tit. 21, @ 1173 (Supp.

1995) (same); UTAH CODE ANN. @ 76-5-106.5 (1993) (same).

n66 While none of the stalking statutes define "legitimate purpose," Black's Law Dictionary defines "legitimate" as "that which is lawful, legal, recognized by law, or according to law; as, legitimate children, legitimate authority, lawful power, legitimate sport or amusement." BLACK'S LAW DICTIONARY 901 (6th ed. 1990).

n67 While none of the stalking statutes define "constitutionally protected activity," Black's Law Dioctionary defines "constitutional liberty" or "freedom" as "such freedom as is enjoyed by the citizens of a country or state under the protection of its constitution. The aggregate of those personal, civil, and political rights of the individual which are guaranteed by the constitution and secured against invasion by the government or any of its agencies."

BLACK'S LAW DICTIONARY 311-12 (6th ed. 1990). See supra note 65.

n68 See supra note 65 for examples of statutes that have limited their definition of stalking.

n69 See supra note 13.

n70 See supra note 14.

n71 U.S. CONST. amend. I. The First Amendment applies to the states via the Due Process Clause of the Fourteenth Amendment. See Gitlow v.

New York 268 U.S. 652, 666 (1925).

n72 See generally New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

n73 See R.A.V. v. City of St. Paul, U.S. , 112 S. Ct. 2538 (1992) (holding that "unprotected" classes of speech cannot be used to favor a particular view); Texas v. Johnson, 491 U.S. 397 (1989) (holding that the First Amendment prohibits the government from prohibiting an expression of an idea, especially those that society finds offensive or disagreeable.); Carey v. Brown, 447 U.S. 455, 460-61 (1980) (holding that an ordinance that prohibited residential picketing but exempted labor picketing was unconstitutional).

n74 See generally MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH @ 2.01, at 2-3 (1984)(the Supreme Court refuses to declare the constitutionality of a law that simply restricts speech).

n75 Frisby v. Schultz, 487 U.S. 474 (1988) (upholding a regulation on residential picketing); Food Employees v. Logan Plaza, 391 U.S. 308 (1968) (upholding a regulation on picketing). See also infra notes 82-89 and accompanying text.

n76 See infra notes 77-80 and accompanying text.

n77 See Brandenburg v. Ohio, 395 U.S. 444 (1969); Feiner v. New York, 340 U.S. 315 (1951); Schenck v. United States, 249 U.S. 47 (1919).

n78 See Miller v. California, 413 U.S. 15 (1973); Roth v. United States, 354 U.S. 476 (1957).

n79 See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Sullivan, 376 U.S. at 255.

n80 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

n81 See Texas v. Johnson, 491 U.S. 397, 403 (1989) (courts impose stricter standards of review on regulations that prohibit expression than on regulations that suppress noncommunicative conduct).

n82 Perry Education Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 45 (1983).

n83 Id. at 43-46. See also Boos v. Barry, 485 U.S. 312 (1988);

United States v. Grace, 461 U.S. 171 (1983).

n84 Frisby, 487 U.S. at 481-82. See also Perry, 460 U.S. at 45.

n85 Frisby, 487 U.S. at 479-80. See also Perry, 460 U.S. at 45.

n86 Perry, 460 U.S. at 45.

n87 Id.

n88 Id.

n89 487 U.S. 474 (1988).

n90 Id. at 477.

n91 Id. at 476.

n92 Id. at 477.

n93 Id.

n94 Frisby, 487 U.S. at 488.

n95 See also United States Postal Service v. Counsel of Greenburgh Civic Ass'n., 453 U.S. 114, 132 (1981); Consolidated Edison Co. v.

Public Service Comm'n, 447 U.S. 530, 535-36 (1980); Cantwell v.

Connecticut, 310 U.S. 296 (1940).

n96 The Frisby ordinance regulated picketing, which is a combination of speech and conduct. The stalking statutes will regulate the group's conduct which will incidentally restrict a group's freedom of expression.

n97 Frisby, 487 U.S. at 482.

n98 Id. at 481-82.

n99 See e.g., CAL. PENAL CODE @ 646.9 (West Supp. 1995); WYO. STAT.

@ 6-2-506 (Supp. 1994); 1993 Tex. Gen. Laws 10.

n100 See, e.g., CONN. GEN. STAT. @ 53a-181d (1992); D.C. CODE ANN.

@ 22-504 (1989 & Supp. 1994); LA. REV. STAT. ANN. @ 14:40.2 (West supp. 1995); MICH. COMP. LAWS @ 750.411h (1992).

n101 WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 795 (9th ed. 1986).

n102 See supra notes 97-101.

n103 This Comment limits the discussion to activities that occur in a traditional public forum, where most stalking activities occur. The standard applied to an analysis of this forum is stricter than that applied to a public forum created by government designation or a non-public form.

n104 Frisby, 487 U.S. at 479-80. See also Perry, 460 U.S. at 45.

n105 See Perry, 460 U.S. at 45-46. The Supreme Court created three tests to determine the constitutionality of content-neutral regulations for the three forums: (1) traditional public forum--the regulation must serve a significant government interest and allow alternative channels of communication; (2) public forum created by government designation--the regulation must effectuate a compelling state interest; (3) non-public forum--the regulation must be reasonable so as not to suppress expression merely because public officials oppose the speaker's view. Id.

n106 Frisby, 487 U.S. at 481.

n107 Hague v. CIO, 307 U.S. 496, 515 (1939).

n108 Frisby, 487 U.S. at 480.

n109 Id.

n110 Id. at 480-82.

n111 Id. at 488 n112 Id. at 480.

n113 See, e.g., Anthony, supra note 7, at 4B (stalked at home);

Boodman, supra note 3, at A1 (stalked at work); Puente, supra note 27, at 9A (stalked at work and home); Maura Reynolds, City Schools Crack Down On Weapons, SAN DIEGO UNION-TRIBUNE, April 28, 1993, at B-1 (stalking at public schools).

n114 Frisby, 487 U.S. at 484.

n115 Rowan v. United States Post Office Dep't., 397 U.S. 728, 737 (1970).

n116 See, e.g., COLO. REV. STAT. @ 18-9-111 (1986).

n117 Frisby, 487 U.S. at 482-88.

n118 See, e.g., CAL. PENAL CODE @ 646.9 (West supp. 1995); MICH.

COMP. LAWS @ 750.411h (Supp. 1994); S.D. CODIFIED LAWS ANN. @ 22-19A-1 (Supp. 1994); TENN. CODE ANN. @ 39-17-315 (Supp. 1994).

n119 See, e.g., Beck, supra note 25, at 60; Anthony, supra note 7, at 4B.

n120 See, e.g., supra notes 24-35 and accompanying text. Studies have shown that most women who are killed by their husbands or ex-boyfriends (1)were stalked by those men before the crime took place and (2)had called the police on more than one occasion. See Gibbs, supra note 40, at 38. Further, a steady increase of violence at abortion clinics has arisen over the last few years. This violence has focused on clinic workers and would constitute stalking under most state's statutes. See Long, supra note 1, at 1A; Boodman, supra note 3, at A1; Gaines, supra note 4, at Metro 20.

n121 Rowan, 397 U.S. at 737.

n122 Frisby, 487 U.S. at 484.

n123 Id. at 484-85.

n124 See supra notes 53-63 (discussing the behavior stalking statutes prohibit).

n125 Id.

n126 Id.

n127 See 139 CONG. REC. S12901 (daily ed. Oct. 4, 1993) (statement of Sen. Cohen) (stalkers call their victims at all times of the day or night, harass their victims by calling 20 to 30 times a day, follow their victims from home to work, to the store, to school, and even when they go out on dates).

n128 Id.

n129 Id. at S12902 n130 Id. at S12901 n131 Id.

n132 Perry Educ. Ass'n. v. Perry Local Educators' Ass'n., 460 U.S.

37, 45 (1983).

n133 City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 808-10 (1984).

n134 See id. (upholding a ban on all signs on public property because: (1) the state had a significant interest in avoiding visual clutter and blight, and (2) the ordinance was narrowly tailored to achieve that interest uniformly by banning the "evil", all signs).

n135 Frisby, 487 U.S. at 482.

n136 Id. at 485-87.

n137 Id. at 486.

n138 Id. at 486-88.

n139 Id. at 486.

n140 39 CONG. REC. S12901 (daily ed. Oct. 4, 1993) (statement of Sen. Cohen) (the government cannot tolerate a situation where someone is allowed to place another individual or family in fear of physical or emotional harm).

n141 Id.

n142 Operation Rescue is one of the largest and most organized anti-abortion groups in the United States.

n143 See Boodman, supra note 3, at A1. Terry further stated that the goal of his organization is to make targeted doctors "a liability to everyone they encounter." He has even suggested that members follow a doctor's wife to a hair salon and picket outside with signs which read "this hairdo is paid for by blood money." Id.

n144 See United States v. Lee, 5 F.3d 1297 (8th Cir. 1993) Lee was charged under a conspiracy statute for setting a cross on fire with the intent to cause African-American families fear and intimidation.

Id. at 1298-99. Such behavior may also be found to violate stalking laws in the future.

n145 See Boodman, supra note 3, at A1.

n146 Frisby, 487 U.S. at 486.

n147 Id. (quoting Carey v. Brown, 447 U.S. 455, 478-79 (1980)).

n148 139 CONG. REC. S12902 (daily ed. Oct. 4, 1993) (statement of Sen. Cohen) (stalking is "unique because it is often a series of acts that escalate into violence").

n149 Id. at S12901.

n150 See, e.g., CAL. PENAL CODE @ 646.9 (West supp. 1995); DEL.

CODE ANN. tit. 11, @ 1312A (Supp. 1994); WASH. REV. CODE ANN. @ 9A.46.110 (West Supp. 1995).

n151 Id.

n152 Id.

n153 Perry, 460 U.S. at 45.

n154 Frisby, 487 U.S. at 482.

n155 Id.

n156 See supra note 150.

n157 Id.

n158 Wisconsin v. Mitchell, U.S. , 113 S. Ct. 2194, 2201 (1993).

n159 Id.

n160 There are a few situations in which the stalking statutes may be considered to be content-based. For example, Delaware, Florida, Illinois, New Mexico, South Carolina, West Virginia, Wyoming and Nevada all exclude labor picketing from coverage under their stalking statutes. Even if a labor group's activities fall within the definition of stalking in these states, and they place an individual legitimately in fear of death or bodily harm or emotional distress, their actions cannot be prevented under the stalking statute. Therefore, the stalking statutes would be considered based on content because the statutes would discriminate between conduct based upon a group's communication. See, e.g., Carey, 447 U.S. at 455. In Carey the court was looking at a residential picketing ordinance that prohibited all picketing but excluded picketing of a place of employment involved in a labor dispute. The Court determined that the ordinance was based on content because it discriminated between lawful and unlawful conduct based on the demonstrator's communication.

Stalking statutes may be considered content-based because their application depends on the likely communicative impact of the conduct.

For example, whether a stalking statute can be invoked against a pro-life group that is following a doctor to stores, restaurants, on dates, and to and from work, will depend on the impact the group's expression has on the doctor. Thus, the statutes rely on the impact of the speech on the individual. The law will force a court to look at the content of the expression to determine if there has been a violation, and thus, changes the law into a content-based regulation.

See e.g., United States v. Lee, 5 F.3d 1297 (8th Cir. 1993) (examining a conspiracy act which relied on the communicative impact of the speech and thus, required the court to look at the content of the defendant's speech).

n161 See supra notes 76-81 and accompanying text. The Supreme Court has recognized four categories of permissible content based regulations. Those categories are incitement to riot (or clear and present danger test), libel, obscenity and fighting words. This Comment only examines the fighting words doctrine because it offers the stalking statutes the best chance for survival of a constitutional challenge.

n162 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

n163 See generally Note, The Demise Of The Chaplinsky Fighting Words Doctrine: An Argument For Its Interment, 106 HARV. L. REV. 1129 (1993) (for an excellent discussion on the history and criticisms of the "fighting words" doctrine).

n164 U.S. , 112 S. Ct. 2538 (1992).

n165 Id. at 2541.

n166 St. Paul, Minn. Legis. Code @ 292.02 (1990).

n167 Id.

n168 Id. In re welfare of R.A.V., 464 N.W.2d 507, 510-11 (Minn.

1991).

n169 R.A.V., 112 S. Ct. at 2542.

n170 Id.

n171 Id. at 2542-43.

n172 Id. at 2543-44.

n173 Id. at 2544-45.

n174 R.A.V., 112 S. Ct. at 2543.

n175 See infra notes 197-206 and accompanying text.

n176 R.A.V., 112 S. Ct. at 2545.

n177 Id.

n178 Id. at 2547; St. Paul, Minn. Legis. Code @ 292.02 (1990).

n179 Id.

n180 Id.

n181 See, e.g., GA. CODE ANN. @ 16-5-90 (1994); OHIO REV. CODE ANN.

@ 2903.211 (Baldwin 1993); R.I. GEN. LAWS @ 11-59-1 (1994).

n182 See, e.g., DEL. CODE ANN. tit. 11, @ 1312A(c) (Supp. 1994) (rebuttable presumption that labor picketing is not stalking); ILL.

ANN. STAT. ch. 720, para. 5/12-7.3(c) (Smith-Hurd Supp. 1994) (exempting lawful picketing); NEV. REV. STAT. ANN. @ 200.575(b)(1) (Michine Supp. 1993) (exempting labor picketing).

n183 See supra note 181.

n184 Id.

n185 R.A.V., 112 S. Ct. at 2544.

n186 Id. at 2543 (emphasis omitted).

n187 Id. at 2562 (Stevens, J., concurring)(emphasis omitted).

n188 Id. at 2545.

n189 Id.

n190 R.A.V., 112 S. Ct. at 2545-47.

n191 Id. at 2545-47.

n192 Id. at 2546.

n193 Id. at 2546.

n194 Id. at 2546-47.

n195 R.A.V., 112 S. Ct. at 2547.

n196 See supra note 182.

n197 Chaplinsky, 315 U.S. at 572.

n198 See, e.g., Cynthia Grant Bowman, Street Harassment And The Informal Ghettoization Of Women, 106 HARV. L. REV. 517, 560-562, (1993).

n199 See Long, supra note 1, at 1A; Boodman, supra note 3, at A1;

Gaines, supra note 4, at Metro 20.

n200 See, e.g., Long, supra note 1, at 1A; Richard Lacayo, One Doctor Down, How Many More?, TIME, Mar. 22, 1993, at 46.

n201 Id. at 46.

n202 See, e.g., Fox Butterfield, Parole Advised For Woman Who Killed Abusive Partner, N.Y. TIMES, Jan. 21, 1993, at A18 (discussing women who have killed their abusive husbands or boyfriends and citing statistics on women who were killed by either their husbands or boyfriends).

n203 Id.

n204 See supra note 181.

n205 139 CONG. REC. S12901 (daily ed. Oct. 4, 1993) (Statements of Sen. Cohen) (discussing stalking in general and focusing on the fear and intimidation that stalking causes).

n206 Chaplinsky, 315 U.S. at 572.

n207 See supra notes 36-52 and accompanying text.

n208 See supra notes 103-13 and accompanying text.

n209 See supra notes 114-59 and accompanying text.

n210 See supra notes 171-86 and accompanying text.

n211 See supra notes 197-203 and accompanying text.

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