199 A.3d 1054
Vt.2018Background
- Complainant and Noll dated in 2006–07; after a breakup Noll repeatedly contacted, followed, and confronted her over years, including incidents at her workplace (2008), a parking lot (2010), threatening blog comments (2011), and distribution of a self-published book near her workplace (2015).
- The book included a chapter about the former relationship and a passage reading, "Shoot the terrorist? Or shoot the ‘artist?’ Neither are present," which complainant felt threatened by; she obtained a two‑year relief‑from‑abuse order after the book incident.
- In June 2015 the State charged Noll with criminal stalking, alleging a continuing course of conduct from 2008–2015 in violation of 13 V.S.A. § 1062 (2015). The statute required intentionally stalking by a course of conduct (two or more acts) that "would cause a reasonable person to fear" for safety or to suffer substantial emotional distress.
- At trial the court ruled the statute was constitutional, instructed the jury that a course of conduct could be composed of two or more acts (without requiring at least one act inside the 3‑year statute of limitations), and denied the motion for acquittal; the jury convicted Noll.
- On appeal the Vermont Supreme Court held the 2015 stalking statute was facially constitutional (it targets true threats and excludes constitutionally protected activity), and a reasonable jury could find the 2015 book distribution amounted to a true threat; however, the jury instruction improperly allowed conviction based solely on time‑barred acts, so the conviction was reversed and the case remanded for retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial constitutionality of 13 V.S.A. § 1062 (2015) | Statute punishes unprotected threatening conduct; valid. | Overbroad: criminalizes protected speech (e.g., speech causing substantial emotional distress); also impermissibly content‑based if limited to threats causing emotional distress. | Statute facially constitutional: targets true threats and excludes protected activity; limitation to threats causing fear or distress is permissible. |
| As‑applied / sufficiency re: 2015 book | State: book distribution could be part of a course of conduct and, in context, constitute a true threat. | Noll: book was hyperbolic/critique, protected speech; insufficient evidence that 2015 act was an unprotected true threat within limitations period. | A reasonable jury could find the 2015 book amounted to a true threat given context and prior conduct; question properly for jury. |
| Statute of limitations and course‑of‑conduct proof | State: continuing course allows use of acts outside limitations so long as at least one qualifying act is within 3 years. | Noll: prosecution relied on long‑past acts; must prove at least one element‑satisfying act within limitations. | Court agrees at least one statute‑compliant act must occur within limitations; 2015 act was the only possible within period. Jury instruction failed to require at least one timely act. |
| Jury instruction on threats and intent | State: instruction sufficiently described intent and objective test for "harassing"/true threats. | Noll: instruction allowed conviction on time‑barred acts and muddled true‑threat/intent guidance. | Instruction erroneous: permitted conviction based solely on time‑barred acts; also language about threats could confuse jury—on remand court should give clearer true‑threat guidance. |
Key Cases Cited
- Virginia v. Black, 538 U.S. 343 (reaffirming that "true threats"—statements communicating serious intent to commit unlawful violence—are unprotected)
- Watts v. United States, 394 U.S. 705 (political hyperbole distinguished from true threats)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (limits on viewpoint/content‑based distinctions even within proscribable speech categories)
- United States v. Turner, 720 F.3d 411 (2d Cir.) (true‑threat analysis is objective and context‑dependent; jury may decide)
- United States v. Parr, 545 F.3d 491 (7th Cir.) (context and speaker demeanor matter in true‑threat inquiry)
- United States v. Stevens, 559 U.S. 460 (facial First Amendment challenge succeeds only if substantial applications are unconstitutional)