State v. Hemmingway
825 N.W.2d 303
Wis. Ct. App.2012Background
- Hemmingway was charged with stalking with a prior violent-crime conviction based on alleged threatening communications to his ex-wife Rebecca.
- The complaint describes messages suggesting violence and fear-inducing scenarios, including references to murder and bodily harm.
- Rebecca claimed serious emotional distress and fear of bodily injury or death, aided by Hemmingway's known violent history.
- Hemmingway moved to dismiss, arguing the statute is overbroad and protects speech under the First Amendment; the circuit court agreed and dismissed.
- The Wisconsin Court of Appeals reversed, holding the First Amendment does not protect intentional conduct designed to cause distress or fear, and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Wis. Stat. § 940.32 regulate speech or conduct? | Hemmingway contends the statute is overbroad because it regulates speech as well as conduct. | The State argues the statute targets conduct, with language acting as evidence of intent, not protected speech. | Statute regulates conduct; language is evidence of intent, not protected speech. |
| Is the stalking statute overbroad under the First Amendment? | Overbreadth challenge to protect speech beyond the targeted stalking conduct. | Statute serves legitimate state interests and narrows to intentional, fear-inducing conduct. | Not overbroad; stalking conduct with intent to cause fear is constitutionally permissible. |
| Must the State prove intent, knowledge, and causation to convict under § 940.32(2)? | Forecasts insufficient proof if speech is protected and intent is not adequately established. | Requires showing defendant acted with intent, knowledge that fear would result, and actual fear/distress. | Yes; elements include intentional course of conduct, knowledge/should-know of fear, and actual distress or fear. |
| Does the First Amendment scrutiny hinge on whether the statute regulates speech or only conduct? | Because speech can be an element of the acts, it triggers First Amendment analysis. | Speech incidental to criminal conduct does not receive First Amendment protection when it evidences intent to commit the crime. | Speech incidental to unlawful conduct does not trigger heightened First Amendment scrutiny. |
| Should the court remand or affirm the circuit court's dismissal? | Remand for further proceedings consistent with the ruling that the statute is not overbroad. | Maintain that the statute is valid and not overbroad; deny dismissal protections. | Reverse; statute not overbroad, remand for further proceedings. |
Key Cases Cited
- State v. Ruesch, 214 Wis. 2d 548 (Ct. App. 1997) (upheld stalking statute against overbreadth/vagueness challenges; balancing victim interests)
- State v. Robins, 253 Wis.2d 298 (2002 WI 65) (speech incidental to conduct not subject to First Amendment scrutiny; intent evidence)
- State v. Mitchell, 508 U.S. 476 (1993) (conduct-focused hate-crime feature; speech not punished)
- State v. Baron, 318 Wis.2d 60 (2009) (First Amendment scrutiny framework for overbreadth; conduct vs. speech threshold)
- New York v. Ferber, 458 U.S. 747 (1982) (overbreadth scrutiny for speech involving crimes; substantial regulation allowed)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (speech-protected activity; government interest in regulation)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (speech incidental to conduct does not immunize illegal conduct)
- Warbelton, 315 Wis.2d 253 (2009) (court addresses element of intent in stalking context)
- People v. Bailey, 657 N.E.2d 953 (Ill. 1995) (stalking statute does not chill First Amendment when intent to cause fear is proven)