Illinois Court Strikes Down Law Criminalizing Speech that Might Cause “Emotional Distress”

In a victory for free speech, the masters on the Illinois Supreme Court deigned to allow for individuals to NOT be punished for saying man things that do not directly threaten another person.  An Illinois stalking law criminalized ‘communicating…about..’ a person.  It also criminalized communication that a person would ‘reasonably’ know might cause emotional distress.  The Illinois Supreme Court decided that was a step too far, for whatever reason they determined that.
So, a win’s a win, and it’s always nice when the state decides to extend the leash a bit in favor of the individual.  Thanks, gov.

Ban on speech ‘about a person’ that negligently causes ‘significant mental suffering, anxiety or alarm’ struck down

Illinois “stalking” and “cyber-stalking” statutes criminalize (among other things),

  1. “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
  2. including “communicat[ing] to or about” a person,
  3. when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
  4. “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”

The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”

This morning, the Illinois Supreme Court struck down these provisions (which it referred to as “subsection (a)”), in People v. Releford. (I should note that my students Brandon Amash, Sarah Burns and Emily Michael, and I — with the invaluable help of pro bono local counsel Steven W. Becker — filed an amicus briefon behalf of the Cato Institute and the Marion B. Brechner First Amendment Project supporting this result.) Here are some key conclusions from the court:

1. The statute is a content-based speech restriction, and thus presumptively unconstitutional:

The proscription against “communicat[ions] to or about” a person that negligently would cause a reasonable person to suffer emotional distress criminalizes certain types of speech based on the impact that the communication has on the recipient. Under the relevant statutory language, communications that are pleasing to the recipient due to their nature or substance are not prohibited, but communications that the speaker “knows or should know” are distressing due to their nature or substance are prohibited. Therefore, it is clear that the challenged statutory provision must be considered a content-based restriction because it cannot be justified without reference to the content of the prohibited communications.


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Paul Gordon is the publisher and editor of iState.TV. He has published and edited newspapers, poetry magazines and online weekly magazines. He is the director of Social Cognito, an SEO/Web Marketing Company. You can reach Paul at