Stalking in the Context of the New York Penal Law & Freedom of Speech

Stalkers need not tiptoe on the fringes hiding in shadows. To stalk someone in the general sense you need not constantly run up to them or scare the heck out of them repeatedly. Even if you did, you might argue you have a right to express yourself and a freedom of speech that permits you to say as you please. While this last belief may or may not be true, the New York Penal Law describes Stalking in the Fourth Degree, pursuant to New York Penal Law 120.45, as when you intentionally, and for no legitimate purpose, engage in a course of conduct directed at a specific person, and know or reasonably should know that such conduct:

(1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or

(2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or

(3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

With this understanding of the lowest level Stalking statute, NY PL 120.45, let’s circle back to the dynamic between one’s freedom of speech and the crime of Stalking. Fortunately, in People v. Carboy, NYLJ 1202572202484 (App. Tm, 2nd, Decided September 19, 2012), the Appellate Term addressed this relationship in the context of subdivision two of NY PL 120.45. In identifying where Stalking as a crime ends an freedom of speech begins (or the inverse), the Court examined and emphasized the NYS legislature’s intent in enacting this Fourth Degree Stalking.

In Carboy, the evidence at trial showed that the defendant, after a number of encounters between him and the complainant, was told by a police detective to cease all contact and communication with the complainant. The defendant, however, continued to antagonize and gesture to the complainant and went so far as to design obscene T-shirts with the complainant’s face and body on them. The complainant suffered mental and emotional harm, which was the goal of the defendant. The defendant, on appeal, argued, among other things, that PL 120.45(2) was unconstitutional as it violated his First Amendment rights. The Appellate Term disagreed and affirmed the lower court’s decision.

In coming to it’s holding, the Appellate Term focused on the legislative intent in enacting this statute. The intent was to address “[t]he unfortunate reality…that stalking victims have been intolerably forced to live in fear of their stalkers…who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict[ing] immeasurable emotional and physical harm upon them” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law §120.40, at 76-77 [2009 ed]).

Pointing to established case law, the Court wrote that “[c]onstitutional free speech protections have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses; a person’s right to free expression may be curtailed upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner” (People v. Shack, 86 N.Y.2d 529, 535-536 (1995)). Furthermore, a “defendant’s right to free speech is permissibly subordinated to the complainant’s right to be free of repetitive, unwanted verbal and nonverbal communications which are likely to instill in the complainant a reasonable fear of harm” (People v. Wong, 3 Misc. 3d 274, 277 (Crim, Ct., NY County 2004). Therefore, “[l]iability under [the] stalking statute [Penal Law 120.45] arises not from the content of any speech but from the defendant’s course of conduct which is likely to instill a fear of harm in the target of that conduct” (Wong, at 277). As shown by case law and the intent of the legislature, New York State courts continue to emphasize that the “Stalking statute” supersedes an individual’s protected speech when it puts another person’s privacy interests in jeopardy.

In applying the law to the facts of this case, the Court determined that the defendant “intruded upon the complainant’s privacy rights” by pushing his “unwanted, non-verbal communications” upon the complainant which resulted in the complainant suffering emotional harm. This, according to the Appellate Term, was exactly what the “stalking statute [was] intended to criminalize.” Therefore, the “stalking statute” is meant to govern the conduct of the defendant and not necessarily his speech. Thus, the defendant’s violation of PL 120.45(2) was due to his “repetitive trespass upon the complainant’s privacy” and not from his “expression of speech.”

Each case certainly hinges on the facts and evidence, but Carboy is undoubtedly helpful to understand how your behavior may or may not violate New York State’s Stalking crimes.

To learn more about Stalking and other violent crimes in New York, follow the links throughout this entry or go directly to the New York Violent Crime information page at or the New York Crimes of Harassment and Fear section of NYDeskAppearanceTicket.Com. Further information on these offenses can be found throughout the NewYorkCriminalLawyerBlog.Com. All of the sites are linked below.

A New York criminal defense practice located in lower Manhattan, the two New York criminal lawyers who founded Saland Law PC served as Assistant District Attorneys in the New York County District Attorney’s Office before establishing the criminal firm.

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