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PETERSEN v. STATE12/20/1996
Here, we confront again the hypothetical situation of a political protester who knowingly engages in repeated nonconsensual contacts with a government official to protest the government's actions or policies — for example, by picketing the building where the official works, or by making repeated telephone calls to her office, or by sending her vituperative letters of protest. However, as already noted, these actions do not constitute the crime of stalking unless the State proves that the defendant recklessly placed another person in fear of injury or death. That is, the State must establish that the defendant's actions actually caused another person to fear injury or death, that the defendant consciously disregarded a substantial and unjustifiable risk that his actions would have this effect, and that the defendant's disregard of this risk constituted a gross deviation from the standard of care that a reasonable person would exercise in that situation. See AS 11.81.900(a)(3).
The government clearly possesses the authority to prosecute a person for recklessly causing another to fear imminent injury or death. This is the essence of the third- and fourth-degree assault statutes, AS 11.41.220(a) and 11.41.230(a). The First Amendment does not protect the utterance of threats, even when the defendant's threats are motivated by, or comprise part of, a political protest. For instance, 18 U.S.C. § 871 makes it a felony to threaten to harm or take the life of the President of the United States. Because this statute is squarely aimed at speech, the United States Supreme Court has declared that the statute must be interpreted so as to preserve the First Amendment values of open and robust political debate. Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 1401-02, 22
L.Ed.2d 664, 667 (1969). Thus, the statute does not prohibit political hyperbole that would not cause a reasonable person to perceive an actual threat to the President. Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02. However, it is no defense that a threat to the President is accompanied by religious or political statements. See, e.g., United States v. Callahan, 702 F.2d 964, 966 (11th Cir. 1983), cert. denied 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983).
Thus, the requirement that the defendant recklessly place another person in fear of injury or death substantially answers the defendants' challenge to the portions of the stalking statutes dealing with encounters in public places. Still, it is unclear whether this is a total answer to the defendants' First Amendment arguments. It is possible to imagine troublesome cases brought under the stalking statute. For instance, protesters might repeatedly picket an abortion clinic or the office of the Ku Klux Klan, committing acts of "nonconsensual contact" against the people who work there. (Under AS 11.41.270(b)(3), nonconsensual contact is defined as "any contact with another person that is initiated or continued without that person's consent, . . . includ . . . appearing at the workplace of that person".) Depending upon the emotion and the rhetoric of the protesters, the people working inside might fear injury or death because of the protesters' actions, and there might be close questions as to (1) whether that fear was reasonable, and (2) whether, even if the fear was reasonable, the protesters' actions should still be protected by the First Amendment.
Besides these overbreadth issues (situations where the stalking statutes may infringe constitutional rights), the stalking statutes also present substantive due process issues. Leaving aside the realm of constitutionally protected activities, there are still limits to a legislature's power to regulate or cri
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