People v. Relerford

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Date: 2018.08.14

Supreme Court 15:51:33 -05'00'

People v. Relerford, 2017 IL 121094

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

Court: WALTER RELERFORD, Appellee.

Docket No. 121094

Filed November 30, 3017

Decision Under Appeal from the Appellate Court for the First District; heard in that

Review court on appeal from the Circuit Court of Cook County, the Hon.

William G. Lacy, Judge, presiding.

Judgment Appellate court judgment affirmed.

Counsel on Lisa Madigan, Attorney General, of Springfield (David L. Franklin,

Appeal Solicitor General, and Michael M. Glick and Garson S. Fischer,

Assistant Attorneys General, of Chicago, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy

Defender, and Jonathan Yeasting, Assistant Appellate Defender, of

the Office of the State Appellate Defender, of Chicago, for appellee.

Steven W. Becker, of Chicago, Eugene Volokh and Gary T. Schwartz,

of Los Angeles, California, and Ilya Shapiro, of Washington, D.C., for

amici curiae Cato Institute et al.

Robert R. Stauffer, Clifford W. Berlow, and Blake P. Sercye, of

Jenner & Block LLP, and Rebecca K. Glenberg, both of Chicago, for

amicus curiae American Civil Liberties Union of Illinois.

Justices JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman,

Burke, and Theis concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, defendant, Walter Relerford,

was convicted of stalking (720 ILCS 5/12-7.3(a)(1), (a)(2) (West 2012)) and cyberstalking

(720 ILCS 5/12-7.5(a)(1), (a)(2) (West 2012)) and was sentenced to serve a prison term of six

years. Defendant appealed. The appellate court declared that the provisions of the stalking and

cyberstalking statutes under which defendant was convicted are facially unconstitutional as

violative of substantive due process and vacated his convictions on that ground. 2016 IL App

(1st) 132531. This court granted the State’s petition for leave to appeal as a matter of right. Ill.

S. Ct. R. 317 (eff. July 1, 2017). We now affirm the judgment of the appellate court, albeit on a

different basis than that relied upon by the appellate court.

¶2 I. BACKGROUND

¶3 Defendant was charged in a four-count indictment with two counts of stalking (720 ILCS

5/12-7.3(a)(1), (a)(2) (West 2012)) and two counts of cyberstalking (720 ILCS 5/12-7.5(a)(1),

(a)(2) (West 2012)). Count I charged defendant with stalking based on allegations that he

(1) called Sonya Blakey, (2) sent her e-mails, (3) stood outside of her place of employment,

and (4) entered her place of employment and that he knew or should have known that this

course of conduct would cause a reasonable person to suffer emotional distress. Count II

charged defendant with stalking based on the same conduct specified in count I but alleged that

he knew or should have known that his conduct would cause a reasonable person to fear for her

safety. Count III charged defendant with cyberstalking based on allegations that he used

electronic communication to make Facebook postings in which he expressed his desire to have

sexual relations with Sonya Blakey and threatened her coworkers, workplace, and employer

and that he knew or should have known that his conduct would cause a reasonable person to

fear for her safety. Count IV charged defendant with cyberstalking based on the same conduct

specified in count III but alleged that he knew or should have known that his conduct would

cause a reasonable person to suffer emotional distress.

¶4 At trial, the State presented evidence of the following relevant facts. Sonya Blakey was

employed by Clear Channel Media and Entertainment (Clear Channel), where she managed

and appeared on-air for a gospel radio station called Inspiration 1390. From May to August

2011, defendant worked as an intern for Inspiration 1390. In September or October 2011, he

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applied for a position as board operator at the station. Blakey and Derrick Brown, one of her

coworkers, interviewed defendant for the position. After the interview, defendant sent Blakey

a follow-up e-mail inquiring as to whether the position had been filled.

¶5 Defendant subsequently was informed that he was not being offered the position. In

response, defendant called and e-mailed Blakey, as well as several of her colleagues, asking

whether he could intern at the station again. Blakey testified that she received about five such

e-mails from defendant. None of these e-mails contained any threatening language.

¶6 In January 2012, Blakey became aware that defendant was also contacting other Clear

Channel employees. At around the same time, Blakey’s manager told her to report any e-mails

or telephone calls that she received from defendant to the human resources department.

According to Blakey, sometime between January and March 2012, Clear Channel took the

position that defendant was not welcome at the station and that Clear Channel employees were

not to respond to his telephone calls and e-mails.

¶7 On one occasion in March 2012, Blakey saw defendant through a window as she was

leaving work. Defendant and several companions were standing on the sidewalk outside of the

office building in which Clear Channel is located. Defendant saw Blakey and waved at her, but

Blakey did not wave back and just continued on her way. Although defendant did not follow

her or verbally communicate with her, this encounter made Blakey feel “a little scared” and “a

little nervous.”

¶8 Sometime around late March or early April 2012, Jeffrey Garceau, an executive assistant to

Clear Channel’s president, directed defendant to stop contacting Clear Channel employees.

¶9 On April 4, 2012, Blakey was finishing her broadcast when defendant walked into the

studio unannounced. Blakey switched her show to automated programming and asked

defendant why he was there. Thereafter, Blakey and one of her colleagues escorted defendant

from the building. Although defendant did not threaten her or put up a struggle while being

escorted from the premises, the incident caused Blakey to feel “very nervous, very startled,

shocked,” and “scared.”

¶ 10 On April 9, 2012, Blakey received an e-mail from defendant apologizing for the studio

visit. In the e-mail, defendant stated, “[m]y intentions were not to startle you or to catch you off

guard.” Blakey conceded that this e-mail did not contain any statements threatening her safety

or the safety of anyone at Clear Channel.

¶ 11 Around the same time that defendant sent the apology e-mail, Blakey learned from a

colleague who was a Facebook friend of defendant that he had made several postings on

Facebook about her. Defendant did not send the Facebook posts directly to Blakey, and

because she was not one of his Facebook friends, she could not view the posts through her own

Facebook account. However, Blakey’s colleague e-mailed the posts to her. The Facebook

posts stated as follows:

“This is a motherfucking order: If my shit gets shut down by any and everyone who

does, dies. You got till Friday at 5:00 p.m. to find some type of job for me with Clear

Channel Chicago, maybe a board op or something. If you don’t, Saturday is going to be

the worst day of your life. That’s a motherfucking order, bitch, ass, punk. Send it

through 100 shundulah jobo ho 1 [sic].”

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“The order: If Sonya’s vagina is not in my mouth by next Friday, bury the entire

Michigan State football team from 1993. That’s the order. Send it through. One

hundred.”

“Just like the folks at Clear Channel think I want to come back to get close to

Sonya, I mean, don’t get me wrong, who wouldn’t want to be close to her? She’s

wonderful and addictive to be around. The truth of the matter is, since I was 10, I’ve

always wanted to work for WGCI, and that was before it was called Clear Channel.

That was back in the 332 South Michigan Avenue days, suite 600. But now, since they

are a. [sic]”

“How am I gay? I want to fuck Sonya. There’s nothing gay about that.”

“I still love you, Sonya. Who gives a shit about that other shit? I’m a man before

anything. I’m not afraid of anyone. Life is bullshit anyway. I wonder what will happen

when I’m dead and gone. I wonder will they just move on to the next person and treat

them the same way they are treating me.

I know everything and I’m still not mad. I’m definitely worried about you, though;

especially since these Chinese people talking about killing everyone on the 27th and

28th floor of Clear Channel. That’s fucked up.

I’ll ride for you, Sonya. But these Chinese people don’t fuck around. I think I’m

going to need to ask Randall for some army weapons to fuck with them. I got your

back.

But if the shit gets rough, you better scratch, bite, kick or do something.”

¶ 12 As a result of the Facebook posts, the management at Clear Channel advised Blakey to stay

home from work until the police located defendant. Blakey took a couple of days off work

because defendant’s actions made her feel afraid for her own safety. Blakey returned to work

after defendant was apprehended on April 12, 2012.

¶ 13 In defense, defendant acknowledged waving to Blakey through the window while he was

standing on the sidewalk in March 2012, but he explained that he often patronized the

businesses and restaurants on the ground floor of the building in which Clear Channel is

located. He also admitted entering the studio on April 4 but stated that he did so only in an

effort to inquire about working at Clear Channel. Defendant conceded that he was “maybe over

persistent” in sending numerous e-mail inquiries about employment opportunities at Clear

Channel, but he denied that he intended any harm in pursuing his long-held career goal of

working there. Defendant denied making the Facebook posts and also denied ever being

notified that he was not to e-mail, call, or visit employees of Clear Channel.

¶ 14 The trial court found defendant “guilty as charged” and subsequently sentenced him to

serve a six-year term for the offense of stalking charged in count I (720 ILCS 5/12-7.3(a)(2)

(West 2012)). The court did not impose sentences on the remaining counts, and the record does

not reflect the reason for the trial court’s failure to do so.

¶ 15 The appellate court vacated all of defendant’s convictions based on its determination that

the terms of subsection (a) of the stalking and cyberstalking statutes violate due process. 2016

IL App (1st) 132531, ¶¶ 27, 31-33. In the appellate court’s view, the United States Supreme

Court’s decision in Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), compelled

invalidation of both statutes on due process grounds because the relevant provisions lack a

mental state requirement. 2016 IL App (1st) 132531, ¶¶ 21, 26-27, 31-33. In vacating

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defendant’s unsentenced convictions on counts II, III, and IV, the appellate court concluded

that it had jurisdiction to address the validity of those convictions under this court’s decision in

People v. Dixon, 91 Ill. 2d 346 (1982). 2016 IL App (1st) 132531, ¶¶ 29-30.

¶ 16 The State appeals from the judgment of the appellate court as a matter of right. Defendant

requests that the appellate court’s judgment be affirmed, arguing that subsection (a) of each

statute is facially unconstitutional because it is overbroad and violates the first amendment as

well as violating substantive due process guarantees. We granted the American Civil Liberties

Union of Illinois, the Cato Institute, and the Marion B. Brechner First Amendment Project

leave to submit briefs as amici curiae in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20,

2010).

¶ 17 II. ANALYSIS

¶ 18 A. Substantive Due Process Under Elonis

¶ 19 On appeal, the State challenges the appellate court’s judgment that the stalking and

cyberstalking statutes are unconstitutional because they violate substantive due process, which

generally requires that criminal conduct be accompanied by a culpable mental state. See

People v. Madrigal, 241 Ill. 2d 463, 467 (2011). In particular, the State argues that the

appellate court erred in holding that the United States Supreme Court’s decision in Elonis, 575

U.S. ___, 135 S. Ct. 2001, compelled invalidation of subsection (a) of the stalking and

cyberstalking statutes on due process grounds because negligence cannot serve as the basis for

criminal liability. We agree that the appellate court erred in vacating defendant’s convictions

based on Elonis.

¶ 20 In Elonis, the Supreme Court addressed the question of which mental state would be

inferred to apply in a federal criminal statute that does not specify a mens rea requirement. Id.

at ___, 135 S. Ct. at 2008-09. The Court recognized that, because criminal offenses generally

require proof of a “guilty mind,” courts typically interpret a criminal statute to require a

criminal mens rea, even if the statute fails to include an applicable scienter requirement. Id. at

___, 135 S. Ct. at 2009. The Supreme Court observed that, although the negligence standard is

commonly applied in assessing civil tort liability, federal courts “ ‘have long been reluctant to

infer that a negligence standard was intended in criminal statutes.’ ” (Emphasis added.). Id. at

___, 135 S. Ct. at 2011 (quoting Rogers v. United States, 422 U.S. 35, 47 (1975) (Marshall, J.,

concurring, joined by Douglas, J.) (citing Morissette v. United States, 342 U.S. 246 (1952))).

Because the federal statute at issue in Elonis prohibited the transmission of threats in interstate

commerce but did not specify a required mental state, the Court inferred that the government

must prove the defendant either intended to issue threats or knew that his communications

would be viewed as threats. Id. at ___, 135 S. Ct. at 2012. However, the Court also

acknowledged that, if Congress had intended to criminalize reckless or negligent conduct, it

could have done so specifically. Id. at ___, 135 S. Ct. at 2010 (citing Liparota v. United States,

471 U.S. 419, 427 (1985)).

¶ 21 We agree with the State that the appellate court’s reasoning is flawed. Elonis was not a due

process case, and the Supreme Court did not engage in any due process analysis. Rather, Elonis

merely decided a question of statutory interpretation and determined that, where the subject

criminal statute was silent as to mens rea, a mental state of intent or knowledge would suffice.

Id. at ___, 135 S. Ct. at 2012. On several occasions, this court has similarly inferred a requisite

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mental state where the statute is silent as to mens rea. See People v. Anderson, 148 Ill. 2d 15,

23-24 (1992); People v. Tolliver, 147 Ill. 2d 397, 400-03 (1992); People v. Gean, 143 Ill. 2d

281, 287-89 (1991); People v. Sevilla, 132 Ill. 2d 113, 120, 123 (1989). But these cases, like

Elonis, have no bearing on the case before us because, as set forth below, the statutory

provisions at issue here are not silent as to mental state.

¶ 22 Further, the appellate court’s conclusion that due process does not permit criminal liability

based on negligent conduct is unfounded. Indeed, Elonis acknowledged that criminal

negligence has been recognized as a valid basis for imposing criminal liability. See Elonis, 525

U.S. at ___, 135 S. Ct. at 2011 (citing Model Penal Code § 2.02(2)(d) (Am. Law Inst. 1985),

and 1 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 5.4, at 372-73 (2d ed.

2003)). Also, the Criminal Code of 2012 includes both recklessness and negligence as

permissible mental states, and absolute liability is permitted in certain limited circumstances.

See 720 ILCS 5/4-6, 4-7, 4-9 (West 2012). Contrary to the views expressed by the appellate

court, substantive due process does not categorically rule out negligence as a permissible

mental state for imposition of criminal liability, and Elonis does not suggest such a categorical

rule. Therefore, we reject the appellate court’s reasoning and its determination that Elonis

mandates invalidation of the statutory provisions at issue here.

¶ 23 B. First Amendment

¶ 24 Defendant does not seek affirmance under Elonis but argues that the appellate court’s

judgment should be sustained for other reasons. Defendant’s primary argument to this court is

that the stalking and cyberstalking provisions under which he was convicted are facially

unconstitutional because they violate the right to free speech as guaranteed under the United

States and Illinois Constitutions. U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4. He also

argues that the relevant provisions violate substantive due process guarantees because they

improperly criminalize innocent conduct. The State opposes both contentions.

¶ 25 We first consider defendant’s argument that the relevant statutory provisions are facially

unconstitutional because they violate the right to free speech under the first amendment. We

begin by examining the history and terms of the stalking statute as they relate to defendant’s

conviction under count I.

¶ 26 Illinois’s first stalking statute, enacted in 1992, defined the offense as requiring an

intentional threat of a violent crime plus multiple acts of following or surveillance in

furtherance of the threat. See 720 ILCS 5/12-7.3(a) (West 1992). The statute was subsequently

modified to require that the defendant’s actions be undertaken “knowingly and without lawful

justification.” 720 ILCS 5/12-7.3(a) (West 1994). This court held that the threat-focused

version of subsection (a) was not unconstitutionally overbroad because the speech prohibited

by the statute was an integral part of unlawful conduct. See People v. Bailey, 167 Ill. 2d 210,

227 (1995). This conclusion was premised on the fact that the statute encompassed only

activities performed without lawful authority and required that the defendant actually threaten

the victim and take action in furtherance of the threat. Id. at 227-28.

¶ 27 With the adoption of amendments that became effective in 2010, the legislature greatly

expanded the definition of the offense of stalking. See Pub. Act 96-686, § 5 (eff. Jan. 1, 2010).

The previous threat-focused definition of stalking was retained and renumbered as subsection

(a-3). 720 ILCS 5/12-7.3(a-3) (West 2012). However, the legislature also crafted new statutory

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language to include additional conduct in the definition of the offense. The new language

significantly broadened the types of conduct proscribed under the statute and eliminated the

requirement of a threat from subsection (a).

¶ 28 The current version of subsection (a) of the stalking statute provides as follows:

“A person commits stalking when he or she knowingly engages in a course of conduct

directed at a specific person, and he or she knows or should know that this course of

conduct would cause a reasonable person to:

(1) fear for his or her safety or the safety of a third person; or

(2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a)(1), (a)(2) (West

2012).

The phrase “course of conduct” is defined in subsection (c) as:

“2 or more acts, including but not limited to acts in which a defendant directly,

indirectly, or through third parties, by any action, method, device, or means follows,

monitors, observes, surveils, threatens, or communicates to or about, a person, engages

in other non-consensual contact, or interferes with or damages a person’s property or

pet. A course of conduct may include contact via electronic communications.” 720

ILCS 5/12-7.3(c)(1) (West 2012).

In addition, subsection (c) defines “emotional distress” as “significant mental suffering,

anxiety or alarm.” 720 ILCS 5/12-7.3(c)(3) (West 2012). The phrase “reasonable person” is

defined as “a person in the victim’s situation.” 720 ILCS 5/12-7.3(c)(8) (West 2012). 1

Subsection (c) defines “non-consensual contact” as “any contact with the victim that is

initiated or continued without the victim’s consent.” 720 ILCS 5/12-7.3(c)(6) (West 2012).

Under that provision, “non-consensual contact” includes “being in the physical presence of the

victim; appearing within the sight of the victim; approaching or confronting the victim in a

public place or on private property; appearing at the workplace or residence of the victim.” Id.

¶ 29 Under the terms of the amended statute, two or more nonconsensual communications to or

about a person that the defendant knows or should know would cause a reasonable person to

suffer emotional distress constitute a course of conduct sufficient to establish the offense of

stalking. See 720 ILCS 5/12-7.3(a), (c) (West 2012); see also People v. Douglas, 2014 IL App

(5th) 120155, ¶ 41 (holding that only “non-consensual” communications fall within the

prohibition of subsection (a)). Defendant contends that the new provisions, criminalizing

communications to or about a person that negligently would cause a reasonable person to

suffer emotional distress, violate the first amendment. U.S. Const., amend. I.2

¶ 30 In general, statutes are presumed constitutional, and the party challenging the

constitutionality of a statute carries the burden of proving that the statute is unconstitutional.

1

These provisions of the stalking statute are substantially similar to corresponding provisions in the

cyberstalking statute. However, the definition of cyberstalking in subsection (a) of that statute

additionally requires that the defendant “us[e] electronic communication” in committing the offense.

See 720 ILCS 5/12-7.5(a), (c) (West 2012).

2

We note that, although defendant did not raise his first amendment facial challenge in the circuit

court, the argument was raised on appeal. See People v. Thompson, 2015 IL 118151, ¶ 32 (recognizing

that a facial challenge to a criminal statute, asserting that it is void ab initio, may be raised at any time).

The State does not dispute that the argument is properly before this court.

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People v. Hollins, 2012 IL 112754, ¶ 13. The primary objective in construing a statute is to

ascertain and give effect to the legislature’s intent in enacting the statute. People v. Gutman,

2011 IL 110338, ¶ 12. This court has a duty to construe the statute in a manner that upholds the

statute’s validity and constitutionality if reasonably possible. Hollins, 2012 IL 112754, ¶ 13.

The determination of whether a statute is constitutional is a question of law to be reviewed

de novo. Id.

¶ 31 The first amendment, which applies to the states through the fourteenth amendment,

precludes the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I,

XIV. Under this amendment, a government “has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.” (Internal quotation marks omitted.)

Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). Therefore, “[t]he

Constitution gives significant protection from overbroad laws that chill speech within the First

Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coalition, 535 U.S. 234,

244 (2002).

¶ 32 Content-based laws, which target speech based on its communicative content, are

presumed to be invalid. United States v. Stevens, 559 U.S. 460, 468 (2010); see also People v.

Alexander, 204 Ill. 2d 472, 476 (2003). In addition to restrictions that are facially content

based, the United States Supreme Court has “recognized a separate and additional category of

laws that, though facially content neutral, will be considered content-based regulations of

speech” because they “cannot be ‘ “justified without reference to the content of the regulated

speech.” ’ ” Reed v. Town of Gilbert, 576 U.S. ___, ___, 135 S. Ct. 2218, 2227 (2015) (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), quoting Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293 (1984)).

¶ 33 However, the United States Supreme Court has recognized that certain “historic and

traditional” categories of expression do not fall within the protections of the first amendment,

and content-based restrictions with regard to those recognized categories of speech have been

upheld. (Internal quotation marks omitted.) United States v. Alvarez, 567 U.S. 709, 717 (2012);

Alexander, 204 Ill. 2d at 476-77. Those accepted categories of unprotected speech include true

threats (see Watts v. United States, 394 U.S. 705 (1969) (per curiam)) and speech integral to

criminal conduct (see Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949)).

¶ 34 Of relevance here, 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. See

Reed, 576 U.S. at ___, 135 S. Ct. at 2227; see also Matal v. Tam, 582 U.S. ___, ___, 137 S. Ct.

1744, 1764-65 (2017) (plurality opinion) (holding that the “disparagement clause,” which

prohibits federal registration of a trademark based on its offensive content, violates the first

amendment). The State essentially concedes this point by failing to present any argument to the

contrary and by contending that the terms of subsection (a) survive the strict scrutiny standard

applicable to content-based restrictions.

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¶ 35 The State argues, however, that the communications prohibited in subsection (a) do not

unconstitutionally encroach on the right to speech because they are categorically unprotected

by the first amendment. In particular, the State claims that “communicat[ions] to or about” a

person are exempt from first amendment protection because they fall within either the

exception for true threats or the exception applicable to speech that is integral to criminal

conduct. We disagree.

¶ 36 1. True Threats

¶ 37 With regard to the exception for true threats, the Supreme Court has held that a

communication qualifies as a true threat if it contains a “serious expression of an intent to

commit an act of unlawful violence.” Virginia v. Black, 538 U.S. 343, 359 (2003); see also

Watts, 394 U.S. at 708 (holding that political hyperbole does not constitute a true threat and,

therefore, is protected by the first amendment).

¶ 38 The State offers no cogent argument as to how a communication to or about a person that

negligently would cause a reasonable person to suffer emotional distress fits into the

established jurisprudence on true threats. The State does not explain how such a

communication, without more, constitutes a “serious expression of an intent to commit an act

of unlawful violence.” Black, 538 U.S. at 359. Moreover, it is unclear whether the true threat

exemption from the first amendment would apply to a statement made with innocent intent but

which negligently conveys a message that a reasonable person would perceive to be

threatening. Compare United States v. Cassel, 408 F.3d 622, 632-33 (9th Cir. 2009)

(interpreting the Supreme Court’s decision in Black as indicating that speech is unprotected

under the first amendment only if the speaker subjectively intended the speech as a threat),

with State v. Johnston, 127 P.3d 707, 710 (Wash. 2006) (adopting an objective standard for

statements that may be understood to convey a threat, even if the speaker did not so intend).

The State does not attempt to reconcile this conflicting precedent.

¶ 39 However, we need not resolve that question here to dispose of the State’s argument.

Subsection (a) of the stalking statute specifically includes the making of threats as an

independent basis of a course of conduct. The prohibition against distressing communications

to or about a person stands separate and apart from the proscription against threats. Therefore,

even assuming that statements which negligently convey a threat are not protected, a course of

conduct based on such statements could be prosecuted under the threat portion of subsection

(a). If distressing communications to or about a person are construed to refer to “true threats,”

as the State’s argument suggests, then the language proscribing threats would be superfluous.

Such a construction must be rejected because this court presumes that each part of a statute has

meaning, and we will not construe a statute to render any part of it superfluous or redundant.

People v. Baskerville, 2012 IL 111056, ¶ 25. Consequently, even if the negligent

communication of a threatening message is unprotected, the State’s argument fails.

¶ 40 2. Speech Integrally Related to Criminal Conduct

¶ 41 The State next contends that first amendment protections are not implicated because

subsection (a) of the stalking statute is targeted at regulating conduct and not speech. In the

State’s view, because subsection (a) criminalizes only a “course of conduct,” the prohibited

actions do not fall within the protection of the first amendment. In support, the State relies on

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the Supreme Court’s decision in United States v. O’Brien, which held that “when ‘speech’ and

‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important

governmental interest in regulating the nonspeech element can justify incidental limitations on

First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376 (1968).

¶ 42 The State’s reliance on O’Brien is misplaced because nothing in subsection (a) requires

that speech and nonspeech elements be combined. Although the plain language of subsection

(a) prohibits a “course of conduct,” each of the actions identified in that subsection stands

alone as actions that can form the basis of the course of conduct. Among the particularly

specified actions are “communicat[ions] to or about” a person that the defendant knows or

should know would cause a reasonable person to suffer emotional distress. The

communications need not be accompanied by any other action to form the predicate for a

prohibited course of conduct. As subsection (a) is written, two or more such communications

are sufficient to form a course of conduct and warrant prosecution under subsection (a).

¶ 43 The State maintains, however, that the phrase “communicates to or about” does not

implicate first amendment rights because it relates to speech that is integral to criminal

conduct. The State’s contention is wrong. The rule cited by the State applies when the speech is

“an integral part of conduct in violation of a valid criminal statute.” Giboney, 336 U.S. at 498.

¶ 44 Thus, speech is “fully outside” the protection of the first amendment when it is a

mechanism or instrumentality in the commission of a separate unlawful act. Stevens, 559 U.S.

at 471. According to the Supreme Court, this rule applies only where there is a “ ‘proximate

link’ ” between the speech at issue and the criminal conduct. Id. (quoting Ashcroft v. Free

Speech Coalition, 535 U.S. at 249-50). Consequently, the State’s reliance on New York v.

Ferber, 458 U.S. 747 (1982), which upheld a ban on child pornography, is misplaced.

¶ 45 Here, subsection (a) does not require that the prohibited communications be in furtherance

of an unlawful purpose. As such, there is no “proximate link” between the restricted

communications and some other criminal act. In light of the fact that a course of conduct can be

premised exclusively on two communications to or about a person, this aspect of subsection (a)

is a direct limitation on speech that does not require any relationship—integral or

otherwise—to unlawful conduct. Under subsection (a), the speech is the criminal act.

¶ 46 The State’s argument is not bolstered by its reliance on United States v. Osinger, 753 F.3d

939 (9th Cir. 2014), United States v. Sayer, 748 F.3d 425 (1st Cir. 2014), and United States v.

Petrovic, 701 F.3d 849 (8th Cir. 2012). Each of those cases upheld the constitutionality of the

federal stalking statute, which explicitly requires that the defendant have the intent to kill,

injure, harass, or intimidate the victim. See 18 U.S.C. § 2261A (2012). Because the federal

stalking statute requires intent to commit an unlawful act and does not impose criminal liability

for negligent conduct, the decisions in Osinger, Sayer, and Petrovic provide no guidance in

this case.

¶ 47 Also, we note that courts in other jurisdictions have rejected similar arguments as a

justification for upholding statutes that are comparable to subsection (a). See State v. Bishop,

787 S.E.2d 814, 817-18 (N.C. 2016); People v. Marquan M., 19 N.E.3d 480 (N.Y. 2014); State

v. Machholz, 574 N.W.2d 415 (Minn. 1998).

¶ 48 Because the speech restrictions imposed by subsection (a) do not fit within any of the

“historic and traditional” categories of unprotected speech, we review defendant’s argument

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under the overbreadth doctrine. See generally Stevens, 559 U.S. at 471-72.

¶ 49 3. Overbreadth

¶ 50 A statute is overbroad on its face if it prohibits constitutionally protected activity as well as

activity that may be prohibited without offending constitutional rights. Grayned v. City of

Rockford, 408 U.S. 104, 114 (1972). Consequently, the overbreadth doctrine permits a party to

challenge a statute as a facial violation of the first amendment, even if that party’s conduct

would not fall within the amendment’s protection. Broadrick v. Oklahoma, 413 U.S. 601, 612

(1973); People v. Minnis, 2016 IL 119563, ¶ 14. The justification for allowing an overbreadth

challenge is the important goal of avoiding the potential chilling effect that overbroad statutes

have on the exercise of protected speech. Virginia v. Hicks, 539 U.S. 113, 119 (2003); Board of

Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).

¶ 51 A statute “may be invalidated as overbroad if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” Stevens, 559

U.S. at 473 (quoting Washington State Grange v. Washington State Republican Party, 552

U.S. 442, 449 n.6 (2008)). Given its limited application, the Supreme Court has observed that

the overbreadth doctrine should be applied “only as a last resort” and only if the degree of

overbreadth is substantial and the statute is not subject to a limiting construction. Broadrick,

413 U.S. at 613.

¶ 52 The initial step in overbreadth analysis is to examine the challenged legislation because “it

is impossible to determine whether a statute reaches too far without first knowing what the

statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). As set forth above,

subsection (a) of the stalking statute defines the offense of stalking to include a course of

conduct evidenced by two or more nonconsensual communications to or about a person that

the defendant knows or should know would cause a reasonable person to suffer emotional

distress. 720 ILCS 5/12-7.3(a)(2), (c) (West 2012); Douglas, 2014 IL App (5th) 120455, ¶ 41.

That provision, therefore, imposes a content-based restriction on speech and criminalizes

communications to or about a person that negligently would cause a reasonable person to

suffer emotional distress. As amended in 2010, subsection (a) embraces a vast array of

circumstances that limit speech far beyond the generally understood meaning of stalking.

Indeed, the amended provision criminalizes any number of commonplace situations in which

an individual engages in expressive activity that he or she should know will cause another

person to suffer emotional distress. The broad sweep of subsection (a) reaches a host of social

interactions that a person would find distressing but are clearly understood to fall within the

protections of the first amendment.

¶ 53 For example, subsection (a) prohibits a person from attending town meetings at which he

or she repeatedly complains about pollution caused by a local business owner and advocates

for a boycott of the business. Such a person could be prosecuted under subsection (a) if he or

she persists in complaining after being told to stop by the owner of the business and the person

knows or should know that the complaints will cause the business owner to suffer emotional

distress due to the economic impact of a possible boycott.

¶ 54 The communications described above would be criminal even though they constitute

speech in a public forum about a matter of public concern—a quintessential example of the

type of speech that is protected by the first amendment. See Snyder v. Phelps, 562 U.S. 443,

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451-52 (2011) (recognizing that speech on issues of public concern is “at the heart” of the first

amendment’s protection (internal quotation marks omitted)); New York Times Co. v. Sullivan,

376 U.S. 254, 270 (1964) (noting that the first amendment reflects “a profound national

commitment to the principle that debate on public issues should be uninhibited, robust, and

wide-open”); Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (holding that “speech

concerning public affairs is more than self-expression; it is the essence of self-government”).

As the Supreme Court has observed, “speech on public issues occupies the highest rung of the

hierarchy of First Amendment values, and is entitled to special protection.” (Internal quotation

marks omitted.) Connick v. Myers, 461 U.S. 138, 145 (1983).

¶ 55 Indeed, even core political speech could be prosecuted under subsection (a) if the speaker

knows or should know that the substance of his or her comments would cause a reasonable

person to suffer emotional distress. This result would contravene the very purpose of the first

amendment, which “ ‘was fashioned to assure unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.’ ” Sullivan, 376 U.S. at 269

(quoting Roth v. United States, 354 U.S. 476, 484 (1957)); see also Turner Broadcasting

System, Inc. v. Federal Communications Comm’n, 512 U.S. 622, 641 (1994) (recognizing that

our political system and cultural life are premised on the notion that “[a]t the heart of the First

Amendment lies the principle that each person should decide for himself or herself the ideas

and beliefs deserving of expression, consideration, and adherence”).

¶ 56 The Supreme Court has acknowledged that “[m]ost of what we say to one another lacks

‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone

serious value), but it is still sheltered from Government regulation.” (Emphasis in original.)

Stevens, 559 U.S. at 479. Given the wide-ranging scope of the first amendment, its protection

presumptively extends to many forms of speech that would fall within the broad spectrum of

speech restricted by subsection (a).

¶ 57 We reject the State’s assertion, made at oral argument, that the phrase “directed at”

sufficiently narrows the scope of subsection (a) to insulate it from a first amendment challenge.

This assertion suggests that the “directed at” language brings the prohibition against

communications to or about a person within the category of speech that is unprotected under

Rowan v. United States Post Office Department, 397 U.S. 728 (1970) (holding that

nonconsensual one-to-one communications that impinge on the privacy rights of the recipient

are not protected under the first amendment). However, the plain meaning of the phrase

“directed at” does not limit its application to one-to-one communications affecting the right to

privacy or prevent prosecution for communication in a public forum where the victim is a

known or intended recipient of the message.

¶ 58 The example of the person voicing complaints during a town meeting about pollution

caused by a local business illustrates the point. If the business owner is present at the town

meetings, the complaints would be “directed at” him or her and could be the basis of a

prosecution under subsection (a) even though the complaints would not fall into Rowan’s

one-to-one exception from the first amendment.

¶ 59 Moreover, it is unclear from the State’s suggestion whether the phrase “directed at”

includes communications about the victim that are intended to be seen or heard by other people

but not the victim. If so, such a situation is greatly attenuated from the circumstances

contemplated by Rowan and would extend the scope of subsection (a) far beyond the

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reasonable limits of the Supreme Court’s holding in that case. Nothing in the State’s argument

before this court clarifies how inclusion of the phrase “directed at” prevents the application of

subsection (a) to circumstances that are not covered under Rowan.

¶ 60 A limiting construction should be imposed on a statute only where the statute is “ ‘ “readily

susceptible” to such a construction.’ ” Stevens, 559 U.S. at 481 (quoting Reno v. American

Civil Liberties Union, 521 U.S. 844, 884 (1997)). Based on the above, we do not believe the

“directed at” language can be interpreted to sufficiently narrow the scope of subsection (a) to

avoid the infringement of first amendment rights. Accordingly, we find that the statute is not

“readily susceptible” to the State’s suggested limiting construction. See id.

¶ 61 We also reject the State’s argument that the exemption in subsection (d)(2) of the stalking

statute avoids any constitutional defect in the terms of subsection (a). The exemption on which

the State relies states that “[t]his [s]ection does not apply to an exercise of the right to free

speech or assembly that is otherwise lawful.” 720 ILCS 5/12-7.3(d)(2) (West 2012). Yet, as

was true with the earlier threat-focused version of subsection (a), the exemption contains no

language that would actually prevent the prosecution of charges based on protected speech.

Rather, the exemption is correctly viewed to function as an affirmative defense that must be

raised by a defendant at trial after a prosecution has been initiated. As such, the exemption

cannot eliminate the chilling effect on protected speech and resulting self-censorship.

¶ 62 Contrary to the State’s assertion, the exemption does not prevent unwarranted prosecutions

under a case-by-case application of the “communicates to or about” language. Nothing in the

language of subsection (a) explicitly differentiates between distressing communications that

are subject to prosecution and those that are not—and the State has not offered any guidance as

to how Illinois citizens should tease out that difference. A case-by-case discretionary decision

by law enforcement officers and prosecutors does not solve the problem of the chilling effect

on innocent speakers who fear prosecution based on negligently made distressing

communications to or about a person. We conclude that subsection (d)(2) is insufficient to

remediate the extreme overbreadth of subsection (a) and cannot by itself make the terms of that

provision constitutional. See generally Ashcroft v. American Civil Liberties Union, 542 U.S.

656, 670-71 (2004); Ashcroft v. Free Speech Coalition, 535 U.S. at 255; see also United States

v. Stevens, 533 F.3d 218, 231 n.13 (3rd Cir. 2008) (en banc) (observing that, where a statutory

exemption functions as an affirmative defense, it “poses an even greater threat to chill

constitutional speech”).

¶ 63 Given the wide range of constitutionally protected activity covered by subsection (a), we

conclude that a substantial number of its applications are unconstitutional when judged in

relation to its legitimate sweep. See Stevens, 559 U.S. at 473. Accordingly, the degree of

overbreadth is substantial, rendering subsection (a) overbroad on its face. We hold that the

portion of subsection (a) of the stalking statute that makes it criminal to negligently

“communicate[ ] to or about” a person, where the speaker knows or should know the

communication would cause a reasonable person to suffer emotional distress, is facially

unconstitutional. Additionally, because subsection (a) of the cyberstalking statute imposes

criminal liability based on similar language, it is unconstitutionally overbroad as well. See 720

ILCS 5/12-7.5(a) (West 2012).

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¶ 64 C. Severability and Validity of

Defendant’s Convictions on Other Grounds

¶ 65 Public Act 96-686, which added the language “communicates to or about” a person to the

definitions of stalking and cyberstalking, specifically states that its provisions are severable

under section 1.31 of the Statute on Statutes (5 ILCS 70/1.31 (West 2012)). See Pub. Act

96-686, § 97 (eff. Jan. 1, 2010). Therefore, the phrase “communicates to or about” must be

stricken from subsection (a) in each statute. Accordingly, we address whether defendant’s

convictions can be sustained based on other conduct prohibited by the stalking and

cyberstalking statutes.

¶ 66 Under counts I and II, defendant was charged with calling and e-mailing Blakey. However,

because there is no evidence that any of the calls or e-mails were threatening, they cannot be

considered as part of a course of conduct under subsection (a). Consequently, we consider

whether the convictions under counts I and II may be upheld based on any other conduct

occurring after Garceau issued the “no-contact” directive in late March or early April 2012.3

¶ 67 Regarding defendant’s wave to Blakey through a window from outside the Clear Channel

office building, the record does not establish that this action constitutes nonconsensual contact

under subsection (c)(6). Although Blakey testified that the incident occurred sometime in

March 2012, she did not identify the exact date. In addition, although Blakey indicated that the

incident occurred at a time when defendant was not welcome at the radio station, her testimony

did not affirmatively establish that it occurred after the “no-contact” directive by Garceau.

Therefore, this incident cannot be considered as part of a course of conduct for purposes of

counts I and II.

¶ 68 What remains is the uninvited studio visit on April 4, which did occur after Garceau

directed defendant to cease all contact with Clear Channel employees. Although this incident

would constitute nonconsensual contact under subsection (c)(6), it amounts to a single instance

of such contact and is insufficient to establish a course of conduct requiring two or more acts.

See 720 ILCS 5/12-7.3(c)(1), (c)(6) (West 2012).

¶ 69 Counts III and IV were predicated exclusively on communications about Blakey in the

Facebook posts. None of those posts included any language that can be construed as a threat

specifically directed at her, and counts III and IV alleged only that defendant had threatened

Blakey’s coworkers, workplace, and employer. As a whole, the Facebook posts are vulgar and

intrusive, but they cannot be characterized as conveying a threat against Blakey. Moreover,

even if the first Facebook post could be seen as threatening to all Clear Channel employees,

including Blakey, it amounts to only one such communication. A single Facebook post does

not establish a course of conduct under subsection (a) of the cyberstalking statute.

Accordingly, all four of defendant’s convictions must be vacated.

¶ 70 D. Invalidation of the Unsentenced Convictions

¶ 71 As a final matter, we address the appellate court’s decision to address the validity of

defendant’s unsentenced convictions under counts II, III, and IV. The appellate court

3

Although the “no-contact” directive was not issued by Blakey personally, defendant does not

argue that Garceau lacked authority to issue the directive on her behalf as one of Clear Channel’s

employees.

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acknowledged that its jurisdiction extends only to final judgments and that there is no final

judgment in a criminal case unless sentence has been imposed. 2016 IL App (1st) 132531, ¶ 29

(citing Ill. Const. 1970, art. VI, § 6, and People v. Flores, 128 Ill. 2d 66, 95 (1989)). The court

concluded, however, that it had jurisdiction to address the unsentenced convictions based on

this court’s decision in Dixon, 91 Ill. 2d 346. We find the appellate court’s conclusion to be

unwarranted under the circumstances of this case.

¶ 72 In Dixon, the circuit court incorrectly determined that two of the defendant’s convictions

merged into two other, more serious convictions. Id. at 349. As a consequence, the circuit court

did not impose sentence on the lesser offenses. Id. The defendant appealed only the two

sentenced convictions. Id. at 353. In response, the State requested that the appellate court

remand the cause for imposition of sentences on the lesser offenses. Id. at 349. The appellate

court reversed one of the sentenced convictions and affirmed the other but refused the State’s

request to remand the cause for sentencing on the convictions for the lesser offenses. Id.

¶ 73 The State appealed, arguing that the appellate court’s refusal to remand was erroneous. Id.

This court agreed, finding that the situation presented in that case was “an anomalous one.” Id.

at 353. This court held that, although the unsentenced convictions were nonfinal orders, the

appellate court had jurisdiction to order a remand for imposition of sentence because the

defendant had appealed the final judgments entered on the sentenced convictions and because

the convictions on the lesser offenses were “intimately related to and ‘dependent upon’ ” the

sentenced convictions appealed by the defendant. Id. at 353-54 (citing Ill. S. Ct. R. 615(b)(2)).

¶ 74 We find that the appellate court’s reliance on Dixon in this case is misplaced for two

reasons. First, Dixon is distinguishable on its facts. As this court stated, the situation

underlying that decision was “anomalous” because the circuit court determined, albeit

incorrectly, that sentences could not be imposed on the lesser offenses because they merged

into the other offenses. In our view, the decision in Dixon must be understood to be limited to

the type of factual situation presented in that case, which does not exist here. We have no such

explanation for the circuit court’s failure to impose sentences on counts II, III, and IV. The

record is simply silent as to the reason for the court’s action—or inaction—in this case.

¶ 75 Second, we believe that Dixon must be given a narrower interpretation than the one

assumed by the appellate court. A close reading of Dixon makes clear that, to the extent the

appellate court had any jurisdiction to address the nonfinal convictions, that jurisdiction was

limited to ordering a remand for imposition of sentences on the lesser convictions. In this case,

the appellate court’s conclusion that it was authorized to consider the merits of defendant’s

unsentenced convictions under counts II, III, and IV reads Dixon too broadly and extends that

decision beyond its reasonable limits. We hold, therefore, that the appellate court lacked

jurisdiction to decide the validity of defendant’s unsentenced convictions.

¶ 76 This court, however, has general administrative and supervisory authority over all courts

under section 16 of the judicial article of the Illinois Constitution. Ill. Const. 1970, art. VI,

§ 16. In the exercise of this court’s supervisory authority, we opt to exercise jurisdiction over

the unsentenced convictions in counts II, III, and IV here. See e.g., McDunn v. Williams, 156

Ill. 2d 288, 299-304 (1993). Because all of defendant’s convictions were based on provisions

that are unconstitutionally overbroad and violative of the first amendment and because those

convictions cannot be sustained on other grounds, we vacate defendant’s convictions under all

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four counts of the indictment.

¶ 77 III. CONCLUSION

¶ 78 In sum, the terms of subsection (a) of the stalking and cyberstalking statutes violate the first

amendment because they are overbroad in that they impermissibly infringe on the right to free

speech. Accordingly, the phrase “communicates to or about” is stricken from those provisions.

Because defendant’s convictions under those provisions cannot be sustained based on other

conduct, his convictions must be vacated, and we affirm the judgment of the appellate court. In

light of our resolution of the first amendment issue, we need not address the remaining

arguments of the parties.

¶ 79 Appellate court judgment affirmed.

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