Frog Eyes and Pig Butts: The North Carolina Stalking Statute's Constitutional Dilemma and How To Remedy It.

INTRODUCTION 481 I. THE PROBLEM: THE NEED FOR STALKING LAWS, THE FIRST AMENDMENT CONFLICT, AND THE DILEMMA OF MAZUR AND SHACKELFORD 485 A. The History of Stalking Statutes 485 B. [...]
In State v. Mazur, the North Carolina Court of Appeals found that the state's felony stalking statute created a constitutional prohibition on criminal conduct and did not implicate any protected speech. Only months later, a different panel of the same court, in State v. Shackelford, held that the statute actually created a content-based restriction that unconstitutionally infringed on the defendant's First Amendment rights. These conflicting analyses did not rest on the factual differences between the two cases, although there were many. Rather, the disparity arose from how the two panels applied existing First Amendment jurisprudence. The conflicting applications highlight the First Amendment dilemma presented by stalking statutes, a dilemma that this Comment attempts to solve. Stalking statutes must balance two competing interests. On the one hand, stalking is a serious problem, causing significant physical, financial, and emotional harm to victims. One of the primary ways stalkers inflict these harms is through sending harassing messages. Thus, victims need laws that can protect them from harassing communications by stalkers. However, when taken too far, stalking laws can reach beyond harassing communications and start to infringe on the constitutionally protected speech of defendants. Therefore, to survive constitutional challenge, stalking statutes must be broad enough to protect victims yet narrow enough to leave defendants' First Amendment rights uninfringed. To solve this dilemma, this Comment uses the Mazur and Shackelford decisions to illustrate why North Carolina's current stalking statute creates a content-based restriction that requires strict scrutiny. But rather than dooming stalking statutes, this Comment argues that strict scrutiny is actually the appropriate vehicle for balancing the competing interests of victims and defendants. Because stalking communications lie at the intersection of three areas of less protected speech--unwanted one-to-one speech, speech that invades a reasonable expectation of privacy, and speech that inflicts substantial emotional distress--a stalking statute limited by these three criteria should survive strict scrutiny. Not only would this statute advance the compelling state interests of safety and security, but it would also be narrowly tailored by three different lines of First Amendment jurisprudence. Stalking remains a serious problem in the United States. To address it, legislatures cannot pass overly broad statutes that lend themselves to misapplication and facial challenges. Instead, this Comment offers a proposed provision that strikes a balance between competing interests and complies with existing precedent. In doing so, it hopes to provide a model for legislatures and courts to follow when wrestling with the constitutional dilemma posed by stalking statutes.