On March 22, 2019, a three-judge appellate panel decided the Camden county case of State v. B.A. The principal issue was whether New Jersey’s stalking statute is unconstitutionally overbroad or vague. Judge Suter held in relevant part as follows.
Defendant challenges the anti-stalking statute as unconstitutionally overbroad and vague both facially and as applied. When considering overbreadth, the “first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982).
Defendant argues the statute is overbroad because its definition of “course of conduct” in N.J.S.A. 2C:12-10(a)(1) uses the phrase “communicating to or about, a person.” Defendant’s analysis stops there, however, without any reference to, or consideration of, the rest of the statute. We said-regarding a similar challenge to the 1996 version of the statute-that “course of conduct” and the phrases used within its definition “cannot be considered in isolation from the balance of the statute, which clearly limits its reach.” Those limitations existed then and now in the statute: the speech or conduct has to be “directed at a specific person”; the conduct has to be engaged in “purposefully or knowingly” by the defendant; the statute limits the nature of the prohibited activity to a course of conduct that “would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress”; the “emotional distress” must be “significant”; and the “fear” is objectively based, meaning the fear “which a reasonable victim, similarly situated, would have under the circumstances.”
Although the 2009 amendment to the definition of course of conduct added additional protection for victims, it did not do so in a way that extended it to a “substantial amount of constitutionally protected conduct,” because of the other limitations in the statute. Defendant’s analysis fails to take these restrictions into consideration. Thus, we reject defendant’s facial overbreadth challenge; it is neither “real” nor “substantial” when “judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Okla. (1973).
The requirement that the conduct underlying a stalking charge cause a reasonable person to fear for their or another’s safety or suffer other emotional distress is the key to saving the statute from violating the constitution. Still, the mere causing of “emotional distress” seems more akin to a tort or civil offense than a criminal offense.