The U.S. Supreme Court has said that “true threats” of violence are outside the First Amendment in order to protect individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur. With the Internet and email it has become increasingly easier to communicate threatening messages along with political speech.
Thus, many states have attempted to impose harassment/cyber stalking laws that require the state to prove simply that a defendant’s conduct would cause serious emotional distress to an alleged stalking victim, using a reasonable person standard (of course, beyond a reasonable doubt as in all criminal cases). The New Jersey statute, 2C:33-4.1, requires the communication be sent “knowingly” with “intent to emotionally harm a reasonable person, or place a reasonable person in fear of physical or emotional harm.” In Colorado, on the other hand, the law makes it unlawful to repeatedly communicate with another person in a manner “that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” In either case, there is no requirement that the accused know – or be aware of – the impact of the stalking on the victim.
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