In 1997, the Virginia Court of Appeals ruled that the Commonwealth’s stalking statute was not unconstitutionally overbroad under the First Amendment. Parker v. Commonwealth, 24 Va. App. 681, 690-91 (1997), cert denied 1998 U.S. LEXIS 2519. But the General Assembly materially altered the statute since that decision, in 2001 and 2016, as noted in the above footnotes [in his brief to the court], and discussed further below. When the Virginia Supreme Court reviewed the statute in 1997, the law provided simply that a person is guilty of stalking if he or she

“on more than one occasion engages in conduct directed at another person with the intent to place, or with the knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s spouse or child.”

Id. at 684-85 (emphasis added). The Supreme Court at that time explained that the statute

“regulates the manner in which individuals interrelate with one another and prohibits individuals from communicating with others in a way that is intended or known to cause fear of physical harm. Code § 18.2-60.3 is not directed primarily at speech nor does it overreach to prevent contact, speech or otherwise, between quarreling lovers as appellant suggests. Indeed, the statute permits all communications between individuals that are conducted in a time, place and manner that do not intentionally or knowingly cause the receiver of the message reasonably to fear for his or her physical safety.”

Id. at 691 (emphasis added).

The 2001 amendments to the criminal stalking statute introduced, in addition to the subjective intent or actual knowledge standard, an alternative objective “reasonably should know” standard. 2001 Va. Acts 197 (HB2112). The 2016 amendments then create an evidentiary presumption of improper intent based “contact[ing] or follow[ing]” the person after being told not to. The 2022 amendments make explicit that this statute governs conduct by “mail, telephone, or an electronically transmitted communication.” All of these call into question the validity of the Courts of Appeals’ 1997 overbreadth analysis.

In 2001, the General Assembly also created a civil enabling statute, at Code § 8.01-42.3, which provides in relevant part as follows:

“A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3, whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.

1. As used in this section:

“Compensatory damages” includes damages for all of the defendant’s acts prohibited by § 18.2-60.3.

“Victim” means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3, was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the person is a parent or legal guardian.”

See 2001 Va. Acts 444 (HB 1710). This statute predates a 2016 amendment to the criminal stalking statute that added the evidentiary presumption, establishing that contact after being forbidden is a prima facie case of improper intent. 2016 Va. Acts 545 (SB 339, HB 752). The civil statute, however, only makes actionable “conduct that is prohibited under § 18.2-60.3” and not conduct that is a prima facie case of a violation of § 18.2-60.3, and the General Assembly did not incorporate the evidentiary presumption into the language of the civil stalking statute.

Under Virginia law, statutes creating causes of action, in derogation of the common law, are to be strictly construed and must not be enlarged in their operation by construction beyond their express terms. Giordano v. McBar Indus., 284 Va. 259, 267 n.8 (2012).

A few months ago, in June 2023, the Supreme Court of the United States released Counterman v. Colorado, 143 S. Ct. 2106 (2023), which addressed state stalking statutes. Counterman concerned an individual who sent hundreds of social media messages to a local singer and musician, even after she blocked the messages. He was convicted of stalking under a statute that imposed an objective reasonableness, and not a subjective standard. The U.S. Supreme Court reversed the conviction on First Amendment grounds, holding a stalking prohibition requires that “the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Id. at 2111-12.

The Court presupposed that stalking statues regulate “true threats,” which is not protected by the First Amendment. The Court acknowledged that the threatening aspect of the message does not depend on the author’s subjective intent, but “the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability,” so that the statute does not deter the public from constitutionally protected activity. Id. at 2114. The Court noted that the First Amendment imposes subjective mens rea elements in connection with other state regulations of unprotected communications, including civil and criminal defamation, civil and criminal incitement, and obscenity. Id. at 2115-16. The Court then stated:

“The same reasoning counsels in favor of requiring a subjective element in a true-threats case. This Court again must consider the prospect of chilling non-threatening expression, given the ordinary citizen’s predictable tendency to steer wide of the unlawful zone. The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats. Some 50 years ago, Justice Marshall made the point when reviewing a true-threats prosecution arguably involving only political hyperbole. . . .  An objective standard, turning only on how reasonable observers would construe a statement in context, would make people give threats a wide berth. And so use of that standard would discourage the uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.”

Id. at 2116 (cleaned up). After considering the options, and particularly the Court’s defamation precedent, the Court determined that recklessness was the appropriate standard. In other words, the speaker must be “aware that others could regard his statements as threatening violence and [that he] delivers the[] [statements] anyway.” Id. at 2117 (quotation marks omitted).

 “A statute cannot be rewritten [by a court] to bring it within constitutional requirements.” Jaynes v. Commonwealth, 276 Va. 443, 464 (2008). This is particularly the case when it comes to statutes regulating speech. Id. at 453-54 & n.6; Reno v. ACLU, 521 U.S. 844, 884-85, 874 & nn.49-50 (1997); Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397 (1988).