Judge Suter continued: “Vague and overly broad laws criminalizing speech have the potential to chill permissible speech, causing speakers to silence themselves rather than utter words that may be subject to penal sanctions.” Reno v. ACLU, 521 U.S. 844, 871-72 (1997). “The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement-depends in part on the nature of the enactment.” Hoffman Estates, 455 U.S. at 498. An offense must be defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). A statute may be unconstitutionally vague as applied if it ‘does not with sufficient clarity prohibit the conduct against which it is sought to be enforced. To be vague ‘as applied,’ the law must not clearly prohibit the conduct on which the particular charges were based.
Using these standards, defendant’s conduct unquestionably triggered application of the statutory provisions. His conduct was directed at J.R. because she would be alerted to what he was posting though Google alerts. He therefore was communicating to, and about, J.R. This also violated the ITRO. Then, the nature and content of the videos were such as to cause a reasonable person to fear for their safety or cause emotional distress. The MonkeyCom videos suggested killing and mutilating her pet; another was sexually explicit. She was referred to as a criminal and mentally unstable. Defendant referred to himself as a stalker and indicated he was angry based on his perception of events. Music suggested he would “get her.” All of this was done with knowledge and purposely directed at J.R. Thus, we reject defendant’s argument that the statute is unconstitutionally vague as applied to him; it applied directly to proscribe his conduct. This obviates our need to address any claim of facial unconstitutionality for vagueness.
Defendant’s reference to himself as a stalker is something that should have been excluded from evidence pre-trial under NJRE 403. Its probative value is slight since it is very unlikely that the statement was made with actual knowledge of the legal elements of stalking. It’s potential to unduly prejudice a jury is very high as it would likely be interpreted as a definitive admission of guilt to the offense charged.
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