that the defendant knows or should know cause that person to fear for her safety or suffer emotional distress which is then further defined as significant mental suffering that  down to experience to fear for her safety or experiencing if you have mental suffering on them we're talking about injuries to stalking victims that many ways are very similar to the types of consequences of suffering a physical attack missing work disruption of one's daily life are unfair from medical professionals hospitalizations and in most of their bases suicidal thoughts and even death on the research shows that stopping victims suffer these severe mental well i think that's just saying that you know there are going to be certain circumstances you know public figure for example on the question would a defendant kno statute by saying the mere fact that this particular defended may have experienced you know some of these injuries due to being if a more on the one hand by saying that they knew or should have known you are protecting against the defendant who no matter how religious their conduct is defends himself by saying well i didn't know that these outrageous acts are going to be  so the defendant and i said these things in the end but i don't know the specific tone of the react in this way they could say i thought this victim was tougher than that but of course by saying that it that the standard is a reasonable person situated as the victim that would not protect them from criminal liability for their acts that they should have known were going to cause injury facial challenge so so not directly to the parts analysis but this is a piece of this case but if you think it makes it it highlights why the second doesn't violate the first amendment which is namely that that it doesn't have to be remove one or another amendment from the statute i'm gonna mention the aryan that if i may i didn't know that that this victim was going to experience these things i thought that you know she was tougher than that or i didn't know that my facebook friends would convey the horrible messages that i repeatedly probably put online to do that and she's not my my friend or i  assembly in addressing these issues and i think the reason is because this is the only way to protect victims against a very serious very real issue is a sucker is the result traditional injury or significant mental suffering the guy here alone and it does have to what extent it is furthers the protection of this actually from first amendment  that a defendant would know that certainly that would cost the victim to fear for his or her safety so so the question is a significant mental suffering i don't think having one person say on line you know i've heard so and so is having an affair is the kind of thing that causes the injuries are talking about here you know missing work wiring you know   not only that they heard that they were having an affair but you know specific alleged solutions details of this affair and he continued that they maybe recruited other people to post  the level of criminal conduct and that's ok that's not a violation of the first amendment because you have to at this point now of course conduct directed at a person that they should know is going to cause contrary to the general assembly's intent in housing that the amendments to this statute they were explicitly trying to address the the new ways in which the internet and email and to the amendment to the to the legislative intent asking the amendment to put the statute function absent that language probably but i think it would be contrary to the legislature to general this statute and we've talked about the government purpose in passing the statute the statute is written on its face i'm to explicitly only apply when the government when the types of injuries that the government is  significant mental suffering limits a statute to exactly those circumstances where the government's interest is that issue so i don't think that that that one could argue that the statute captures significant otherwise might arise from the absence of that word in the cyber stalking statute to be fully honest i hands down the shah no reason why the general assembly might have chosen to omit you laws have ever made so much of what we do or say felony is this new statute under these new provisions every time we admit that we ought to do good done known better than to have done or said distressing thing we did we are fact not only with this reach something like the intentionally meanspirited seizing by teenagers he reaches communications that would knowingly distress not only the recipient be who they are about such as the example of a disclosure online of a spouse having an affair contrary to mr fisher's believes i'm quite confident that in almost every case a prosecutor will be able to prove that a comment like that in fact cause a reasonable person significant anxiety alarm or status is just it in various ways that the statue really only are condos apparently because apparently because the says that the legislature redefined speech as conduct and then bam conduct it managed to fight its way protect that condo our primary concern here is because it's what mr belford is charged with in every count is the first communicates to or about now communicates to or bouts practically a definition of what the first  attempts and that has consequences when the government was stripped speech when a restricts communications to or about the government the bears the burden of proving the constitutionality of its actions you're the state seems to be saying that because the legislature relabeled speeches and conduct then criminalize the newly defined speech infused conduct it can get around the first amendment entirely of really they make this argument that this can be fit into a first requirement of any intent to threaten any intent to cause fear instead allowing fear by the simply misconstrue communication under your questions standard in this court has rejected similar state origins in the past three such people that was the original telephone harassment statute the legislature tried to get around the speech problem by saying that telephone harassment can occur even if no conversation actually occurs by dialing somebody  through that and saw that when it was trying to ban telephone harassment with intent to annoy what was really a issue there was speech and not just on the right to the other exception that the state has raised in the  means to communicate a serious expression  first that means to be a to be a threat and now one of those elements is that it has to be an expression of the speaker's attack intent to act in the future but most communications that knowingly or negligently distress are not even that for example a couple weeks ago we saw how the commissioner down in texas put on the county's facebook page get out now or die plainly that's a communication that would cause fear of safety and it's recipients that's the entire point the appeal to second the threat now testy is something violent or even unlawful here the di case in the fifth district had an example that where a defendant said something that could have been strewed is a threat to file legal ethics complaint now that would certainly unnerved and render anxious its recipient but it doesn't work out as something directly prosecuted because it's not an unlawful act it also has to be a series expression of intensity of something that's  or even in our ordinary lives there's going be hyperbolic crude statements that sound like literal threats but that in context really off with that really aren't because they're not serious expressions of an intent to do anything they're just blowing off steam and fourth the speaker has to know or at least in order ten that the recipient understand the communication as it's right this is why the joking phrase i'm going to kill you said it over  them like sitch doing a video game would clearly not be a true threat if you can if the other person on reasonably understood as an actual death threat be because the danger here is that we censor ourselves based on others now not only is this a speech case it's the most severe kind of speech restriction the speech restriction that's content it's in here it's content based under a number of axes therefore the state has to prove that's nearly tailored to a compelling state interest of the state doesn't seriously see to contest that's on that basis it's worth really explaining why first a legislation is content based word where it depends effect on listeners reactions to the speech listeners reactions to speech is not a conference neutral basis for regulation we've seen this over and over in the supreme court finding communications that  third parties in order to determine whether the special applies in cases like that you need to look at what the statute actually says what is the subject matter who was the comment about that makes it so that makes the content based in the most literal the definition of the term relying on the subject matter of the communication and given that it's content based on those axes the state must prove that it's nearly tailored to compelling interest it cannot do that because the emotional distress yet the state would not even you know report to claim that that's the kind of thing that would escalate into homicide which seems to be its rationale you're the former russian else that the states has since the arguing is first that somehow knowing or negligently distro communications whether we're talking about the family had the disclosure of the affair or her sure other harsh words said online somehow interest is in protecting people from emotional harms the us supreme court has rejected that rationale over and over that a mere desire to shield the op shield the audience from the emotional harms of speech is not even a legitimate reason let alone one that can see that the that can justify criminalizing certain kinds of speech if that were a legitimate reason we'd see different results in all the of sanity cases that are described in the rivers now the legislature has all sorts of options here the federal stalking statute which doesn't single a communications to or about in the wires intent seems to get most of the cases they want and it's a lot now frankly it looks this case mr belford was charged with communications under each each count of the indictment and to answer your honest question earlier my memory is that the court did find on the one act the trial court did find them the want to one doctrine state the mental state of mere negligence as to how would be interpreted as a as a threat was not was not enough to separate the wrongfully intended from the innocent from the innocent conduct that and this court has a doesn't mean i think to go try to choose to prosecute every act in which one unit hates or does anything that distresses another knowingly or negligently they don't have the manpower for that what however what that means is that the distresses it is enough to make it worthy of conviction and what will inevitably have will never leave her is that the politically unpopular in the powerless will be those that are prosecuted where is those who those of will go free so we have a case here where it's an intern and her supervisor that at a job that happens to be a popular radio host you're honest therefore i ask you to strike or place under surveillance with intent to harass which i think is is quite similar in it's a fact to the course of conduct directed at a specific begun but once you move beyond that the two become even more similar both actually have reasonable persons standards for the likelihood of inflicting on the injuries that are considered by the statute that injury is defined in the illinois statute is significant mental suffering are also very similar to go away the first amendment case we discuss in our brief with the situation where the defendant after repeatedly asking his ex girlfriend get back together with and then victim doesn't cause one to know that they're going to cause a reasonable person to miss work or or to have to see a mental health professional or have suicidal  statute that and again i think that changes the difference there as a medic and a first first amendment analysis perspective but if those differences are on the breaking point but the constitution of the statute  then hopefully it won't be clear about that because the general something clearly has an intent to protect this substantial interest in protecting the victims from these clowns and obviously they didn't you know they set out to do it in the constitutional