Happy Valentine’s Day! We certainly hope that all of our readers are enjoying the holiday, whether you are celebrating with loved ones, ignoring it altogether and having a normal Friday night, having an anti-Valentine’s event, or just curling up with a movie, a blanket, and that special bowl of ice cream.
But what happens when you have that person who just won’t leave you alone? The one who calls and calls 10 times a day, or, even worse, leaves threatening messages, texts or emails? That can make your Valentine’s Day unpleasant or even scary, and if you live in Illinois, it is illegal.
Under Illinois law, Harassment by Telephone and Harassment Through Electronic Communications are both crimes. ( For the exact wording of the law, take a look at 720 ILCS 135/1-1 and 720 ILCS 135/1-2.) This article will explain what constitutes such harassment.
Types of Harassment
Illinois law defines “Harassment by Telephone” as using the telephone to make obscene phone calls with the intent to offend; make a call with the intent to abuse, threaten or harass any person at the called number; make the telephone of another repeatedly ring with the intent to harass any person at the called number; make repeated telephone calls solely to harass any person at the called number; or make a call, or induce someone to make the call for you, in order to harass someone under 13, even if that person consents to the harassment. You can also be convicted of Harassment by Telephone if you allow someone else to use your phone in order to commit one of the above described acts.
“Harassment Through Electronic Communications” is defined a little differently. This statute prevents using electronic communications to make obscene comments or suggestions with the intent to offend; interrupt the telephone or electronic communications service or another person with the intent to harass; transmit any file that prevents a person from using their telephone service or electronic communications device; harass anyone under the age of 13, even if that person consents to the harassment; or threaten injury to the person to whom the communication is directed or to one of that persons family or household members. You can also be convicted of Harassment Through Electronic Communications if you allow someone to use your electronic communications device to commit one of the above described acts.
What is Harassment?
This leaves the question, “What is harassment?” After all, doesn’t the First Amendment give us the right to free speech? Where is the line between protected speech and harassment that can be prosecuted as a crime? This is a question that the courts have encountered many times and tried to answer. Illinois courts have generally defined harassment as “intentional acts which can cause someone to be worried, anxious, or uncomfortable”. However, in order to comply with the First Amendment, we have to be careful how we interpret these words. The courts have said that the First Amendment requires a level of emotional disturbance “significantly more serious than the mildest states those words suggest”. More concretely, they have held that while it is not necessarily restricted only to threats, there must be an intent to produce “emotional distress akin to that of a threat.”
If you are still not sure exactly what that means, you are not alone. Many lawyers and judges aren’t sure either, and people are still sometimes charged based on speech that should be constitutionally protected. Certainly, any threats to person or property would fall under this statute, and the courts have held that we can’t infer intent to harass based on a few vulgarities alone, or based on a call made for the purpose of settling or expressing a dispute or disagreement. However, the cases in the gray area in between tend to be decided on a case by case basis, and unless you really want to be the subject of a First Amendment test case, getting arrested and charged with a crime, even if the appeals court eventually takes your side, is a huge inconvenience.
So what should you do if you aren’t quite sure where the line is between protected speech and harassment? My advice: if you are feeling the love, today is a great day to call that special someone and tell them, but please, one call only, and keep it polite! And if you are feeling the hate, just don’t pick up the phone/keyboard at all.