Virginia criminalized speech laws mean to know before you express yourself, says Fairfax criminal lawyer

Virginia criminalized speech laws are several. As a Fairfax criminal lawyer, I know that the appellate courts afford less — if any, in some instances — First Amendment free expression protection to such criminalized speech and expression as as obscenity, child pornography, death threats and threats of other forms of violence, harassment / stalking, disorderly conduct, murder for hire, fraud, and incitement to riot. This week, the Supreme Court placed at least some free expression limits on how roughshod the criminal law can run as to criminal defendants charged with harassment or stalking, concluding that the prosecution “must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.” Counterman v. Colorado,  ___ U.S. ___ (June 27, 2023). Counterman says that the level of criminal intent / mens rea with the foregoing subjective standard is recklessness, to steer a path between reducing (but not eliminating) the resulting chill on protected free speech, while still protecting against unprotected speech. As a decades-long free expression and civil liberties advocate, I find Counterman to be a watered-down disappointment, with the only consolation being that the two dissenting justices who wanted even less protection to such speech did not get their way. With two of the court’s three most liberal justices in the majority in Counterman, the writing is on the wall that such watered-down free expression protection is not going to strengthen further any time soon.

The Virginia criminalized speech law regarding stalking law is unconstitutional until it removes the presumption of criminal intent when the criminal defendant keeps communicating to the alleged victim who has already said to cease such activity

To me, Counterman invalidates the following part of the Virginia criminalized stalking statute: “If the person contacts or follows or attempts to contact or follow the person at whom the conduct is directed after being given actual notice that the person does not want to be contacted or followed, such actions shall be prima facie evidence that the person intended to place that other person, or reasonably should have known that the other person was placed, in reasonable fear of death, criminal sexual assault, or bodily injury to himself or a family or household member.” Virginia Code § 18.2-60.3. To permit such a presumption / prima facie evidence turns the First Amendment on its head, and, for instance, empowers politicians to get gadflies to shut up by simply telling them so, which flies in the face of our getting closer to being a democratic nation. I won a Virginia stalking trial a few months ago without the benefit of Counterman, and now with Counterman having been issued, I will have that case at the ready to help my harassment and stalking defense clients all the more.

Irritating speech does not convert the expression to jailable conduct

The Virginia criminalized speech law regarding protective orders is particularly vexing in its erosion of First Amendment free expression protection, by enabling a judge to issue a protective order for up to two years against a defendant, and then expose him or her to up to a year in jail for each convicted violation of such a protective order. I have won numerous protective order trials on behalf of the respondent / defendant, and look forward to having Counterman at the ready to strengthen my arguments for my protective order defense clients all the more.

Let your Virginia criminal lawyer harness the power of the Bill of Rights to your advantage

As watered down as the appellate courts have made so many of our civil liberties, the Fifth Amendment right to remain silent with the police, and the Fourth Amendment right against unreasonable searches and seizures and searches without probable cause, those protections still have some teeth. I keep those lawful weapons at the ready in pursuing the best possible defense for my Virginia criminal defense clients.  Virginia criminalized speech laws should not go unchallenged, for protecting our free expression rights.

Fairfax criminal lawyer Jonathan Katz harnesses the Bill of Rights and all other relevant aspects of the law in pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. For your free in-person initial confidential consultation with Jon Katz about your court-pending case, call 703-383-1100.