Recent developments in First Amendment jurisprudence have raised significant questions about the constitutionality of certain state stalking statutes, including Nevada’s. In particular, the U.S. Supreme Court’s 2023 decision in Counterman v. Colorado has reshaped the legal landscape for prosecutions based on speech.
The Impact of Counterman v. Colorado
In Counterman v. Colorado, the Supreme Court clarified the constitutional limits on criminalizing threatening speech. The Court held that, to punish speech as a “true threat,” the First Amendment requires proof of a subjective mental state of at least recklessness. In other words, it is not enough that a reasonable person would perceive the communication as threatening; the prosecution must also show that the speaker consciously disregarded a substantial risk that their speech would be interpreted as a threat.
This ruling established a constitutional floor for threat-based prosecutions and rejected approaches that rely solely on the objective reaction of the listener combined with generalized intent.
Overview of Nevada’s Stalking Statute
Nevada Revised Statutes (NRS) 200.575[1] criminalizes stalking when a person “willfully or maliciously” engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, or harassed, and that actually causes the victim to experience such feelings.
While the statute includes language excluding constitutionally protected speech, it does not expressly require that the defendant be subjectively aware—or recklessly disregard—the risk that their communications would be perceived as threatening. Instead, the statute focuses on:
- The defendant’s intent to engage in a course of conduct, and
- The objective and subjective impact on the recipient.
The Mens Rea Problem
A key issue is the statute’s lack of a subjective mens rea tied to the threatening nature of the speech itself. The terms “willfully or maliciously” address the intent to engage in repeated conduct, not whether the speaker understood—or consciously disregarded—the possibility that their communications would be viewed as threatening.
Under Counterman, this distinction is critical. The Supreme Court made clear that criminal liability for speech cannot rest solely on how words are received. Instead, courts must examine what the speaker knew or should have known about how their speech would be interpreted.
Notably, Nevada’s aggravated stalking provision includes a specific intent requirement related to placing a victim in fear of serious harm. Courts have upheld that subsection post-Counterman. The misdemeanor stalking provision, however, lacks a comparable mental state requirement, making it more vulnerable to constitutional challenge.
Overbreadth and Chilling Effects on Speech
Another significant concern is overbreadth. By criminalizing conduct that causes feelings of fear, intimidation, or harassment—without limiting liability to “true threats”—the statute risks sweeping in a substantial amount of protected expression.
This could include:
- Repeated but non-threatening attempts to communicate,
- Expressions of anger or frustration,
- Persistent messages seeking reconciliation,
- Social media posts or emails that are unwelcome but not violent.
Because the statute relies heavily on the listener’s reaction and an objective “reasonable person” standard, it may criminalize speech that does not involve a serious expression of intent to commit unlawful violence—the defining characteristic of a “true threat” under Supreme Court precedent.
Why Constitutional Carve-Outs May Not Be Enough
Although NRS 200.575 states that it does not apply to constitutionally protected speech, courts have recognized that such disclaimers do not necessarily cure overbreadth. Members of the public—and even law enforcement—may struggle to determine where protected speech ends and criminal liability begins, especially in emotionally charged or ambiguous contexts.
As a result, the chilling effect on speech may persist despite statutory language purporting to exclude First Amendment activity.
In the wake of Counterman, statutes like Nevada’s stalking law may face increased constitutional challenges, particularly where they:
- Criminalize speech without a subjective recklessness requirement
- Rely primarily on the listener’s reaction
- Extend beyond true threats into protected expressive conduct
Whether through legislative amendment or judicial interpretation, aligning stalking statutes with modern First Amendment standards will likely remain an important issue for courts, lawmakers, and practitioners moving forward.
