State v. Smith

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No. 119,919

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LISA A. SMITH,
Appellant.


SYLLABUS BY THE COURT

1.
Appellate courts generally avoid making unnecessary constitutional decisions.
Thus, when there is a valid alternative ground for relief, an appellate court need not reach
a constitutional challenge.

2.
When the controlling facts are based on written or documentary evidence or
stipulations, the appellate court has as good an opportunity to examine and consider the
evidence as did the court below.

3.
The Fourth Amendment concept that persons may legitimately demand privacy in
the curtilage of their homes from arbitrary interference by the government does not apply
in determining whether a person made a statement publicly for purposes of a defamation
claim.




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4.
In an appeal from a criminal judgment that a person violated a protection from
stalking order, an appellate court may determine the constitutionality of the underlying
order.

5.
To prove defamation, the plaintiff must prove knowingly false and defamatory
words that are communicated to someone else and that injure the reputation of the person
defamed.

6.
Generally, a prior restraint restricts speech in advance based on content and carries
a presumption of unconstitutionality.

7.
The purpose of our stalking statute is to protect innocent citizens from threatening
conduct that subjects them to a reasonable fear of physical harm. The stalking statute
expressly excludes constitutionally protected activity from its definition and does not
reflect any State interest in preventing slander.

8.
Under the circumstances of this case, the protection from stalking order, as applied
solely to speech which does not subject a person to a reasonable fear of physical harm, is
an improper prior restraint of the appellant's constitutional right to freedom of speech.




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Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed September 27, 2019.
Reversed and sentence vacated.

Adam M. Hall, of Thompson Warner, P.A., of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

GARDNER, J.: Lisa A. Smith appeals the district court's decision finding that she
violated a protection from stalking (PFS) order. Smith argues that the PFS order, as
applied, is an unconstitutional prior restraint on her free-speech rights. In the alternative,
Smith argues that insufficient evidence shows that she made a disparaging statement "in
public," as the PFS order prohibited, since she made the statement to her husband while
standing on the doorstep to her home. We find that sufficient evidence shows Smith made
the statement publicly. But we agree that the PFS order, as applied, is an unconstitutional
prior restraint on her free-speech rights. As a result, we reverse her conviction and vacate
her sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Smith lives across the street from Jonathan Perez. The two families apparently
have a history of conflict which includes each making criminal allegations against the
other. In 2016 or 2017, Smith accused Perez of sexual misconduct with Smith's child. In
April 2017, both Smith and Perez received temporary orders of stalking against the other.
After a trial in June 2017, the district court denied Smith a final PFS order against Perez
but granted Perez a final PFS order against Smith. To get such a civil order, Perez had to
prove by a preponderance of the evidence that Smith was stalking him. See K.S.A. 2018
Supp. 60-31a05(a); Elem v. Elem, No. 119,774, 2019 WL 1746753, at *5-6 (Kan. App.
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2019) (unpublished opinion). But our record on appeal does not include the record from
that civil trial.

The PFS order against Smith, in addition to the typical PFS prohibitions on
conduct (following, harassing, telephoning, or contacting a named person), added the
following special prohibition on speech which Smith challenges here:

"Defendant shall not make direct or indirect disparaging statements in public regarding
plaintiff being a child molest[e]r. 'Public' includes social media postings. Any such
postings made directly or indirectly by defendant shall be removed immediately. This
Order authorizes social media entities to remove disparaging postings regarding
Plaintiff."

In November 2017, Smith, while entering her residence, turned toward her
husband who was standing in their driveway and said, "come inside away from the
pedophile." Smith made that statement loudly enough that Perez and his family heard it
from their home across the street. Perez also captured the statement through a video and
audio surveillance system installed outside his residence.

After being criminally charged with violating the PFS order, Smith moved to
dismiss the case. She argued that the PFS order was an unconstitutional, content-based
restriction on her free-speech rights and that criminal prosecution under K.S.A. 2017
Supp. 21-5924 for violating the order was unconstitutional as applied to her. The State
argued that Smith's speech was not protected by the First Amendment to the United
States Constitution, but even if it were, the PFS order passed constitutional muster. The
district court held a hearing on Smith's motion to dismiss then denied it.

The parties then tried the case to the bench on stipulated facts. The parties
stipulated that the PFS order had been issued, that it was in effect at the time of Smith's
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statement, and that it prohibited Smith from making disparaging statements in public
about Perez being a child molester. They also stipulated to these facts:

"On Thursday, November 23rd, 2017, at approximately 5:00 p.m., Jonathan
Perez was standing in the front yard of [his home] with his family. During the time Perez
was in the yard, the Defendant arrived home . . . with her husband. Both [homes] are
located on a residential street. These houses are across the street from one another. While
the Defendant was going inside her residence, she turned toward her husband, who was
standing in their driveway, and said 'come inside away from the pedophile.' This
statement was made loud[ly] enough that Perez and his family heard the above statement
from across the street."

As exhibits, the State admitted the complaint against Smith and the video of Smith
making the statement to her husband.

Smith offered no additional evidence. Instead, she renewed her argument that the
PFS order violated her free-speech rights. She also argued that the State had not met its
burden to show that Smith had made the statement "in public." The district court found
that the PFS order did not violate Smith's constitutional rights and found beyond a
reasonable doubt that Smith had violated the order. It sentenced Smith to 90 days in jail
but granted her 12 months' probation. Smith timely appeals.

I. SUFFICIENT EVIDENCE SHOWS SMITH'S STATEMENT WAS MADE IN PUBLIC

We first address Smith's argument that insufficient evidence supports her
conviction. This is because "[a]ppellate courts generally avoid making unnecessary
constitutional decisions. Thus, where there is a valid alternative ground for relief, an
appellate court need not reach a constitutional challenge." State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, Syl. ¶ 3, 367 P.3d 282 (2016).
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The PFS order prohibited Smith from publicly accusing Perez of being a child
molester. Smith argues that she did not violate this order because she made the statement
while on her own property and only to her husband who was also on their property. The
State counters that, because Smith's statement was made loudly enough to be heard
across the street, it was made in public and it violated the terms of the PFS order.

The standard of appellate review is de novo for cases decided by the district court
based upon documents and stipulated facts. State v. Dull, 298 Kan. 832, 840, 317 P.3d
104 (2014). "Where the controlling facts are based on written or documentary evidence
or stipulations, this court has as good an opportunity to examine and consider the
evidence as did the court below." In re Estate of Lasater, 30 Kan. App. 2d 1021, 1023, 54
P.3d 511 (2002). We apply this standard here.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

Smith contends that anything spoken within the curtilage of her home—the area
immediately surrounding it— should be considered private. In support of this claim,
Smith cites Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214
(1984). Oliver established that curtilage is considered part of the home itself for Fourth
Amendment purposes:

"[A]n individual may not legitimately demand privacy for activities conducted out of
doors in fields, except in the area immediately surrounding the home. See also Air
Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 865[, 94 S. Ct. 2114,
2115, 40 L.Ed.2d 607] (1974). This rule is true to the conception of the right to privacy
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embodied in the Fourth Amendment. The Amendment reflects the recognition of the
Framers that certain enclaves should be free from arbitrary government interference. For
example, the Court since the enactment of the Fourth Amendment has stressed 'the
overriding respect for the sanctity of the home that has been embedded in our traditions
since the origins of the Republic.' [Citations omitted.]" Oliver, 466 U.S. at 178.

But this Fourth Amendment concept—that persons may legitimately demand privacy in
the curtilage of their homes from arbitrary interference by the government—does not
apply here. No Fourth Amendment issue has been raised and none is evident from the
facts, which show no government actor.

Smith made a verbal statement loudly enough that her neighbors across the street
heard it and their video/audio recording captured it. Smith stipulated to that fact. So even
if we were to analyze these facts using a curtilage analysis, Smith's words, although
uttered within the safe harbor of the curtilage of her house, carried beyond that curtilage,
wafted across the street, and invaded the curtilage of Perez' house. Sufficient evidence
shows that Smith made the statement in public.

II. SMITH'S CONSTITUTIONAL QUESTION IS NOT PROCEDURALLY BARRED

Before reaching the merits of Smith's constitutional question, we must address the
State's procedural argument that Smith's arguments are not properly made in this appeal.
It argues that Smith's real challenge is to the underlying PFS order. Thus Smith should
have objected to that order's unconstitutionality at the time the district court issued it—
not when the State seeks to criminally enforce its violation. The State asserts that Smith's
current claim is a collateral attack to an earlier order. The State concedes that it did not
raise this issue below and raises it for the first time on appeal, but it contends that we may
reach the merits of this claim because the district court is right for the wrong reason. See
State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
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We agree that based on Phillips, we may reach the merits of the issue. But we
resolve the issue against the State. The State cites the collateral bar rule, but that rule
prohibits review of the validity of the underlying order in a criminal contempt appeal,
subject to exceptions. See State v. Alston, 256 Kan. 571, 584-86, 887 P.2d 681 (1994).
This is not a criminal contempt appeal. The State also cites Waterview Resolution Corp.
v. Allen, 274 Kan. 1016, 58 P.3d 1284 (2002). But that case merely held that collateral
attacks are generally not favored by the law. See 274 Kan. at 1024. We have no quarrel
with that general proposition but we do not find it controlling here given our criminal
appeal statute.

Smith is appealing a criminal judgment. The right to appeal is statutory. The
applicable criminal appeal statute, K.S.A. 2018 Supp. 22-3602(a), expressly provides that
in an appeal from a criminal judgment, "any decision of the district court or intermediate
order made in the progress of the case may be reviewed." The PFS order is such an order.
And Smith's free speech issue is now ripe because only the speech prohibition in the PFS
order is being enforced against her. So even if Smith could have raised her First
Amendment objections when the district court issued the civil PFS order, we find no bar
to her raising them now. This appeal is not procedurally barred.

III. SMITH'S SPEECH WARRANTS FIRST AMENDMENT PROTECTION

We thus reach Smith's argument that the PFS order, as applied, constituted a
content-based prior restraint on her speech and was thus presumptively invalid.

The First Amendment provides that "Congress shall make no law . . . abridging the
freedom of speech." The First Amendment is applicable to the states through the
Fourteenth Amendment. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 33, 20 P.3d 39
(2001). Similarly, Section 11 of the Kansas Constitution Bill of Rights states each person
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may freely speak, write, or publish his or her sentiment on all subjects, "being responsible
for the abuse of such rights."

It is well-established that content-based speech restrictions are presumptively
invalid. See United States v. Alvarez, 567 U.S. 709, 716-17, 132 S. Ct. 2537, 183 L. Ed.
2d 574 (2012). But certain categories of expression may be restricted without violating
the First Amendment. See United States. v. Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577,
176 L. Ed. 2d 435 (2010). Among these categories which may be restricted are:
advocacy intended, and likely, to incite imminent lawless action; defamation; speech
integral to criminal conduct; "fighting words"; child pornography; fraud; true threats; and
speech presenting some grave and imminent threat the government has the power to
prevent. Alvarez, 567 U.S. at 717; see State v. Huffman, 228 Kan. 186, 190, 612 P.2d 630
(1980).

The State invokes the defamation category, arguing that Smith's speech is not
entitled to First Amendment protection because it was "almost certainly defamatory."
Yet, as we detail below, the State failed to prove at trial that Smith's speech was, in fact,
defamatory.

1. The State fails to show that Smith's slanderous statement is unprotected.

The State fails to show that a one-time verbal statement is not entitled to First
Amendment protection. The State relies on cases generally holding that "defamation"
falls outside First Amendment protection. Yet the cases that so hold involve libel, not
slander as we have here. See R.A.V. v. St. Paul, 505 U.S. 377, 382-84, 112 S. Ct. 2538,
120 L. Ed. 2d 305 (1992) ("Our decisions since the 1960's have narrowed the scope of the
traditional categorical exceptions for defamation.") (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 279-83, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964] [providing
substantial protection for speech about public figures]; Gertz v. Robert Welch, Inc., 418
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U.S. 323, 345-50, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974] [imposing some limits on
liability for defaming a private figure]); see generally Milkovich v. Lorain Journal Co.,
497 U.S. 1, 13-17, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (describing narrowing of the
defamation exception to free speech protection; addressing only libel cases); Huffman,
228 Kan. at 190 (listing libel as among the limited categories of speech not protected by
the First Amendment).

Because libel is based on written statements, proof of what statement the speaker
made is more certain than proof of verbal statements. And written statements are capable
of swift and accurate distribution to the masses, thus their potential for damage to one's
reputation is greater than damage by verbal statements. In those respects, written
statements appear to be different in kind than the one-time verbal statement Smith made
to her spouse which was heard by no one but her spouse and her neighbors. The State
offers no case in which a verbal statement was excluded from First Amendment
protection as defamatory. The State relies on cases generally holding that "defamation" is
outside First Amendment protection. Yet the cases that so hold involve libel, not slander
as we have here. The stipulated facts and exhibits here are unlike those in cases which
uphold restrictions on defamatory statements.

2. The State fails to show that Smith's statement was false.

But even if we assume that a slanderous statement could be defamatory speech
excluded from First Amendment protection, the State fails to meet its burden to show that
Smith's statement which labeled Perez a pedophile was, in fact, defamatory. Her motion
to dismiss accused Perez of having committed sexual misconduct against her child. Yet
no evidence shows whether that accusation is true or false. The State argued that Smith's
allegation of Perez' abuse of her child had been investigated but not charged. The State
now adds that Perez is not listed as an offender on the Kansas Adult Supervised
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Population Electronic Repository or the Kansas Bureau of Investigation offender
registration.

But neither party submitted this or any other evidence at trial to show the truth or
falsity of Smith's statement. In short, we have arguments of counsel but no evidence to
prove the falsity of Smith's statement, as is necessary to prove defamation. Statements of
counsel are not evidence. See State v. Brown, 181 Kan. 375, 394, 312 P.2d 832 (1959).

3. The State fails to show that Smith's statement was knowingly false.

Even if we could rely on the State's arguments, the State does not meet its burden
to show defamation. Falsity alone may not suffice to bring the speech outside the First
Amendment. Based on the State's arguments, Smith may have sincerely believed that her
statement about Perez was true, given her report to police that Perez had abused her child.
"Even when considering some instances of defamation and fraud, moreover, the Court
has been careful to instruct that falsity alone may not suffice to bring the speech outside
the First Amendment. The statement must be a knowing or reckless falsehood." Alvarez,
567 U.S. at 719 (finding false statements generally are not a new category of unprotected
speech exempt from the normal prohibition on content-based restriction). In short, the
State has not proved the knowing falsity of Smith's statement as is necessary to take her
speech outside the protection of the First Amendment.

4. The State fails to show that Smith's statement damaged Perez' reputation.

Even if we assume that Smith's statement was knowingly false and that slander is
as equally unprotected as libel, the State cannot establish defamation without proof of
harm to reputation. "[D]amage to one's reputation is the essence and gravamen of an
action for defamation." Gobin v. Globe Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239
(1982).
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"'The elements of defamation include false and defamatory words, communicated
to a third person, which result in harm to the reputation of the person defamed.' Hall v.
Kansas Farm Bureau, 274 Kan. 263, 276, 50 P.3d 495 (2002). '[D]amage to one's
reputation is the essence and gravamen of an action for defamation.' Gobin v. Globe
Publishing Co., 232 Kan. 1, 6, 649 P.2d 1239 (1982). 'Proof of such damages typically
entails showing that persons were deterred from associating with the plaintiff, that the
plaintiff's reputation had been lowered in the community, or that the plaintiff's profession
suffered.' Ali v. Douglas Cable Communications, 929 F. Supp. 1362, 1385 (D. Kan.
1996). 'Damage to reputation can be inferred from the evidence so long as the inference is
reasonable.' Sunlight Saunas, Inc. v. Sundance Sauna, Inc., 427 F. Supp. 2d 1032, 1072
(D. Kan. 2006) (citing Moran v. State, 267 Kan. 583, 590, 985 P.2d 127 [1999]).
Additionally, '[a] victim's own observations may be suitable as proof of harm to his
reputation for defamation cases in Kansas . . . but they must raise a reasonable inference
that the damage was caused by the plaintiff's statements. [Citation omitted.]' Debord v.
Mercy Health System of Kansas, Inc., 860 F. Supp. 2d 1263, 1283 (D. Kan. 2012).
However, '[b]road and factually unsupported allegations . . . do not support a claim for
damages for alleged defamation.' Davis v. Hildyard, 34 Kan. App. 2d 22, 30, 113 P.3d
827 (2005)." Rockhill Pain Specialists v. Hancock, 55 Kan. App. 2d 161, 185, 412 P.3d
1008 (2017), rev. denied 308 Kan. 1595 (2018).

The stipulated facts and exhibits raise no reasonable inference that Smith caused
any harm to Perez' reputation. They show only that Perez, his family, and Smith's
husband heard Smith's statement. Because Smith made the statement only once and no
others apparently heard it, Smith caused no damage to Perez' reputation in the community
by saying it. No facts thus make a prima facie showing that Smith's statement was
defamatory so as to potentially exclude it from First Amendment protection. As a result,
we find that Smith's statement warrants First Amendment protection.





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IV. THE PFS ORDER IS A CONTENT-BASED RESTRICTION

The State contends that it is unclear whether the PFS order is a content-based
restriction and that historically, this type of restriction was one which "exist[ed] to
trample a viewpoint, perspective, or opinion—and, as an extension, foreclose public
debate on the issue."

We find it clear that the PFS order is a content-based prior restraint on speech. It is
a court order forbidding a specific speaker from specific expression. It enjoins Smith
from "mak[ing] direct or indirect disparaging statements in public regarding plaintiff
being a child molest[e]r." It is thus a kind of judicial injunction and a form of prior
restraint. See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 42 (10th Cir. 2013).

As a general rule, the government lacks power "'to restrict expression because of
its message, its ideas, its subject matter, or its content.' As a result, the Constitution
'demands that content-based restrictions on speech be presumed invalid . . . and that the
Government bear the burden of showing their constitutionality.' [Citations omitted.]"
Alvarez, 567 U.S. at 716-17; see Smith v. Martens, 279 Kan. 242, 252-53, 106 P.3d 28
(2005). As our Supreme Court has recognized, this reflects the legal theory that our free
society prefers to punish the few who abuse rights of speech after they break the law than
to throttle them beforehand.

"Statutes which authorize restraining orders, temporary injunctions and
permanent injunctions are a legislatively created system that permits suppression of
speech in advance of actual expression and may be deemed a prior restraint. Prior
restraints are not unconstitutional per se. Any system of prior restraint, however, comes
to a court bearing a heavy presumption against its constitutional validity. The
presumption against prior restraint is heavier—and the degree of protection is broader—
than that against limits on expression imposed by criminal penalties. Behind the
distinction is a theory deeply etched in our law: a free society prefers to punish the few
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who abuse rights of speech after they break the law than to throttle them and all others
beforehand. It is always difficult to know in advance what an individual will say, and the
line between legitimate and illegitimate speech is often so finely drawn that the risks of
free-wheeling censorship are formidable. See generally Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975)." U.S.D. No. 503 v.
McKinney, 236 Kan. 224, 233-34, 689 P.2d 860 (1984).

The PFS order restricts Smith's speech based on its content in advance of its actual
expression, so it is presumptively unconstitutional.

V. THE STATE FAILS TO SHOW THAT THE PFS ORDER SERVES A COMPELLING
INTEREST

Restrictions on free speech are valid only where narrowly tailored to serve
compelling public interests and where no less restrictive alternatives are available. Reed
v. Town of Gilbert, 576 U.S. __, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015);
McKinney, 236 Kan. at 227-28, 236 (finding injunction was an improper prior restraint of
the defendants' constitutional right to freedom of speech).

The state's interest here is reflected in the protection from stalking statute and in
the underlying stalking statute, K.S.A. 2018 Supp. 21-5427. The protection from stalking
statute defines stalking as: "an intentional harassment of another person that places the
other person in reasonable fear for that person's safety." K.S.A. 2018 Supp. 60-31a02(d).
Harassment is defined as "a knowing and intentional course of conduct directed at a
specific person that seriously alarms, annoys, torments or terrorizes the person, and that
serves no legitimate purpose." K.S.A. 2018 Supp. 60-31a02(d)(1). "Course of conduct" is
defined as "conduct consisting of two or more separate acts over a period of time,
however short, evidencing a continuity of purpose which would cause a reasonable
person to suffer substantial emotional distress. Constitutionally protected activity is not
included within the meaning of 'course of conduct.'" K.S.A. 2018 Supp. 60-31a02(d)(2).
15

The purpose of the protection from stalking statute, and the underlying stalking
statute, is to protect innocent citizens from threatening conduct that subjects them to a
reasonable fear of physical harm.

"'The statute's purpose is legitimate: to protect innocent citizens from intentional or
knowingly threatening conduct that subjects them to a reasonable fear of physical harm.
Furthermore, the statute is tailored so that it does not substantially infringe upon speech
protected by the First Amendment. It regulates the manner in which individuals
interrelate with one another and prohibits individuals from communicating with others in
a way that is intended or known to cause fear of physical harm. . . . [T]he statute permits
all communications between individuals that are conducted in a time, place and manner
that do not intentionally or knowingly cause the receiver of the message reasonably to
fear for his or her physical safety. The statute's legitimate sweep does not portend any
substantial burden on constitutionally protected conduct, and we find no realistic danger
that the statute will compromise the First Amendment rights of parties not before the
Court.'" State v. Whitesell, 270 Kan. 259, 272-73, 13 P.3d 887 (2000).

See Smith, 279 Kan. at 254-56 (finding the predecessor to K.S.A. 2018 Supp. 60-31a02 is
not unconstitutionally overbroad).

The stipulated facts fail to establish that Perez or anyone else in his family had a
reasonable fear of physical harm because of Smith's statement, as these stalking statutes
require. See C.M. v. McKee, 54 Kan. App. 2d 318, 321-22, 398 P.3d 228 (2017);
Wentland v. Uhlarik, 37 Kan. App. 2d 734, 741, 159 P.3d 1035 (2007). Nor does Smith's
statement on its face pose any threat to a reasonable person's safety.

The State fails to show that it has a compelling state interest in protecting citizens
from slanderous statements, generally. Instead, the legitimate governmental purpose of
these statutes is to prevent physical violence:

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"'[The stalking statute] serves significant and substantial state interests by providing law
enforcement officials with a means of intervention in potentially dangerous situations
before actual violence occurs, and it enables citizens to protect themselves from recurring
intimidation, fear-provoking conduct and physical violence.'" Whitesell, 270 Kan. at 272
(quoting State v. Ruesch, 214 Wis. 2d 548, 559, 571 N.W.2d 898 [1997]).

These stalking statutes do not reflect any State interest in preventing defamatory
speech. When a person is slandered, the legal recourse is to file a civil defamation action
against the speaker and prove (1) false and defamatory words (2) that are communicated
to someone else and (3) that injure the reputation of the person defamed. Byers v. Snyder,
44 Kan. App. 2d 380, 396, 237 P.3d 1258 (2010). The appropriate recourse is not to seek
a PFS order prohibiting speech that poses no threat of physical harm, then to criminally
enforce only the speech prohibition of a PFS order, as the State does here.

The protection from stalking statute expressly excludes "constitutionally protected
activity" from the definition of course of conduct. See K.S.A. 2018 Supp. 60-31a02(d).
That exclusion is paramount to its constitutionality. See Whitesell, 270 Kan. at 272
(finding to predecessor to K.S.A. 2018 Supp. 60-31a02 is not unconstitutionally
overbroad on its face, as "the type of speech and conduct which it prohibits is not the
kind protected by the First Amendment"); see also Smith, 279 Kan. at 254-56 (same). But
the type of speech this PFS order prohibits is protected by the First Amendment.

The State has shown no compelling interest in prohibiting, via the protection from
stalking statute, non-threatening speech that does not subject the hearer to a reasonable
fear of physical harm. Nor has the State shown that this PFS order's prohibition on speech
that poses no threat of physical harm is narrowly tailored to serve any compelling state
interest. We thus find the PFS order, as applied, is an improper prior restraint of Smith's
constitutional right to freedom of speech. Accordingly, we reverse the conviction and
vacate Smith's sentence.