Law Court invites amicus briefs on constitutionality of Maine's stalking statute as applied in light of a recent U.S. Supreme Court decision

Date: 9/11/2023

The Maine Supreme Judicial Court, sitting as the Law Court, invites briefs of amici curiae in the matter of State of Maine v. Jacob R. Labbe Sr., Law Court docket number And-22-317. Labbe was convicted of domestic violence stalking (Class C), 17-A M.R.S. § 210-C(1)(B)(3), and two counts of violating a protection from abuse order (Class D), 19-A M.R.S. § 4011(1). Labbe appeals, arguing (among other things) that Maine's stalking statute, 17-A M.R.S. § 210-A, which forms the basis for the enhanced charge in 17-A M.R.S. § 210-C, is void for vagueness because a reasonable person would not have understood, and he did not understand, that Labbe's texts and calls to the alleged victim would cause a reasonable person to suffer serious inconvenience or emotional distress. The Court held oral argument on May 9, 2023.

On June 27, 2023, the United States Supreme Court decided Counterman v. Colorado, 143 S. Ct. 2016 (2023). In Counterman, the Court vacated a conviction under Colorado's stalking statute (which, like Maines, employs an objective, reasonable person standard with respect to the effect of an actors conduct on a victim) and held that the First Amendment requires a subjective mens rea--at a minimum, recklessness--with respect to the effect that the conduct there, Facebook Messages, had upon the victim.

The Court invites amicus briefs on the following issues:

  1. What effect, if any, does the U.S. Supreme Court's holding in Counterman have on Labbe's case and especially on the State's burden of proof, if any, with respect to the defendant's subjective awareness that his conduct could cause one of the effects enumerated in 17-A M.R.S. § 210-A?

  2. In light of principles of issue preservation and retroactivity as set forth in Griffith v. Kentucky, 479 U.S. 314 (1987), and similar cases, can and should the Law Court address in this appeal the issues raised by Counterman?

The parties' briefs, the appendix, and the audio recording of the oral argument of May 9, 2023, are available at the links below.

An amicus brief may be filed by or on behalf of any individual, entity, or group of individuals and/or entities without separate leave of the Court. Any amicus brief must comply with M.R. App. P. 7A and must be filed on or before October 10, 2023, at the address listed below. In addition to filing and serving the required number of copies, any amicus filing a brief must send a copy of the brief electronically, as a single "native" or text-based .pdf file, to the Clerk of the Law Court at

Dated: September 11, 2023

Matthew Pollack
Clerk of the Law Court
205 Newbury Street Room 139
Portland, Maine 04101
(207) 822-4146


Recording of oral argument of May 9, 2023

Supporting documents

Appellant's brief

Appellee's brief


pdf version of this notice