November 28, 2022

Volume XII, Number 332

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Third Circuit Affirms Law Student’s Cyberstalking Plea, Holding Federal Criminal Cyberstalking Statute Does Not Violate Constitution

This week the Third Circuit Court of Appeals upheld a federal criminal law passed in 2013 regarding cyberstalking, holding that it passes constitutional muster.  U.S. v. Yung, Case No. 19-1640 (3d Cir.).  The case arose in the context of a criminal matter involving a student who was rejected from Georgetown University Law Center after interviewing with an alumni representative.  The decision issued by a three-judge panel is precedential and will impact other federal cyber litigations.  Read on to learn more.

The student applied for admission to Georgetown Law, but his application was rejected after he interviewed with an alumni representative and it went poorly.  Although the student was admitted to other law schools, he subsequently executed a cyber harassment campaign directed at his Georgetown interviewer.  This included, among other things, “creat[ing] fake obituaries for the interviewer’s wife and son; social-media profiles littered with Ku Klux Klan content in the interviewer’s name; and blog posts as the interviewer,” bragging about purported sexual crimes the interviewer had committed against women and children.

Needless to say, the FBI became involved and the student was subsequently charged with cyberstalking under 18 U.S.C. Sections 2261A(2)(B) and 2261(b).  He ultimately pleaded guilty to the charges after initially challenging the law under which he was charged as overbroad.  After he was sentenced to four years in prison, the student filed an appeal, which in part concerned his previously asserted overbreadth challenge.

By way of background, Congress enacted a cyberstalking law in 2006 and substantially expanded its scope in 2013.  Following the 2013 amendments, and as observed by the Third Circuit, “[n]ow the law punishes not only those who intend to harass, but also those who intend to intimidate.”  It provides that a defendant is a cyber-stalker if three criteria are met, as summarized by the Court:

  • An act: The defendant must “use[] the mail, any interactive computer service or electronic communication service or … system …, or any other facility of interstate or foreign commerce” at least twice.  18 U.S.C. § 2261A(2); see also 2266(2).

  • An intent. The defendant must have acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.”   2261A(2).

  • A result. Finally, the defendant’s actions must cause some emotional response. They must either put the target “in reasonable fear of … death … or serious bodily injury,” or “cause[], attempt[] to cause, or … be reasonably expected to cause substantial emotional distress.”   2261A(2)(A), (B).

In this instance, the law student had pled guilty to the emotional distress element of the statute—which the Third Circuit focused upon for purposes of the appeal.

The Court ultimately held that narrowly construing the intent component of the law saved the statute from the student’s overbreadth challenge.  This was because, the Court explained:

The broader definitions of “harass” and “intimidate” can describe nonviolent, nonthreatening speech . . . But criminalizing that speech would collide with the First Amendment. The First Amendment protects at least some speech that persistently annoys someone and makes him fearful or timid.  As then-Judge Alito observed: “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”  Though “non-expressive, physically harassing conduct is entirely outside [its] ambit,” “deeply offensive” speech is not.

Based on this reasoning, the Court acknowledged that “the free speech clause protects a wide variety of speech that listeners may consider deeply offensive.”  As such, broad harassment laws that punish offensive speech “steer[] into the territory of the First Amendment.”

Relying on the doctrine of constitutional avoidance, the Third Circuit adopted a narrow reading of the cyberstalking statute as follows:

To “intimidate,” we hold, a defendant must put the victim in fear of death or bodily injury.  And to “harass,” he must distress the victim by threatening, intimidating, or the like.  That reading limits intent to harass to “criminal harassment, which is unprotected because it constitutes true threats or speech that is integral to proscribable criminal conduct.”

This confined interpretation of the federal cyberstalking statute is a mixed bag for victims of online harassment and cyberbullying.  On one hand, law enforcement retains an important lever in prosecuting and deterring conduct that in many instances is directed against racial minorities or those holding certain political or religious beliefs.  On the other, the Third Circuit’s ruling excludes conduct from the scope of the federal statute that may be personally distressing to those targeted in online cyberbullying incidents.  Suffice to say, given the current environment, this decision will likely impact other federal criminal cases going forward.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 167
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About this Author

Kristin L. Bryan Litigation Attorney Squire Patton Boggs Cleveland, OH & New York, NY
Senior Associate

Kristin Bryan is a litigator experienced in the efficient resolution of contract, commercial and complex business disputes, including multidistrict litigation and putative class actions, in courts nationwide.

She has successfully represented Fortune 15 clients in high-stakes cases involving a wide range of subject matters.

As a natural extension of her experience litigating data privacy disputes, Kristin is also experienced in providing business-oriented privacy advice to a wide range of clients, with a particular focus on companies handling customers’ personal data. In this...

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