The Volokh Conspiracy
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From U.S. v. Yung, decided today by the Third Circuit, in an opinion by Judge Stephanos Bibas, joined by Judges Felipe Restrepo and Jane Roth:
Congress enacted the cyberstalking law in 2006 and broadened it in 2013. As amended, it makes a defendant a cyberstalker if he checks three boxes:
- 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. He 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, his 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). Because Yung pleaded guilty to the emotional-distress result element, we focus on that one….
[I]f we can, we must read the statute narrowly enough to avoid constitutional problems. And here, a narrow reading of the statute's intent element is plausible….
By itself, the act element does not prevent overbreadth…. [W]e reject the government's position that the cyberstalking "statute focuses on conduct, not speech." Rather, it reaches a lot of speech: it targets emails, texts, and social media posts ….
The result element does little to confine the law to unprotected speech. The law, for instance, punishes people for acting in a way that "causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress." True, the "[s]ubstantial" emotional distress must be "fairly large," more than mere annoyance.
Even so, the law captures much speech, in part because it does not require that emotional distress be objectively reasonable. Though we hope that Americans can discuss sensitive issues without taking offense, that is not always so. And the law penalizes speech even when a listener's distress is unexpected or idiosyncratic.
That is a problem. The First Amendment protects lots of speech that is substantially emotionally distressing. Protesters may picket a marine's funeral with signs like "Thank God for Dead Soldiers," "God Hates Fags," and "You're Going to Hell." Snyder v. Phelps (2011). And a pornographer may parody a famous minister as having drunken sex with his mother. Hustler Mag. v. Falwell (1988). These statements are deeply offensive, yet still covered by the First Amendment.
So neither the act nor the result element suffices to narrow the law's wide reach….
The intent element, narrowly construed, saves the statute
[If we read] "intent to … harass [or] intimidate" … broadly, the law will reach protected speech. Take the verb "harass." It can mean aggression, even violence: "worry[ing] and imped[ing] by repeated attacks." But "harass" can also mean "to vex, trouble, or annoy continually or chronically." These poles mark a spectrum from repeated annoyance to outright violence.
Like harassment, intimidation has both narrow and broad meanings. To "intimidate" can mean a specific, violent action. It "esp[ecially]" means "to force [someone] to or deter [him] from some action by threats or violence." But "intimidate" can also mean broadly "[t]o render timid, inspire with fear; to overawe, cow."
Harassment and intimidation, narrowly construed, are punishable. "Intimidation in the constitutionally proscribable sense of the word … plac[es] the victim in fear of bodily harm or death." Harassing debt collection and coercive threats are also unprotected. See, e.g., Barr v. Am. Ass'n of Pol. Consultants (2020) (suggesting that the Constitution lets Congress regulate the way people collect debts); Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.).
Yet the broader definitions of "harass" and "intimidate" can describe nonviolent, nonthreatening speech. Filling a city councilman's voicemail box with complaints about his vote on a controversial municipal ordinance may "vex" or "cow" him. Ranting in the comments section of a website that a senator voted to lock refugee kids in cages could well "annoy [her] continually or chronically" or "render [her] timid." Or, to take a couple more mundane examples, "negative restaurant reviews left on Google or Yelp, irate emails sent to service providers (contractors, plumbers, etc.), … or antagonistic comments left on news sites" are often persistently annoying or even scary. Each might satisfy the statute's act and intent elements, read broadly, and (depending on the recipient's reaction) the result element too.
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. On the contrary, "the free speech clause protects a wide variety of speech that listeners may consider deeply offensive."
Thus, broad harassment laws that punish offensive speech "steer into the territory of the First Amendment." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995) (Title VII); see also Dambrot v. Cent. Michigan Univ. (6th Cir. 1995) (university speech policy). And courts have often struck them down. See, e.g., State v. Brobst (N.H. 2004) (holding overbroad a harassment statute covering any speech made "with the intent to annoy or alarm another"); Ex parte Barton (Tex. Ct. App. 2019) (same); Moreno (same). So here too, we must ensure that the cyberstalking statute does not "present a 'realistic danger' [that] the [Government] could compromise" First Amendment protections….
[The court then analyzes why a narrow reading is consistent with the text, even if a broader reading would be, too, and concludes that the narrow reading is called for to avoid First Amendment problems: -EV]
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." It also limits "intent to intimidate" to what it "especially" means, a form of true threats or speech integral to a crime. Those narrow readings ensure that protected speech largely escapes the law's net. Thus, we can avoid the "strong medicine" of invalidating the statute as facially overbroad….
Definitely an improvement over the broad reading (though I should note that the "integral to proscribable criminal conduct" language always complicates matters). For some thoughts on why some such narrowing is constitutionally required, see my One-to-One Speech, One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" and my Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases).