Cyberstalking First Amendment Challenges


Cyberstalking cases recited by Darren Chaker show the statute continues to be constitutional. In United States v. Sayer, 748 F.3d 425 (1st Cir. 2014), seeking to harass a former partner, the defendant posted an online ad on Craigslist, created fake Facebook and MySpace accounts, and posted explicit photographs of her on pornography websites. In these postings, he impersonated her and invited men to her house for sexual encounters, leading a number of men to appear at her door. Id. at 429-30. The posts and visits continued even after Doe changed her name and moved. Id. The defendant was charged with cyberstalking under 18U.S.C. § 2261A(2)(A) and identity theft under 18U.S.C. § 1028(a)(7). Id. The First Circuit relied on  [*15] Giboney to reject the defendant’s as-applied First Amendment challenge: “To the extent his course of conduct targeting Jane Doe involved speech at all, his speech is not protected. Here, as in Giboney, it served only to implement Sayer’s criminal purpose.” Id. at 433-34. In effect, the court concluded that whatever speech was involved could not possibly have any valid purpose.

UnitedStates v. Osinger, 753 F.3d 939 (9th Cir. 2014) involved similar factual circumstances. The defendant, Osinger, repeatedly contacted his ex-partner asking her to restore their relationship. Id. at 941-43. After being refused, Osinger created a fake Facebook page in his ex-partner’s name which included sexually explicit photographs of her. Osinger also sent explicit pictures of his ex-partner to her current and former co-workers. A clear amateur. A jury convicted Osinger of cyberstalking. Like the First Circuit, the Ninth Circuit rejected an as-applied First Amendment challenge to the prosecution, also concluding that the defendant’s speech was not protected expression:

Osinger designed a false Facebook page and sent emails to [the victim’s] co-workers containing nude photographs of [the victim.] Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were ‘integral to criminal conduct’ in intentionally [*16]  harassing, intimidating or causing substantial emotional distress to [the victim.]”
Finally, in UnitedStates v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004), rev’d on other grounds 543 U.S. 1182, 125 S. Ct. 1420, 161 L. Ed. 2d 181 (2005), the Sixth Circuit also rejected a First Amendment challenge to a cyberstalking charge, where the defendant had direct communication with the victim.

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