USA v. Moses Shepard: Cyberstalking, 18 U.S.C. § 2261A and the First Amendment

The case of US v. Shepard, No. CR 10-1032-TUC-CKJ (D. Ariz. Jan. 13, 2012) made significant distinctions from its predecessor, the more famous US v. Cassidy, on the topic of criminal cyberstalking. The criminal defendant in this case was charged with cyber harassment under federal law 18 U.S.C. § 2261A. He argued to the court that the criminal statute was unconstitutionally vague and offended his free speech rights under the First Amendment to the U.S. Constitution. 

With respect to cberstalking, Shepard was charged with the following:

In Count One, Shepard was charged as follows:

From on or about August 6, 2009, though April 13, 2010, at or near Tucson, in the District of Arizona , MOSES ANTONIO SHEPARD, with the intent to harass, [] and cause substantial emotion[al] distress to Linda Mari Arnaud, a person in another State, did use the mail, any interactive computer service, and any facility of interstate or foreign commerce to engage in a course of conduct that caused substantial emotional distress to Linda Mari Arnaud, to wit, MOSES ANTONIO SHEPARD repeatedly contacted Linda Mari Arnaud by means of electronic mail; in violation of Title 18, United States Code, Sections 2261A(2)(A) and 2261(b)(5) and (b)(6).

Indictment, Doc. 22, p. 1. As the jury was instructed, the elements of stalking as alleged in Count One requires proof beyond a reasonable doubt of the following elements:

First, that at the time of the acts charged in the indictment, Linda Mari Arnaud and Defendant were in different states;

Second, that the Defendant used the mail, any interactive computer service, or any facility of interstate or foreign commerce, as charged in the indictment;

Third, that the Defendant engaged in a course of conduct with the intent to harass or cause substantial emotional distress to Linda Mari Arnaud; and

Fourth, that as a result of that course of conduct, Linda Mari Arnaud experienced substantial emotional distress.

Jury Instructions, Doc. 715, p. 14.

Shepard tried to argue there was some objective standard for "substantial emotional distress" and that the criminal cyber statute inhibited his right to free speech in an uncsontitutional way. 

On this issue of criminal acts via the Internet, the district court judge stated:

To violate 18 U.S.C. § 2261A, a defendant must act with the intent to "kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress" to another person, and must actually cause substantial emotional distress to another person. There is no requirement that a defendant must be aware of the exact point where his conduct causes substantial emotional distress.

So, the subjective mental state of the victim remains critical to determining cyber-stalking. The "free speech" argument failed as well.

 Although Shepard argues that a person's First Amendment rights may be infringed because that person may refrain from expressing an idea or innocuous thought because of the alleged vagueness, it is a defendant's intent to kill, injure, or harass, etc. that precludes 18 U.S.C. § 2261A from infringing on First Amendment rights when a person expresses him or herself without the intent proscribed by the statute. The Court finds 18 U.S.C. § 2261A is not unconstitutionally vague on its face. United States v. Shrader, 1:09-0270, 2010 WL 2179572 (S.D.W.Va. 2010).

The judge then went into further discussion of the U.S. Constitution as applied in Shepard's case:

Shepard also asserts that, as applied to him, 18 U.S.C. § 2261A is unconstitutional. He points out that the Supreme Court has held that the First Amendment:

do[es] not permit [the government] to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Therefore, Shepard asserts that, for the speech at issue to fall outside the purview of the First Amendment, this Court must determine whether the speech (1) invited imminent lawlessness and (2) that the imminent lawlessness was likely to occur. However, Shepard has not provided any authority that Brandenburg is the only basis to conclude speech is not protected by the First Amendment. Rather, freedom of speech "is not an unlimited, unqualified right . . . the societal value of speech must, on occasion, be subordinated to other values and concerns." Dennis v. United States, 341 U.S. 494, 505 (1951); Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) (benefit of speech which is of slight social value may be outweighed by social interest in order and morality). The freedom of speech "referred to by the First Amendment does not include a freedom to disregard these traditional limitations." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992); see also Watts v. United States, 394 U.S. 705 (1969) ("true threats" are not protected by the First Amendment); Giboney v. Empire Storage & Ice Co.,336 U.S. 490 (1949) (speech integral to criminal conduct is not protected by the First Amendment).

The Supreme Court and other courts have consistently held that constraints of free speech exist in certain well defined contexts and situations perhaps most fully expressed in the Chaplinsky decision. The judge then moved on to an intriguing case where First Amendment consideration did put a halt to a criminal prosecution in the contemporary Internet context (a la 2011), United States v. Cassidy. As the Electronic Frontier Foundation summarized Cassidy:

A federal district court judge in Maryland has blocked the government's use of a federal anti-stalking law to prosecute a man for posting insults and criticism of a public figure to Twitter, ruling that "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste."

 The issue in Cassidy, however, was cyber harassment of someone who was arguably a public person, who was a Tibetan Buddhist religious leader. In Shepard, though, the target did not qualify for "public person" status. The judge differentiated Cassidy:

In United States v. Cassidy, ___ F.Supp.2d ___, RWT 11-091, 2011 WL 6260872, (D.Md. 2011), the court distinguished those circumstances where harassing conduct was targeted towards a particular person and received outside a public forum from a circumstances in which harassing conduct is posted on, if effect, a public bulletin board. That court recognized that the government has a strong and legitimate interest in preventing the harassment of individuals. See e.g, Thone v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988). Moreover, unlike the conduct discussed in Cassidy, the alleged harassing conduct in this case was not directed to a public figure and was not based on critiquing political or religious leaders.

The Court finds the government has a strong and legitimate interest in preventing the harassment of individuals and that the governmental interest is unrelated to the suppression of free expression. Furthermore, the Court finds that the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Indeed, any incidental restriction on Shepard's First Amendment freedoms does not violate the First Amendment because the speech is integral to the alleged criminal conduct. United States v. Stevens, 130 S.Ct. 1577, 1584 (2010) (First Amendment does not protect "speech integral to criminal conduct").

Thus Cassidy may not have been the blow to the federal criminal cyberstalking statute that some commentators thought. Cyberstalking remains a crime, and the First Amendment will not keep all such criminals from being convicted for such online conduct.