Stalking Conviction Stands in Ninth Circuit Case

Many forms of expression, even if distasteful, are enshrined in First Amendment protections. The Ninth Circuit Court of Appeals in United States v. Osinger, No. 11-50338 (June 4, 2014), recently held, however, that there is a “criminal exception” to the First Amendment when such speech is integral to criminal conduct. Therein, the panel affirmed a conviction and sentence for stalking in violation of 18 U.S.C. § 2261A.

The Facts of the Case:

The defendant and victim were romantically involved until the girlfriend (the victim) learned that her lover was married and subsequently moved out and ended the relationship. Despite her repeated efforts to cease contact, the defendant continued to call and text her, appeared at her workplace, tracked her across the country, and sent threatening texts. He set up a Facebook page with a name close to the victim and posted sexually explicit photos, videos and messages. He also sent compromising photos to her colleagues, friends, and even her boss. The victim presented substantial evidence that she has endured severe emotional distress. The defendant was convicted and sentenced to 46 months.

The Statute:

18 U.S.C. § 2261A(2)(A) provides:

Whoever . . . (2) with the intent — (A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States . . . uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person . . . shall be punished as provided in section 2261(b) of this title.

Defendant’s Main Argument:

Among other claims, the defendant argued that the statute was unconstitutionally applied to his protected speech.   While noting that the First Amendment prohibits any law which “abridges the freedom of speech, the Court discussed the various exceptions.  Those include obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. When certain speech is integral to the commission of a crime, the Court held, the First Amendment defense is not available.  In this case, the defendant’s communications were integral to the crime, as they were the means of carrying out the harassment of victim, which resulted her emotional distress. The Court further held that Osinger’s speech was not protected because it involved “sexually explicit publications concerning a private individual.” The Court noted that there was no public interested in the sexual activities of the victim, nor the embarrassing facts that were revealed about her private life.

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