Cyberstalking Conviction for E-Mails to Nebraska Legislature Candidate Reversed
From U.S. v. Sryniawski, decided yesterday by the Eighth Circuit (Judge Steven Colloton, joined by Judge Bobby Shepherd and Chief Judge Lavenski Smith):
Dennis Sryniawski was charged with federal offenses of cyberstalking and extortion after he sent a series of e-mails to a candidate for the Nebraska legislature. A jury acquitted Sryniawski of extortion but convicted him of cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B)…. We conclude that the evidence was insufficient under a proper interpretation of the cyberstalking statute, and therefore reverse the conviction….
Section 2261A(2)(B) is potentially quite broad, on its face something like the criminalization of the intentional infliction of emotional distress tort, limited to electronic communications, but with no exception for speech on matters of public concern (even though the Court held in Snyder v. Phelps and Hustler v. Falwell that speech on matters of public concern is protected against emotional distress liability by the First Amendment):
A defendant is guilty of cyberstalking if he (1) “with the intent to … harass [or] intimidate,” (2) uses “any … electronic communication system of interstate commerce … to engage in a course of conduct,” that (3) “causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to” the victim or his immediate family.
The court concluded (I think generally correctly) that the statute must be read narrowly to avoid First Amendment problems:
The mens rea element, as charged in this case, requires that a defendant act with the intent to “harass” or “intimidate.” If these terms are construed in their broadest sense, however, they would infringe on rights protected by the First Amendment. Broadly defined, “harass” can mean simply “to vex, trouble, or annoy continually or chronically.” “Intimidate” can mean “to make timid or fearful.”
Even where emotional distress is reasonably expected to result, the First Amendment prohibits Congress from punishing political speech intended to harass or intimidate in the broad senses of those words. The Free Speech Clause protects a variety of speech that is intended to trouble or annoy, or to make another timid or fearful. In Snyder v. Phelps (2011), for example, the Supreme Court held that protestors at a serviceman’s funeral had the right to display signs that read, “Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.” In R.A.V. v. City of St. Paul (1992), the Court declared unconstitutional a criminal ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that the perpetrator had reasonable grounds to know would arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Hustler Magazine, Inc. v. Falwell (1988), held that the First Amendment protected a parody that depicted a prominent minister having drunken sex with his mother. See also Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001) (Alito, J.) (“There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.”). For this reason, the cyberstalking statute cannot be applied constitutionally to a defendant who directs speech on a matter of public concern to a political candidate with intent merely to trouble or annoy the candidate.
To sustain the conviction in this case, therefore, the government must identify sufficient evidence for a jury to find that Sryniawski acted with intent to “harass” or “intimidate” in a sense that is not pro
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