Third Circuit Upholds Federal Cyberstalking Statute Against Constitutional Challenge

The Third Circuit issued an opinion this week upholding the federal cyberstalking statute against a constitutional challenge in United States v. Ho Ka Yung. Mr. Yung was convicted of cyberstalking after he instituted a campaign of harassment against a Georgetown Law alumnus interviewer and his family. Though he pled guilty, Mr. Yung preserved the right to appeal his conviction on the grounds that 18 U.S.C. §2261(A)(2), the federal statute criminalizing cyberstalking, is unconstitutional because it criminalizes speech protected by the First Amendment. The Third Circuit upheld Mr. Yung’s conviction, finding that a narrower reading of the statute prevented the majority of protected speech from being swept into its purview.

The facts of this case serve as stark example of the real harm that can be inflicted through online behavior.

A year after being denied admission at Georgetown Law, Mr. Yung began a campaign of harassment online against the Georgetown alumnus who had interviewed him as part of the application process. Mr. Yung published false obituaries for the interviewer’s wife and son, created false social media profiles associating the interviewer with the Ku Klux Klan, and published blog posts in the interviewer’s name that bragged of raping women, a boy, and an eight-year-old girl. Mr. Yung posed as a female Georgetown applicant, accusing the interviewer of sexual assault. Mr. Yung’s harassment also targeted the interviewer’s family. Impersonating the interviewer’s wife, Mr. Yung published online ads, in one instance seeking a sex slave and instructing a man who responded to spy on the family, and in another instance claiming that she wanted men to use weapons to physically threaten her before initiating forcible sex. As a result of some of these ads, unknown men came to the interviewer’s home in the middle of the night on three consecutive nights. The online harassment caused real-life threats to the family’s safety.

In his First Amendment challenge, Mr. Yung did not argue that the conduct he was convicted for was protected by the First Amendment. Instead, Mr. Yung argued that the statute as a whole should be struck down for being overbroad because a significant portion of what it criminalizes is protected conduct. Statutes will only be found facially invalid when they prohibit a wide range of constitutionally protected activity in relation to their legitimate sweep. Courts are reticent to invalidate entire statutes, and as the Third Circuit demonstrated this week, the principle of constitutional avoidance dictates that when several interpretations are available, courts should choose the one that permits a statute to withstand a constitutional challenge.

The challenged federal cyberstalking statute contains three elements. A person can be convicted if they (1) “use the mail, any interactive computer service or … system …, or any other facility of interstate or foreign commerce” at least twice, (2) do so “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person,” and (3) put the victim “in reasonable fear of … death … or serious bodily injury,” or “cause, attempt to cause, or … be reasonably expected to cause substantial emotional distress.” §2261(A)(2). Mr. Yung argued that this statute was unconstitutionally overbroad because it would criminalize mere online “trolling,” including large amounts of constitutionally protected speech like harsh political criticism or negative reviews of literary or artistic endeavors.

In its decision this week, the Third Circuit acknowledged that this broad reading is a plausible – if not the most natural–interpretation of the statute. Both “harass” and “intimidate” can be defined to cover a range of conduct that would clearly be protected by the First Amendment. Nonetheless, applying the doctrine of constitutional avoidance, the court interpreted both terms narrowly. The court held that to “intimidate” for the purposes of §2261(A)(2), a defendant must have put the victim in fear of bodily injury; to “harass,” the defendant must “distress the victim by threatening, intimidating, or the like.” Under these definitions, which the court referred to as “criminal” definitions of harassment or intimidation, the statute is not unconstitutionally overbroad.

While the facts of Yung exemplify the need for regulation of online behavior, the questions raised by the appeal demonstrate the challenges of drawing appropriate contours for that regulation.

The intent, action, and result elements of the cyberstalking statute were all clearly met in Yung. Mr. Yung created countless pieces of threatening and abusive content targeting his victim, and he intentionally sent people to harass and threaten his victim’s family. In many cases, however, real harm will be effected online where one or more of the statute’s elements are murkier. The Third Circuit’s refined definitions of criminal harassment and intimidation will govern those cases, but the questions about how and where to draw the line when regulating online speech will continue to challenge courts. This week’s decision simply affirms that the Constitution permits the government to use an intent to intimidate or an intent to harass as tools for drawing that line.

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