The United States Court of Appeals for the Third Circuit recently upheld the federal cyberstalking statute against a constitutional challenge. See United States v. Ho Ka Yung, 37 F.4th 70 (3d Cir. 2022). The Third Circuit narrowly construed the statute’s intent element to require an intent to make the victim fear death or bodily injury or to cause the victim distress through threats or intimidation.
According to the opinion, the case begins with Yung’s application to Georgetown Law. The admission interview went poorly, and Yung was rejected. In turn, Yung allegedly embarked on a cyber-campaign against the unsuspecting interviewer, including creating fake blog posts as the interviewer bragging about raping women and children, filing false reports accusing the interviewer of sexual assault, and impersonating the interviewer’s wife in online sex ads. After the FBI became involved, Yung was charged with cyberstalking.
Under the federal cyberstalking statute, a defendant is a cyberstalker if he satisfies three elements:
- An act. The defendant must “use the mail, any interactive computer or electronic communication service or . . . system . . . , or any other facility of interstate or foreign commerce” at least twice. 18 U.S.C. § 2261A(2); see also § 2266(2).
- An intent. He must have acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.” § 2261A(2).
- A result. His actions must cause some emotional response. They must either put the target “in reasonable fear of . . . death . . . or serious bodily injury,” or “cause, attempt to cause, or . . . be reasonably expected to cause substantial emotional distress.” § 2261A(2)(A), (B).
Yung challenged the cyberstalking statute as overbroad and facially invalid under the First Amendment, arguing that the statute criminalized a substantial amount of protected free speech. The Third Circuit acknowledged that the statute’s element requiring “intent to . . . harass [or] intimidate” could be read broadly to reach protected speech (e.g., complaints sent to politicians and negative business reviews). The court also recognized that the First Amendment protects “at least some speech that persistently annoys someone and makes him [generally] fearful or timid.”
The Third Circuit rejected Yung’s challenge and upheld the cyberstalking statute by holding that the statute’s intent element must be read narrowly. Specifically, the court held that the statute covers only acts where the defendant intended to “put the victim in fear of death or bodily injury” or to “distress the victim by threatening, intimidating, or the like.” An intent to cause an emotional reaction generally (e.g., annoyance) is not enough.
The Third Circuit’s narrow reading “ensure[s] that protected speech largely escapes the law’s net.” With this opinion, the Third Circuit “join[s] every other circuit that has evaluated the law” (i.e., the First, Sixth, Eighth, and Eleventh Circuits).