Conviction for Cyberstalking & Revenge Porn Survives First Amendment Challenge

There’s no way to look at what Shawn Sayer did and think that he should not suffer some criminal consequences. After breaking up with his girlfriend of a couple of years (Doe), he engaged in a vicious and ongoing campaign of stalking and harassment. His campaign included creating fake profiles for Doe on social networking and adult social networking sites, posting explicit photos and video of her, posting her address and tracking her down when she moved, and explicitly encouraging people to show up to her house to ask for sex. He did not stop despite her getting a protection order.

He finally stopped when he was arrested (for violating the no-contact order).

The opinion discusses Doe’s testimony about the effect of Sayer’s stalking and harassment:

From November [2008] until [Sayer] was arrested in July of 2010 man after man showed up at my house. It didn’t matter the time of day; . . . I couldn’t open my windows to let the fresh air in. I couldn’t keep my blinds open to light. I felt scared to walk 25 feet out to my car. No longer was I afraid of just [Sayer]; I was afraid of any man who came near me because he was a potential predator. . . .

It’s very hard to sleep at night when there are predators coming to your home and banging on your windows. It’s very hard to do anything. It’s hard to live.

[Sayer] had every intention o[f] terrorizing me and maybe even hurting me. I don’t know how many times [a detective] called me up to say, . . . [Sayer] has planned a gang bang at your home tonight; you may not go home. Don’t go home. It’s not a safe place. …

I can’t even describe to you, really, in the words that I’m telling you how this has impacted my life . . . . I am forever changed. I will truly never be safe. . . . And so I am fearful of what happens when [Sayer] does get out of jail. . . . He knows what he did. He purposely did it. And I’m not so sure that it won’t happen again. . . .

Sayer pled guilty to a cyberstalking charge while reserving the right to appeal from the court’s denial of his motion to dismiss the indictment. On appeal, he raises both a facial and as-applied First Amendment challenge. The First Circuit rejects these challenges.

The court says that a course of conduct can be proscribed, notwithstanding that it involves speech. The court relies on the “speech that is integral to criminal conduct” exception and says that here, although Sayer is being punished for his expression, this expression was integral to the criminal conduct. (This argument always feels circular to me in this context.) The court also cites to an Eighth Circuit decision rejecting a similar challenge also involving a revenge porn fact pattern.

__

The statute in this case reaches a course of conduct (undertaken with the intent to “kill, injure, harass, or intimidate, or cause substantial emotional distress”) that:

causes substantial emotional distress to [a person] or places that person in reasonable fear of death or serious bodiily injury.

This was the same statute that the district court said in US v. Cassidy could not be constitutionally applied to criminalize the persistent criticism of a religious figure via blogs and Twitter. While the court in that case did not rule on the facial validity of the statute, it did say that the restriction in question was not narrowly tailored to the asserted governmental interest of preventing severe emotional distress inflicted via computer services. Cassidy was engaged in political speech through public venues.

Some key differences between Cassidy and this case: Cassidy involved a public figure, the speech was arguably not one-to-one speech, and did not result in the same fear of death or serious bodily injury.

Cassidy noted that the statute was broadened in 2006 to encompass “substantial emotional distress and harassment.” (For a discussion of the recent changes and some of the First Amendment concerns they raise, see this post from the ACLU: “New Expansion of Stalking Law Poses First Amendment Concerns“.) Previously, it only reached conduct that placed another person “in reasonable fear of death of serious bodily injury.” And the recent changes still present an open question from a First Amendment standpoint (of whether pure speech which causes emotional distress can be criminalized consistent with the First Amendment). Given that Sayer expressed a clear intent to place Doe in fear of her life & bodily health, and engaged in a course of conduct that resulted in this fear, this case does not answer the broader question of the appropriate scope of restrictions on speech that merely results in emotional distress. This case is better viewed as a true threat case than one that deals with emotional distress. For the same reason, I don’t think it offers a good benchmark for the typical revenge porn case. For what it’s worth, I think Snyder v. Phelps is one of the more illuminating cases on this topic, and that case can be read to say that this type of speech can be circumscribed (in the civil setting), albeit in a narrow set of circumstances.

Case citation: US v. Sayer, No. 12-2489 (1st Cir. May 2, 2014)

Related posts:

Facebook Posting That Someone Has Herpes Is Criminal Harassment–Pennsylvania v. Cox

Facebook Posting of Criminal Trial’s Witness List Isn’t a “True Threat”–US v. Amaya

Crass and Offensive Tweets by Student May not Justify Suspension — Rosario v. Clark County School Dist.

Court Rejects Challenge to Indictment Over Facebook Threats — US v. Michael

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a “True Threat” — US v. Jeffries

Federal Prosecution Over “Threats” on Craigslist – US v. Stock

Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

Former Employee’s ‘Email Barrage’ Does Not Support CAN-SPAM or Computer Fraud and Abuse Act Claims — Nyack Hosp. v. Moran

Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act — Pulte Homes, Inc. v. LiUNA

 

Category: Product #: Regular price:$ (Sale ends ) Available from: Condition: Good ! Order now!
Reviewed by on. Rating: