Court Rejects First Amendment Challenge Against Cyberharassment Charge
Defendant worked at the Leukemia and Lymphoma Society. He pled guilty to bribery, mail fraud, and conspiracy related to his allocation of printing contracts at LLS. He was sentenced to five years. John Walter, then LLS’s CEO, apparently provided information and cooperated with law enforcement regarding defendant’s acts.
While incarcerated, defendant mailed letters to Walter stating that Walter allegedly molested Walter’s own daughter and threatened to disseminate his mug shot. To another LLS executive, defendant alleged that Walter was arrested for molestation and that defendant received a sentence because Walter bought off a judge. (Walter had never been arrested for these acts.) Following his release from prison, defendant created and maintained websites containing similar statements. The websites averred that they consisted of “only facts”. The websites included numerous other negative statements about Walter (e.g., that he “enjoys beating helpless animals”; “can rape your wife, molest your children and burn down your house”). The websites contained other statements critical of LLS’s management. Defendant also created a Facebook page containing similar information. He also posted statements on other websites and emailed much of this content to LLS donors, the media (the New York Post and a Missouri TV station), and others (the principal of Walter’s children’s school). Defendant was charged with witness retaliation and cyberstalking under federal statutes.
Defendant sought to dismiss the indictment on First Amendment grounds, but the court declines. The court struggles with whether the statements in question are unprotected speech and ultimately decides that they are.
It says that the statements are “integral to criminal conduct” because they are the principal means by which defendant waged a “campaign of retaliatory harassment against Walter.” The government relied on several cases where the court rejected First Amendment challenges in harassment cases. Interestingly, they all involved revenge porn. Defendant on the other hand pointed to US v. Cassidy, a Twitter harassment case that upheld a First Amendment challenge against a stalking charge. The court distinguishes Cassidy on the basis that it involved a public figure. That’s not the case here, where the putative victim is neither a general or limited-purpose public figure. Even if the victim was a public figure, the court says that the statements are not a matter of public concern, but rather involved a campaign of (private) harassment.
Second, the court also concludes that the speech is unprotected because it is defamatory. The websites in question all indicated that they contained opinions, but the words themselves belied these contentions. Some of the iterations of the websites also contradictingly indicated that they contained facts. Some of the statements were also made in pointed off-line communications and involved language that were “precise and literal.” This pointed in the direction of factual communications rather than opinions. Further, the court says that defendants’ assertions that the victim had been arrested for molestation and for “case fixing” were verifiably false.
Finally, having found the speech unprotected on other grounds, the court finds it unnecessary to rule on the government’s argument that the statements constituted true threats.
This is a somewhat unsatisfying decision that shows the troubling reach of the federal cyberstalking statute. The court cites to the revenge porn cases, but it makes no effort to discuss whether those cases found the statements unprotected due to bad conduct or their unique factual circumstances. Perhaps the ruling shows the murky nature of finding revenge porn unprotected and the spillover effect it can create. Those cases involve some discussion of speech integral to the criminal conduct exception as well, and as in those cases, this case’s doctrinal analysis feels circular. (See also the recap of Osinger (“Revenge Porn/Cyberstalking Conviction Doesn’t Violate First Amendment–US v. Osinger“).)
The court’s rationale that the speech is unprotected because it is defamatory is similarly unsatisfying. Speech that is defamatory isn’t unprotected per se. The decisions generally hold that liability can attach where there is reputational harm (i.e., in the context of a defamation lawsuit) but that does not mean the speech is unprotected generally. In fact, the Supreme Court has made clear in another context that just because speech is false does not mean that it is necessarily unprotected (Alvarez).
Ultimately, this could amount to another instance of a campaign of antagonism that is being shoehorned into the cyberharassment statute. Courts have a surprising tolerance for this. (See also the lower court opinion in Chan v. Ellis, later reversed by the Georgia State Supreme court.) As with the other cases in this genre, you have to wonder whether it makes sense to say that someone who says bad stuff about you is really cyberstalking you.
Case Citation: US v. Sergentakis, 2015 U.S. Dist. LEXIS 777 (S.D.N.Y. June 15, 2015)