Third Circuit--Yung

Eugene Volokh, reports on United States v. Yung.

The court concludes that the federal "cyberstalking" statute covers only speech intended to "put the victim in fear of death or bodily injury" or to "distress the victim by threatening, intimidating, or the like."

Essentially the court finds that the statute, as construed by the prosecution, is overbroad and can offend the First Amendment. The statute requires

• An act. The defendant must "use[] the mail, any interactive computer service 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. Finally, 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). Because Yung pleaded guilty to the emotional-distress result element, we focus on that one….

The court discusses how application of the "result" can be interpreted to narrow the statute and avoid First Amendment concerns. Volokh also links to several articles on how this type of statute can be overbroad and veer into First Amendment problems.