The federal anti-stalking statute does not violate the First Amendment because it criminalizes conduct rather than infringing on speech, a federal appeals court has ruled.

The appeals court reached its decision to uphold the conviction of a man in his forties who harassed a minor teenager with repeated requests for sexually explicit photos. 

David Ackell, the defendant, began an online relationship with a 16-year-old girl.  Ackell would ask for sexually explicit photos and the girl would comply.  Eventually, Ackell said the relationship was a “dominant-submissive” one with he as the dominant and the girl as the submissive.   Under this arrangement, Ackell would call the girl “caged butterfly” and require that she call him “owner.”  He also frequently demanded sexually explicit photos.

The girl pleaded with Ackell to let her go from the relationship.  Eventually, the girl told her father about Ackell’s conduct.  Her father contacted law enforcement.  A grand jury indicted Ackell for violating the federal anti-stalking statute, which criminalizes:

With the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that . . . causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress [to the victim.]

A jury convicted Ackell of stalking and a judge sentenced him to 33 months in prison.   Ackell appealed, contending that the anti-stalking statute was unconstitutionally overbroad, because it criminalized a substantial amount of protected speech in addition to proscribable conduct.

1st Circuit rejects argument that stalking statute is overbroad

However, a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously upheld the statute and affirmed Ackell’s conviction in its October 24, 2018, decision in United States v. Ackell.   The First Circuit noted that the statute regulates conduct, not speech. 

The appeals court acknowledged that the statute may reach some expressive conduct but that the law “also covers countless amounts of unprotected conduct.”   

The court reasoned that “Ackell has not met his burden of demonstrating that factually, the statute could apply to a substantial amount of protected speech, in an absolute sense and in relation to its many legitimate applications.”   This was fatal to Ackell’s overbreadth challenge because he had to show that the statute was substantially overbroad

Ackell and the American Civil Liberties Union, which filed an amicus brief, contended that the statute criminalized protected speech because it could apply to prohibit expression that does not cross the line into a true threat or speech integral to criminal conduct.  For example, they argued the statute could prohibit someone from posting speech online twice with the intent to harass another.  Such harassing speech is protected under the First Amendment. 

The First Circuit responded by saying that the statute could be applied in an unconstitutional way.  For example, a federal district court in Maryland found in United States v. Cassidy (2011) the anti-stalking unconstitutional as applied to a defendant who anonymously harassed a religious leader on Twitter. 

However, there is a significant difference in constitutional law between holding a law unconstitutional as applied to a particular defendant and in holding a law facially overbroad.   If a law is unconstitutional as applied, the law still applies to others.   However, when a court facially invalidates a law, it cannot be applied to any defendant. 

Ackell also argued that the law was an impermissible content-based restriction on speech.  However, the First Circuit responded once with the speech-conduct distinction, saying that the law targeted conduct instead of speech.

David L. Hudson, Jr. is a Visiting Associate Professor of Legal Practice at Belmont University Law School.  He also is the author or co-author of several First Amendment books, including The First Amendment: Freedom of Speech (2012).