United States v. Uhlenbrock
In United States v. Uhlenbrock, 125 F.4th 217 (5th Cir. 2024), the Fifth Circuit affirmed the defendant’s conviction for cyberstalking under 18 U.S.C. § 2261A(2)(B), and it rejected his argument that the conviction was a violation of the First Amendment.
Background: A jury convicted Uhlenbrock of cyberstalking because he had published his ex-girlfriend’s nude images and videos on Reddit, along with "exhibitionist” stories he wrote in her name. At trial, the ex-girlfriend victim testified that four years before these posts, Uhlenbrock had pled guilty to cyberstalking based on very similar conduct. She explained that Uhlenbrock had been doing things like this since at least 2006, and she had ended their relationship in 2007.
Issue 1: Did this conviction violate the First Amendment given that Uhlenbrock was convicted for online speech—his Reddit posts? The Government conceded that the Reddit posts constituted speech, but it argued that they were unprotected speech: defamation, speech integral to criminal conduct, and obscenity.
Held: No. The Fifth Circuit held that these posts, particularly the allegations that the victim had shared these videos and stories voluntarily, constituted defamation, which is unprotected under the First Amendment.
The familiar elements of defamation are “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Restatement (Second) of Torts § 558 (Am. Law Inst. 1977).
Issue 2: Is 18 U.S.C. § 2261A(2)(B) unconstitutionally vague because it fails to define “substantial emotional distress” or to clarify when conduct is “reasonably expected” to cause such distress?
Held: No. Both phrases are “easily understood,” and they “clearly proscribed” Uhlenbrock’s conduct.
Issue 3: Did the district court err by allowing the victim to testify about Uhlenbrock’s prior bad conduct?
Held: No. Under Rule 404(b), the evidence was relevant to Uhlenbrock’s intent, and it was not unduly prejudicial. In part, this testimony “helped to dispel a myth that Uhlenbrock concocted at trial. He [said] that he had no idea that YT would ever see the pictures and, thus, that he couldn’t have intended to harass her.”
Issue 4: Was the evidence sufficient on two points: (1) whether Uhlenbrock “intended to harass or intimidate” the victim, and (2) whether the victim suffered substantial emotional distress.
Held: Yes, the evidence was sufficient. First, in his Reddit posts, Uhlenbrock posed as the victim and “sen[t] strange men to find her” and “invited readers to ‘keep an eye out for [her] when’ flying on the airline where she worked as a stewardess. Although Uhlenbrock argued that he had not directed his posts to the victim, there was enough evidence that a rational jury could find he intended to harass her. On appeal, that is enough to affirm a trial conviction.
Second, a jury can convict if it finds that the defendant’s conduct was “‘reasonably expected’ to cause substantial emotional distress, even if it did not cause such distress.” Here, there was enough evidence for a rational jury to make not only that finding but also to find that Uhlenbrock had actually caused his victim substantial emotional distress, not least because of her testimony to that effect.