Cyber Harassment Update: Elonis, Sergentakis and John Oliver

This has been a busy month on the cyber harassment legal front, with the biggest development being the Supreme Court’s decision in Elonis v. United States concerning criminal liability for threats made over Facebook. Also of note is a federal district court decision in Sergantakis refusing to dismiss a witness intimidation/stalking indictment on First Amendment grounds; John Oliver’s call for a federal revenge porn law and Rep. Katherine Clark’s (D-MA) cyber harassment rider to the Justice Department budget.

Elonis Supreme Court Decision – Not Condoning Threats

In Elonis v. United States, the Supreme Court addressed the legml standard for criminal liability for threats made over Facebook. Elonis’ threats included the following

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.

Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say

That’s it, I’ve had about enough I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class The only question is . . . which one?

Elonis was convicted under 18 U.S.C. § 875(c) (“transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another”) and the argument on appeal was whether prosecutors had to show intent for the threat. The Supreme Court reversed the conviction holding that intent was required and remanded the case for further deliberations.

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I was asked to discuss the case on HuffPost Live and explained that the case was being misreported by the media that threats were now permitted online. The decision was a narrow technical one that merely stated that there must be showing of intent or recklessness and Elonis’ conviction could still be upheld on appeal.

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Sergentakis Witness Intimidation Dismissal Rejected by SDNY

Defendant Sergantakis was employed by the Leukemia and Lymphoma Society (“LLS”) before pleading guilty to a bribery and mail fraud scheme. Once in jail, he sent repeated emails to LLS’ Chief Financial Officer and later its Chief Executive Officer threatening that

[e]very person on the planet will know that you are a dangerous child molester,” and “I’ll be everywhere warning people . . . when I am released I will be outside where you live, work, eat, whatever . . . I will never give up . . . [a]s long as I live this will never end.” The letter concluded, “This hasn’t even started yet.”

He then proceeded to send statements to the media falsely stating that the target was “arrested for child molestation and case fixing” and abuse animals. He was charged with witness retaliation against Walter (identified as “Victim-1” in the Indictment), in violation of 18 U.S.C. § 1513(e) and cyberstalking in violation of 18 U.S.C. § 2261A(2). Sergantakis sought to dismiss the indictment on First Amendment grounds

The court denied the motion finding that the speech was not protected because it was defamatory and because

“[a]ny expressive aspects of [the defendant’s websites, letters, and emails described herein] were not protected under the First Amendment because they were integral to criminal conduct in intentionally harassing, intimidating or causing substantial emotional distress to” the defendant.

This is an important decisions, since as the prosecutor in the ongoing RipOffReport investigation in Iowa explained

No greater threat to our criminal justice system exists than allowing convicted, incarcerated murderers (criminals), and their friends and family, to destroy the livelihoods and personal reputations of the people brave enough to testify against them in open court.

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John Oliver Endorses Federal Revenge Porn Legislation; Clark Amendment Passes House

John Oliver, the host of HBO’s Last Week Tonight, who almost single-handedly saved Net Neutrality with his famous Dingo rant, has now embraced federal legislation to address revenge porn (although the legislation has not yet been introduced). Oliver featured University of Maryland Professor Danielle Citron who has been a thought-leader on cyber harassment issues.

The move comes on the heels of efforts by Rep. Katherine Clark (D-MA) to push the Justice Department to do more to combat cyber harassment. (See prior post Rep. Clark Challenges DOJ to Increase Enforcement Against Online Harassment)

Clark pointed out that:

[a]lthough laws against violent online threats already exist, enforcement is drastically lagging. Of the estimated 2.5 million cases of cyberstalking that occurred in the U.S. between 2010 and 2013, federal prosecutors pursued only 10 cases. Citron, D. (2014). Hate crimes in cyberspace (p. 132)

Clark succeeding in attaching language to the House-passed Justice Department appropriation urging increased enforcement:

Enforcement of Federal cyber-stalking and threat crimes.—The Committee is aware of concerns regarding increased instances of severe harassment, stalking, and threats transmitted in interstate commerce in violation of Federal law. These targeted attacks against Internet users, particularly women, have resulted in the release of personal information, forced individuals to flee their homes, has had a chilling effect on free expression, and are limiting access to economic opportunity. The Committee strongly urges the Department to intensify its efforts to combat this destructive abuse and expects to see increased investigations and prosecutions of these crimes.